Whether the Councilman abstention applies to former servicemembers who were statutorily discharged prior to court-martial charges and proceedings

QUESTION PRESENTED In United States ex rel. Toth v. Quarles, this Court held that the armed forces could not constitutionally court-martial “civilian ex-soldiers had had severed all relationship with the military and its institutions,” 350 US. 1, 14 (1955), even for offenses committed while on active duty. In Schlesinger v. Councilman, this Court held “when a serviceman charged with crimes by military authorities can show no harm other than that attendant to resolution of his case in the military court system, the federal district courts must refrain from intervention, by way of injunction or otherwise.” 420 U.S. 738, 758 (1974). Petitioner is a former officer involuntarily discharged from the U.S. Army as mandated by the non-discretionary requirements in 10 U-S.C. § 632 and was later tried and convicted by a court. martial without military status for alleged offenses committed while on active duty. The court-martial findings and sentence was later set aside by the Army Court of Criminal Appeals, and appealed by the U.S. Army Judge Advocate General pursuant to 10 U.S.C. § 867(a)(2) (Article 67(a)(2), Uniform Code of Military Justice (UCMJ)) to the Court of Appeals for the Armed Forces. Petitioner requested a continued confinement hearing as matter of right pursuant to-10 US.C. § 857a(c) ; ike i (Article 57a(c) UCMJ) and United States v. Miller, 47 M.J. 356 (CAAF, 1997) to present facts showing he was involuntarily discharged pribr to the court-martial, but was denied this hearing. Petitioner filed a writ of habeds corpus, 28 US.C. § 2241 and requested injunctive relief at the federal court to compel the Secretary to QUESTION PRESENTED . . (continued) mo conduct the continued confinement hearing so the Secretary determine whether to release Petitioner on the basis of having no military status prior a court-martial, or in the alternatively Petitioner requested the federal court to conduct an evidentiary hearing to determine Petitioner’s legal status. The lower courts denied any relief based on the “Councilman abstention” although Petitioner substantiated a claim he is not a servicemember. _ : The question presented is: : Whether the Councilman abstention applies to former servicemembers who were statutorily discharged prior to court-martial charges and proceedings . A TAP AG ,