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January 24, 1956

John Henry HARMON, III, Plaintiff,
Wilber M. BRUCKER, Secretary of the Army, Defendant

The opinion of the court was delivered by: YOUNGDAHL

This cause came on to be heard on cross-motions for summary judgment.

Plaintiff was inducted into the Army on October 31, 1952, under the Universal Military Training Law of 1948, 50 U.S.C.A.Appendix, § 451 et seq. On February 9, 1954, he was ordered to reply to certain derogatory information which the Army had received about him. On March 11, 1954, plaintiff replied to questions concerning allegedly subversive activities in which he was involved in 1949, 1951, and 1952, such as employment at Camp Lakeland, with the Detroit Urban League, registering to vote with the American Labor Party in New Yrok and soliciting funds for defense of persons indicted under the Smith Act, 18 U.S.C.A. § 2385. Plaintiff's father and stepmother were alleged to be subversive.

 Save for plaintiff's continuing association with his parents and for writing one letter requesting contribution for the legal defense of two persons indicted under the Smith Act, all charges against plaintiff were based on conduct antedating his induction into the Army.

 On the basis of these facts the Army informed plaintiff, on April 2, 1954, that although he would be retained in the Army, he would not be promoted; that he would not be discharged as disloyal or subversive, but he would be assigned to non-sensitive duties; and that upon completion of his term of service, he would be given a discharge relative to the type of service rendered as of the date he became eligible for separation.

 On April 7, 1954, the Secretary of Defense issued a Department of Defense Directive, number 5210.9, which modified existing regulations of the Armed Services so as to make the civilian security program for government employees apply to the military. Cases previously cleared were ordered reviewed and on May 26, 1954, the Adjutant General informed plaintiff's Commanding Officer that he would be discharged with an Undesirable Discharge under the provisions of Army Regulation No. 615-370, although the discharge now appears to have been made under 5210.9, i.e., that retention of plaintiff was inconsistent with the interests of national security. On June 2, 1954, plaintiff was discharged from the Army.

 Plaintiff then applied unsuccessfully to the Army Discharge Review Board and the Army Board for the Correction of Military Records to have the character of his discharge changed from Undesirable on the ground that his services both as to character and efficiency had been rated as excellent throughout his entire army life. After plaintiff requested the Secretary of the Army to award him an honorable discharge his case was reopened by the Army Board for Correction of Military Records but relief was denied.

 The Government concedes that during the entire period of plaintiff's military service he received an excellent rating both as to character and efficiency.

 The authority to prescribe conditions under which a soldier shall be discharged from service has been vested by the Congress in the Secretary of the Army. 10 U.S.C.A. § 652a. Since the statute does not specify the categories of discharges to be issued, the Secretary has authorized a series of Army Regulations establishing five categories and describing the circumstances under which they shall be given. An Undesirable Discharge is issued to persons separated by administrative action from the Army because they are found to threaten the Army's discipline, or morale, or function as a national defense arm. Plaintiff was issued such a discharge as a security risk.

 Understandably the establishment of standards and the administration of these standards have been considered as peculiarly military. It must be so for the military does constitute a specialized community, of necessity governed by a discipline uniquely adapted to its own needs. Respecting this the courts have been scrupulously careful not to interfere with, or intervene in, authorized and legitimate army matters. The statute authorizing military determination of discharge certificate has been construed to restrict judicial review. *fn1" Chief Judge Edgerton noted in Gentila v. Pace, 1951, 90 U.S.App.D.C. 75, 77, 193 F.2d 924, 927:

 'We think Congress intended that the Board's full and 'final' review should not be subjected to a further review, or series of reviews, in the courts. We may suppose that Congress considered the heavy burden that would be imposed upon courts if they were required to review the findings upon which Army discharges are based. * * * At the very least, we think the statute intends that merely erroneous findings of fact by the Discharge Review Board shall not be revised by a court.'

 Although it may be true that the immediate case presents questions of law, it likewise involves a review of the findings upon which the separation was based, for while the vast majority of facts upon which the government relies occurred prior to induction, at least one such fact occurred during the term of military service. We feel constrained to hold, therefore, that under the present state of the law we lack requisite authority to review, control or compel the granting of particular types of discharge certificates.

 We would, nevertheless, be remiss if we failed to point out the inequities which may result, as in this case, from the lack of adequate Congressional circumscription of military action regarding discharges -- action which is isolated from judicial review.

 The established policy of the military has been that the character of a discharge certificate is rooted in, and fashioned from, the conduct of a man during his term of service. In ...

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