Id. at 655, 69 F. Supp. at 208. See Sima v. United States, 96 F. Supp. 932, 938, 119 Ct.Cl. 405, 426 (1951); Fly v. United States, 100 F. Supp. 440, 442, 120 Ct.Cl. 482, 498 (1951); Lucas v. United States, 121 Ct.Cl. 819, 828 (1952); Graham v. United States, 136 Ct.Cl. 324, 327-328 (1956), cert. denied, 353 U.S. 917, 77 S.Ct. 663, 1 L.Ed.2d 663 (1957); Krivoski v. United States, 145 F. Supp. 239, 243, 244, 136 Ct.Cl. 451, 458-459 (1956), cert. denied, 352 U.S. 954, 77 S.Ct. 326, 1 L.Ed.2d 243; Griffiths v. United States, 172 F. Supp. 691, 693, 145 Ct.Cl. 669, 672-673, 678 (1959), cert. denied, 361 U.S. 865, 80 S.Ct. 128, 4 L.Ed.2d 107; Begalke v. United States, 286 F.2d 606, 609, 148 Ct.Cl. 397, 402 (1960), cert. denied, 364 U.S. 865, 81 S.Ct. 108, 5 L.Ed.2d 87; Narum v. United States, 287 F.2d 897, 898-899, 151 Ct.Cl. 312, 315-316 (1960), cert. denied, 368 U.S. 848, 82 S.Ct. 80, 7 L.Ed.2d 46 (1961). In Ashe, a former steward in the Navy, who had been dishonorably discharged pursuant to a court-martial conviction, brought an action "in the nature of mandamus" (under 28 U.S.C. § 1361 (1964), 76 Stat. 744 (1962)) against the Secretary of Defense to have his discharge changed from dishonorable to honorable.

Under the finality provision of section 876 it would appear that any appeal of a court-martial to this court arising in the posture of a suit for back pay would be prohibited. Cases have limited the reach of this statute by excepting collateral review through habeas corpus petitions, Whelchel v. McDonald, 340 U.S. 122, 71 S.Ct. 146, 95 L.Ed 141 (1950); Gusik v. Schilder, 340 U.S. 128, 71 S.Ct. 149, 95 L.Ed. 146 (1950), or by making exceptions for circumstances where a court-martial has so completely denied fifth or sixth amendment rights that the very jurisdiction of the court may be denied. Begalke v. United States, 286 F.2d 606, 148 Ct.Cl. 397 (1960), cert. denied, 364 U.S. 865, 81 S.Ct. 108, 5 L.Ed.2d 87; Shapiro v. United States, 69 F. Supp. 205, 107 Ct.Cl. 650 (1947). In the most recent Supreme Court case in which review of a court-martial was sought through a suit here for back pay, United States v. Augenblick, 393 U.S. 348, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969), the Court held that where the alleged infirmities at the court-martial fail to rise to a constitutional level, this court has no jurisdiction to collaterally review the conviction.

And both this court and the district courts must abide by its teaching. For other cases adhering to the procedure outlined in Burns, see Palomera v. Taylor, 344 F.2d 937 (C.A.10), cert. denied, 382 U.S. 946, 86 S.Ct. 405, 15 L.Ed. 2d 354 (1965); Gorko v. Commanding Officer, 314 F.2d 858 (C.A.10, 1963); Begalke v. United States, 286 F.2d 606, 148 Ct.Cl. 397, cert. denied, 364 U.S. 865, 81 S.Ct. 108, 5 L.Ed.2d 87 (1960); Thomas v. Davis, 249 F.2d 232 (C.A.10, 1957), cert. denied, 355 U.S. 927, 78 S.Ct. 385, 2 L.Ed.2d 358 (1958); Dickenson v. Davis, 245 F.2d 317 (C.A.10, 1957), cert. denied, 355 U.S. 918, 78 S.Ct. 349, 2 L.Ed.2d 278 (1958); Easley v. Hunter, 209 F.2d 483 (C.A.10, 1953). Accordingly, the order of the district court will be affirmed.

In the decisions in which we have referred to a denial of a petition for review by the Court of Military Appeals, we have also found, ourselves, no reason to think there was a jurisdictional defect (Moses v. United States, 137 Ct.Cl. 374, 379-380 (1957); Begalke v. United States, 286 F.2d 606, 609-610, 148 Ct.Cl. 397, 402-403 (1960), cert. denied, 364 U.S. 865, 81 S.Ct. 108, 5 L.Ed.2d 87). It is for that reason that we cannot accept, in this case, the Government's further point that, since plaintiff was accorded consideration within the military system of the constitutional objections he now advances, this court should not reconsider those objections for itself.

In accord, Day v. Wilson, 101 U.S.App.D.C. 69, 247 F.2d 60; Rushing v. Wilkinson, 5 Cir., 272 F.2d 633, cert. den. 364 U.S. 914, 81 S. Ct. 280, 5 L.Ed.2d 229; DeCoster v. Madigan, 7 Cir., 223 F.2d 906; Begalke v. United States, 286 F.2d 606, 148 Ct. Cl. 397, cert. den. 364 U.S. 865, 81 S.Ct. 108, 5 L.Ed.2d 87; Shaw v. United States, 357 F.2d 949, 174 Ct.Cl. 899. If Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508 accomplished nothing else, it "conclusively rejected the concept advocated by Justice Minton that habeas corpus review should be restricted to questions of formal jurisdiction."

If under such circumstances their piecemeal testimony before this inquisitorial body is admitted, I cannot escape the conclusion that plaintiff has been deprived of his constitutional right to be confronted by the witnesses against him, before the judges who try him and pass sentence upon him. In Begalke v. United States, Ct.Cl., 286 F.2d 606, decided January 20, 1960, we held that, if the court-martial and the reviewing authorities had given full and fair consideration to the claim of the accused that he was being deprived of his constitutional rights, it was not incumbent on a civil court to go over the same ground again. We said we understood this to be the holding of the Supreme Court in Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508. That, at least, was the view of the Chief Justice and three other Justices who concurred in his opinion.

        Even before enactment of this provision, court-martial proceedings were not directly reviewable in civil courts. They could only be attacked collaterally by petitions for habeas corpus, In re Yamashita, 327 U.S. 1, 66 S.Ct. 340, 90 L.Ed. 499 (1946), Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953), and in suits for back pay, Brown v. United States, 206 U.S. 240, 243, 27 S.Ct. 620, 51 L.Ed. 1046 (1907), Swaim v. United States, 165 U.S. 553, 17 S.Ct. 448, 41 L.Ed. 823 (1897), Hooper v. United States, 326 F.2d 982 (Ct. of Cl. 1964), Begalke v. United States, 286 F.2d 606 (Ct. of Cl. 1960), Krivoski v. United States, 136 Ct.Cl 451, 145 F.Supp. 239 (1956) cert. den. 352 U.S. 954, 77 S.Ct. 326, 1 L.Ed.2d 243 (1956), Shapiro v. United States, 107 Ct.Cl. 650, 69 F.Supp. 205 (1947). Neither course, the plaintiff has followed and, certainly, habeas corpus is no longer available to him.

It is first urged that the defendant was deprived of his rights under the Sixth Amendment to the United States Constitution, when upon his arrest he was not immediately given the services of counsel, particular]y, before being questioned by the police. There is no legal or constitutional requirement that a defendant or one suspected of the commission of a crime be afforded counsel immediately upon his arrest, before or while he is being questioned by the police: Commonwealth v. Agoston, 364 Pa. 464, 72 A.2d 575 (1950); Commonwealth v. Graham, 408 Pa. 155, 182 A.2d 727 (1962); Commonwealth v. Senk, 412 Pa. 184, 194 A.2d 221 (1963); Commonwealth ex rel. Maisenhelder v. Rundle, 414 Pa. 11, 198 A.2d 565 (1964); Begalke v. United States, 286 F.2d 606 (1960); Cicenia v. LaGay, 357 U.S. 504, 78 S.Ct. 1297 (1958); Crooker v. California, 357 U.S. 433, 78 S.Ct. 1287 (1958). The cases of Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55 (1932); Hamilton v. Alabama, 368 U.S. 52, 82 S. Ct. 157 (1961); and White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050 (1963), cited in support of appellant's argument in this respect, are inapposite and do not apply.

* * *" Armed Forces Act, 10 U.S.C. § 807 (a), 809 (d); Myers v. United States, 415 F.2d 318 (10th Cir 1969); United States v. Barber, 300 F. Supp. 771 (D Del 1969); Sablowski v. United States, 403 F.2d 347 (10th Cir 1968); Begalke v. United States, 286 F.2d 606 (Ct Cl), cert denied 364 U.S. 865, 81 S Ct 108, 5 L Ed 2d 87, 151 Ct Cl 707 (1960). In Myers v. United States, supra, the court said: