that "many reviews both judicial and administrative, of his conviction and sentence have failed to uncover any indication of error or injustice;" and that "plaintiff has not submitted any new evidence in the hearing." The opinion was adopted by the Board. Plaintiff has returned to this Court to seek a review of the Board's decision.
Plaintiff has exhausted his administrative remedies by obtaining a review of his discharge before the Air Force Board for the Correction of Military Records. (Hereinafter "the Board").
This Court's jurisdiction is predicated in part on the enabling legislation of that Board.
Because Congress wished to invest the Board with broad authority, however, the statute is vague.
It requires the Secretary of Defense acting through a civilian Board to "correct any military record of that department when he considers it necessary to correct an error or remove an injustice."
It is beyond question that this Court has jurisdiction to review the actions of that Board.
The scope of review permitted by this jurisdiction, however, is uncertain.
In Van Bourg v. Nitze, our Court of Appeals examined "the statutes and regulations governing the administrative proceedings we are called upon to review to determine if the Navy departed from the prescribed manner in which a review of the nature of a discharge could be had."
A somewhat similar approach was taken in the more recent case of Kennedy v. Secretary of the Navy.
There the Court of Appeals found a discharge invalid because it was based on matters not in the armed forces service record and consequently violated the statutory standards governing discharge.
Ashe v. McNamara, specifically noted by the Court of Appeals in its earlier order in this case as a possible jurisdictional base, approached the scope of jurisdiction in terms of the statute.
It held that the District Court could review the Board and could under 28 U.S.C. § 1361 compel it to correct an injustice where a discharge which the Department refused to change was itself illegal because defendants with fundamentally inconsistent defenses were forced to be represented by the same counsel.
It was illegal because it was an unconstitutional denial of the right to counsel. Similarly, our Court of Appeals noted in Van Bourg v. Nitze that "it is the duty of the judiciary to inquire into an allegedly wrongful and detrimental refusal to grant deserved relief."
Citing Prince v. United States,
the First Circuit in Ashe pointed out that the Court of Claims in a different context "has even substituted its judgment as to the requirement of 'justice' in all of the circumstances for the contrary view of the Secretary of the Army in his authoritative disposition of a disputed matter."
Subsequently, however, the Supreme Court has held that the jurisdiction of the Court of Claims in collateral attacks on courts-martial is limited to the correction of errors of constitutional proportions.
It would appear from these authorities that the scope of review by this Court is limited to: (1) the procedural history of the case including a determination of whether the service followed the statutes and regulations by which it is bound; and (2) the record in the case including its merits to the extent a decision might have been without basis in fact or to the extent an issue of constitutional proportions may be raised. It would be inconsistent both with the principles which invest this Court with jurisdiction and with the development of the Uniform Code of Military Justice and the Court of Military Appeals for a District Court to undertake what might become in effect a trial de novo.
Plaintiff urges three grounds to support his motion for summary judgment. First, he argues that the proceedings before the Board were procedurally improper. His petition to that Board rested on two "technical" legal points which independently he again asserts here as second and third grounds for his summary judgment. He argued there, and here, that plaintiff was charged with the crime of larceny, which requires proof of specific intent, and that when the reviewing panel found that plaintiff had no intent to appropriate the funds permanently, they necessarily excluded the possibility that he be found guilty of another crime, with which he was not charged, but which also required an intent.
Moreover, he argued, under the decision of the Court of Military Appeals in United States v. Wallace, the acts which he committed could not under military law be a crime.
Despite the fact that the Board was aware in advance that these legal arguments were the foundations of his petition, no member of the Board hearing the case had legal training and the record discloses confusion over the legal theory upon which the petition was based. Perhaps due to this confusion, and without notice to plaintiff's counsel, the Board referred the matter to the Air Force Judge Advocate General for an opinion and then adopted his conclusions as theirs. The Court does not understand that plaintiff is here urging that the seeking of advice from the Judge Advocate General is under all circumstances an impermissible procedure for the Board. The statute and regulations do not appear to foreclose such a procedure altogether. Rather, in these circumstances plaintiff argues, the reference to the Judge Advocate General constituted an unlawful delegation of the decision making authority of the Board. In future cases, this issue may be avoided by requesting legal opinions from opposing counsel. Alternatively, he argues that the decision was necessarily arbitrary and capricious. Although there appears to be merit in plaintiff's position on this point,
the Court need not reach it for more fundamentally it appears that the Board failed to recognize the effect of the Wallace decision and the resulting fact that plaintiff was found guilty of an offense which under military law is not a crime.
In United States v. Wallace, the Court of Military Appeals held that "this court on the basis of public policy, consistently refused to sustain criminal proceedings based upon the issuance of worthless or subsequently dishonored checks in connection with gambling games."
The court went on to cite from its opinion in United States v. Walter:
"It is clear from what we have said above that gambling is against public policy and that the subjects of the alleged larceny were engaging in this illegal activity with the accused * * * We will not act as the 'strong arm' of a collection scheme for gamblers within the service in order to intimidate payment by 'debtors' of void gambling debts. The fact that one 'welshes' on his gambling debts and becomes known as a 'welsher' is not a crime."