The opinion of the court was delivered by: GASCH
This matter was heard on cross motions for a summary judgment of plaintiff's complaint seeking reinstatement in the United States Air Force or declaration that his discharge was void, correction of his military records and $50,000 in damages. It appears that there are no issues of material fact in dispute and that on the undisputed facts in the record plaintiff is entitled to relief as a matter of law.
The Memorandum of the Examiner of the Air Force Correction Board states the following preliminary facts:
"As a Special Agent of the office of Special Investigations, he [plaintiff] was assigned to a responsible position in Counter-Intelligence Security at Itazuke Air Base, Japan, where because of his grade (Staff Sergeant) he frequented the NCO Club. The Club possessed several slot machines. Previously, applicant was unfamiliar with such devices, but he 'became fascinated by them and indulged himself as one of the heaviest, if not the heaviest, player in the organization.' Between January and September, 1959, he wrote approximately $10,000 in checks to the club; approximately $9,150 in checks were honored by his bank in the U.S., and the remainder were returned unpaid to the club by his bank. The proceeds from all checks written, those honored and those unhonored, were placed in slot machines or lost at other gambling devices located throughout the club." (At 12. See also Memorandum at 3.)
On March 16, 1960, plaintiff was convicted by a special court-martial of seven counts of larceny totaling $850.00. Evidence established that the subject matter of the larceny counts were seven checks drawn two weeks after plaintiff had sent the stop order to his bank. The checks were payable to the NCO Club and were given for slugs which were usable only in the Club. Plaintiff used them for gambling. Plaintiff was sentenced to be discharged with a bad conduct discharge to forfeit $70.00 per month for three months, to be confined at hard labor for three months and to be reduced to the rank of airman basic.
On June 27, 1960, the convening authority exercising general court-martial jurisdiction, acting pursuant to Article 64 UCMJ (10 U.S.C. § 864), reduced the forfeiture to $43.00 per month and otherwise affirmed the sentence. A Board of Review acting under Article 66, UCMJ (10 U.S.C. § 866), found that the evidence was sufficient in fact and in law only to support a lesser included offense of wrongful appropriation (Art. 121, UCMJ; 10 U.S.C. § 921) since plaintiff did not intend to keep the money permanently; but, approved the sentence as appropriate. The Judge Advocate General concurred in the decision of the Review Board.
On October 10, 1960, plaintiff signed a statement indicating he did not wish to appeal to the Court of Military Appeals. On October 28, 1960, plaintiff notified the Air Force and the Court of Military Appeals that he had changed his mind, that he wished to appeal, and that he wanted counsel to be appointed. On November 4, 1960, plaintiff withdrew this application. In 1965, apparently after noting certain news media reports and investigations of gambling and prostitution on military bases, plaintiff requested the Air Force to appoint him counsel to petition for a reopening and review of his case. On July 29, 1965, the petition for review was denied.
Plaintiff filed this action on November 3, 1965. The Court granted defendant's motion to dismiss on February 1, 1966. Plaintiff appealed. The Court of Appeals entered an order that plaintiff's petition:
"* * * is denied without prejudice to the filing by petitioner of a new application in the District Court predicated upon a showing that the remedies under 10 U.S.C. 1552 and 1553 have been sought and denied, if that be the fact. Without intimating any decision thereon, we believe that the possibility of jurisdiction under the principle of Ashe v. McNamara, 355 F.2d 277 (4th Cir. 1966) warrants consideration by the District Court."
Plaintiff applied to the Air Force Board for the Correction of Military Records arguing inter alia that his discharge was improper since there had been no finding of an intent legally sufficient to support the charges, and that under United States v. Wallace,
plaintiff was found guilty of acts not constituting a crime. The hearing was delayed seven months and at the time it was held plaintiff could not be present. No member of the Board and no member of its staff present at the hearing had had legal training. Without notice to the plaintiff, the Board submitted a transcript of the hearing to the Air Force Judge Advocate General whose subordinates prosecuted the case and who rendered an ex-parte opinion that plaintiff's counsel's argument "is erroneous in law and in fact;" that "many reviews both judicial and administrative, of his conviction and sentence have failed to ...