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TURNER v. CALLAWAY

February 22, 1974

Joseph J. TURNER, Plaintiff,
v.
Howard H. CALLAWAY, Secretary of the Army, Defendant


Corcoran, District Judge.


The opinion of the court was delivered by: CORCORAN

I. BACKGROUND

 Plaintiff, a Roman Catholic priest, is a Captain in the United States Army Chaplain Corps. In 1971, while serving a tour of duty in Viet Nam, he observed what he believed to be maltreatment of enlisted men by his commanding officer, Major Kenneth R. Andexler. Plaintiff reported the alleged maltreatment to the Office of the Inspector General.

 Upon his return to the United States, plaintiff learned that Major Andexler had given him a negative Officer Efficiency Report which plaintiff asserts was rendered in retaliation for his complaint to the Inspector General. Plaintiff appealed to Major Andexler. Receiving no satisfaction, he then addressed a complaint for redress of grievances pursuant to 10 U.S.C. § 938, Article 138, U.C.M.J., to the officer exercising general court-martial jurisdiction over the person of Major Andexler. Plaintiff's complaint was rejected at this level because it did "not lie within the scope of Article 138, U.C.M.J." That decision was reviewed and approved by the Office of the Judge Advocate General of the Army which approved the finding that plaintiff had not been wronged within the meaning of Article 138 as alleged in the complaint and that no substantive evidence could be found to support plaintiff's contentions.

 Plaintiff then filed this action against the Secretary of the Army alleging that his Article 138 complaint was improperly rejected, and that he was denied due process of law in connection with the processing of that complaint. He seeks broad declaratory and injunctive relief regarding the implementation and application by the Army of Article 138, U.C.M.J.

 Plaintiff has moved for summary judgment. The Secretary of the Army has moved to dismiss or in the alternative to remand for administrative proceedings before the Army Board for Correction of Military Records.

 II. PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

 More importantly in his Memorandum in Opposition to Defendant's Motion, plaintiff characterizes his claim at page 1, in this language:

 
The gravamen of Father Turner's Article 138 complaint was that his former commanding officer, Major Andexler, was not fit to command troops in combat, and had committed gross improprieties which resulted in severe psychiatric consequences to his subordinates, and in unlawful retaliation against plaintiff for pursuing the matter through the Inspector General system.

 At page 3 he asserts:

 
As defendant concedes, plaintiff has attempted to exhaust both the Inspector General system, and the Article 138 remedy, with respect to his belief that Major Andexler was unfit to command troops. With respect to both of those remedies, plaintiff has not been given so much as an explanation of the factual findings or other considerations upon which he was denied relief.

 And again at page 4, he refers to "grave injustices to himself and to his pastoral charges."

 It seems clear that plaintiff is not entitled to institute an Article 138 complaint for purposes of challenging Major Andexler's fitness to command troops or asserting "wrongs" suffered by individuals other than himself. Article, 138 U.C.M.J., 10 U.S.C. § 938 provides relief only for a "member of the armed forces who believes himself wronged by his commanding officer . . . ." (Emphasis added.) The Army regulations promulgated pursuant to Article 138 define "wrong" as a "discretionary action by a commander, . . . which a member of his command believes was unauthorized, unfair, or discriminatory, and which resulted in a detriment to the member capable of redress in command channels . . . ." (Emphasis added.) AR 27-14, para. 2(b) (April 1, 1972). Moreover, the regulations presume administrative regularity and place the burden of persuasion on the complainant ...


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