RIVES, Circuit Judge.
Estis L. Gibbs, formerly a private in the United States Army but now an inmate of the United States Penitentiary in Atlanta, filed a petition for habeas corpus challenging (1) the right of the United States to further confine him after 20 years in prison or on parole, and (2) the validity of his conviction by court-martial at Munich, Germany, in July 1945. Gibbs contends that he is now serving a 15-year sentence but has spent 20 years either in prison or on parole, and, therefore, that the United States has no right to further detain him. Gibbs further contends that he was denied effective assistance of counsel in the preparation and trial of his case, and, therefore, that his rights guaranteed by the Fifth and Sixth Amendments were violated.
Gibbs' sentence was later reduced to 20 years and both the petitioner and the United States seem to agree that it has been further reduced to 15 years. Gibbs has been paroled three times. Although the record is not entirely clear, it appears that on each occasion his parole was revoked because he became intoxicated in violation of a parole provision forbidding the use of alcohol. At the time of his petition Gibbs had spent approximately 10 years and 6 months in prison and 7 years and 8 months in constructive custody while on parole.
Gibbs, by his initial petition for a writ of habeas corpus filed September 15, 1964, challenged only his detention on a 15-year sentence after serving over 18 years in actual or constructive custody. In two terse orders dated October 2 and 12, 1964, the district court held that "petitioner is not entitled to credit against his sentence for the time during which he was released on parole status * * *," citing 18 U.S.C. §§ 4164, 4207. We are sure that the district court also intended to cite 18 U.S.C. § 4205 [the former § 723(c)]. Section 4205 reads as follows:
Whether or not this provision represents sound policy may be open to question,
But a statute may be constitutional as applied in some situations and unconstitutional as applied in others. Sims v. Baggett, 247 F.Supp. 96 (M.D. Ala., Oct. 2, 1965) cases collected n. 7, and accompanying text. In the instant case, petitioner claims that he has lost over seven years' time on parole because he became drunk on three occasions. The allegedly harsh application of § 4205 in this case raises serious constitutional questions. Such difficult questions deserve more attention than the pithy opinion filed by the district court. Without a fully developed record, this Court is in no position to judge the circumstances surrounding Gibbs' parole revocations. Accordingly, this case is remanded for the development of a full record and reconsideration in the light of the views expressed in this opinion. United States v. Petrillo, 332 U.S. 1, at 6, 67 S.Ct. 1538, 91 L.Ed. 1877 (1947); Polk Co. v. Glover, 305 U.S. 5, at 10, 59 S.Ct. 15, 83 L.Ed. 6 (1938); Borden's Farm Products Co. v. Baldwin, 293 U.S. 194, at 213, 55 S.Ct. 187, 79 L.Ed. 281 (1934); Connor v. New York Times Co., 310 F.2d 133, at 135 (5 Cir. 1965).
In his second request to the trial court for reconsideration, filed December 17, 1964, Gibbs for the first time raised the question of inadequate counsel at his court-martial. In a two-paragraph opinion, the district court dismissed this contention, noting that the procedures adopted by Congress for court-martials had been followed.
The scope of review adopted by the district court amounted to little more than a technical review of jurisdiction. Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953), if it accomplished nothing else, conclusively rejected the concept advocated by Justice Minton that habeas corpus review should be restricted to questions of formal jurisdiction. Cf. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), and the opinion of Justice Frankfurter in Burns v. Wilson, 346 U.S. 844, 74 S.Ct. 3, 98 L.Ed. 363 (1953).
In reviewing military convictions, the courts must be on guard that they do not fail to perceive the difference between reviewing questions of fact and law. This is especially true at the constitutional level. Cf. Townsend v. Sain, 372 U.S. 293, at 318, 83 S.Ct. 745, 9 L.Ed.2d 770 (1962). In Burns, Chief Justice Vinson said (346 U.S. at 142-143, 73 S. Ct. at 1049):
Chief Justice Vinson went on to explain as follows (346 U.S. 144, 73 S.Ct. 1050):
Of course, in Burns the Court did undertake a detailed review of the facts as found by the military courts. Accord, Rushing v. Wilkinson, 272 F.2d 633 (5 Cir. 1959).
Gibbs' petition goes to the very heart of a fair trial. The military code under which he was tried by its terms did not require Gibbs to be provided with competent counsel in this capital case. Therefore, the military court may not have reviewed the question raised by Gibbs' petition. Under these circumstances a trial de novo of the issue may well have been required. Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953); Swisher v. United States, 237 F.Supp. 921 (W.D.Mo. 1965). Cf. In re Stapley, 246 F.Supp. 316 (D.Utah, Oct. 1, 1965).
We are not required to decide the exact scope of review on this appeal. What we can say is that very serious constitutional questions have been raised. In re Stapley, supra. There has been no claim by the United States that the exigencies of war required Gibbs to place his life on the sacrificial altar of justice with no shield but a counsel who had never been in a court room before the day of Gibbs' trial. The record before us is clearly inadequate. The district court erred in not giving Gibbs a full hearing and in not developing a record on which these important issues could be met and judged. Swisher v. United States, 326 F.2d 97 (8 Cir. 1964). Cf. United States v. Petrillo, 332 U.S. 1, at 6, 67 S.Ct. 1538, 91 L.Ed. 1877 (1947); Polk Co. v. Glover, 305 U.S. 5, at 10, 59 S.Ct. 15, 83 L.Ed. 6 (1938); Borden's Farm Products Co. v. Baldwin, 293 U.S. 194, at 213, 55 S.Ct. 187, 79 L.Ed. 281 (1934); Connor v. New York Times Co., 310 F.2d 133, at 135 (5 Cir. 1965). Accordingly, this case is remanded for the development of a full record and reconsideration in the light of the views expressed in this opinion.
Reversed and remanded.