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November 23, 1977

William Rodney MARTIN, Jr., Plaintiff,
SECRETARY OF the ARMY, Defendant

The opinion of the court was delivered by: GESELL


On January 17, 1972, plaintiff was prematurely discharged from the United States Army by reason of unsuitability and issued a general discharge certificate. His normal date of separation would have been April 8, 1973. Plaintiff's application for a recharacterization of his discharge to honorable was denied after a hearing by the Army Discharge Review Board (Review Board). When a similar application was declined review by the Army Board for the Correction of Military Records (ABCMR), plaintiff filed this lawsuit. He seeks not only recharacterization, but also back pay *fn1" with accompanying benefits and expunction of any reference in his records to his general discharge or his "unsuitability." The case was fully briefed and argued on cross-motions for summary judgment and is now ready for decision.


 A brief chronology of events leading up to plaintiff's discharge is necessary to frame the issues in the case. Plaintiff enlisted on April 9, 1970, completed basic training with "excellent" conduct and efficiency ratings, and reported to Fort Gordon, Georgia, in June of that year. While stationed at Fort Gordon, plaintiff received two nonjudicial punishments pursuant to Article 15 of the Uniform Code of Military Justice, 10 U.S.C. § 815 (1970): the first on December 8, 1970, for failure to report to duty; another on January 21, 1971, for failure to obey an order to get a haircut and for a uniform violation. Plaintiff's conduct rating for this time period was "unsatisfactory," and his efficiency rating was "excellent." In March 1971 plaintiff was transferred to Vietnam, where he remained until his discharge on January 17, 1972. His record during that period was not a happy one. He received two more nonjudicial punishments: one on June 28, 1971, for failure to report to duty and another on September 24, 1971, for a uniform violation and for use of provoking words. In addition, plaintiff was convicted by a summary court martial on September 1, 1971, for failure to report to duty and to obey an order to get a haircut.

 On October 4, 1971, plaintiff received notification that, pursuant to Army Reg. 635-212 (1966 & 1967 Amend.), discharge proceedings had been initiated against him for "unfitness." A hearing before an Administrative Discharge Board (Discharge Board) was held on December 20, at which plaintiff was represented by qualified counsel. The Discharge Board made three conclusory findings in support of plaintiff's separation for "unsuitability." *fn2" Although Army regulations permit an individual separated for unsuitability (or unfitness) to receive an honorable discharge, Id. P 4, the Discharge Board recommended, without stating its reasons, that plaintiff be given a general discharge certificate. The recommendation was approved by the military convening authority and affirmed without findings by the Review Board. The ABCMR declined review.

  On this appeal plaintiff presents two legal contentions. He claims, first, that his January 1971 discharge was improper because his discharge hearing was fatally infected with prejudicial error. Alternatively, even if the discharge was proper, he claims entitlement to an honorable rather than a general discharge. Both of these contentions were denied below. *fn3" Because of the failure of the Review Board to accompany its affirmance with findings of fact, the Court can neither accept nor reject plaintiff's claims. The case must therefore be remanded with instructions, as the following discussion demonstrates.


 The record of plaintiff's discharge proceeding is one permeated with procedural error. First, in violation of Army Reg. 27-10 P 3-15(1968)(d) , a record of plaintiff's first nonjudicial punishment was introduced at the hearing. Both United States v. Cohan, 20 U.S.C.M.A. 469, 43 C.M.R. 309 (1970) and United States v. Turner, 21 U.S.C.M.A. 356, 45 C.M.R. 130 (1972), have interpreted Regulation 27-10 as forbidding mention of an individual's nonjudicial punishment in a proceeding against him whenever he has been subsequently transferred and (a) one year has elapsed, (b) punishment has been executed, and (c) any appeal of the punishment has been fully resolved. The Army, of course, is bound by this interpretation. Owings v. Secretary of United States Air Force, 298 F. Supp. 849, 855 (D.D.C.1969), Rev'd on other grounds, 145 U.S.App.D.C. 76, 447 F.2d 1245 (1971).

 The second error, recognized after the hearing by the Discharge Board itself, was the admission of the live testimony of adverse witnesses after plaintiff had been formally advised that no such witnesses would be called. Paragraph 17(c) of Army Reg. 635-212 (1966) requires that an individual subject to discharge proceedings "be notified of the names and addresses of witnesses expected to be called at the board hearing." About two weeks prior to the hearing plaintiff was notified in writing by the recorder of the Discharge Board that "no witnesses are expected to be called." Yet with no intervening warning, both plaintiff's present and former commanding officers testified against him at the hearing. There were no other live adverse witnesses.

 Another error concerned the admission into evidence of unsworn written statements of three adverse absent witnesses. Army Regulation 15-6, 32 C.F.R. §§ 519.2(e)(2) (1976), mandates that the "personal appearance of a witness should always be obtained whenever possible in preference to use of his deposition, affidavit, or written statements" and that "if evidence is secured by affidavits or written statements . . . the individual concerned should be given reasonable notice thereof and afforded an opportunity to meet adverse allegations." Of similar effect is Id. § 519.2(a)(1). Plaintiff was given no notice that the three statements would be used. In addition, no showing of unavailability was made at the time the statements were introduced. *fn4"

  It is established beyond peradventure that the military, like any other agency, is bound by its own regulations. See, e.g., VanderMolen v. Stetson, 571 F.2d 617, 624 (D.C. Cir. 1977); Bray v. United States, 515 F.2d 1383, 1395, 207 Ct.Cl. 60 (1975); Cf. Vitarelli v. Seaton, 359 U.S. 535, 79 S. Ct. 968, 3 L. Ed. 2d 1012 (1959); Service v. Dulles, 354 U.S. 363, 77 S. Ct. 1152, 1 L. Ed. 2d 1403 (1957). In the ordinary course of review, however, a reviewing court should not concern itself Directly with the errors of the Discharge Board, but rather through the eyes that is, the findings and decisions of the Army appellate tribunals. See Van Bourg v. Nitze, 128 U.S.App.D.C. 301, 307, 310, 388 F.2d 557, 563, 566 (1967); Amato v. Chafee, 337 F. Supp. 1214, 1216-17 (D.D.C.1972). In the present case, however, neither the Review Board nor the ABCMR entered any findings. This omission is permitted the ABCMR when, as here, it simply declines review. 32 C.F.R. § 581.3(c)(5)(iii) (1976). But findings are expressly required of the Review Board, Id. § 581.2(g)(1), and with good reason. As the United States Court of Appeals for the District of Columbia Circuit explained in a closely analogous case, "the failure of the Review Board to make findings, as required by regulation, leaves us in the dark as to the basis for its conclusion." Van Bourg v. Nitze, 128 U.S.App.D.C. 301, 309, 388 F.2d 557, 565 (1967).

 The Review Board in this case might have affirmed the grant of a premature and general discharge for any of a number of distinct reasons. For example, it may have misperceived the facts and/or the governing law. It may have determined that no errors were committed below and that the record adequately justified the outcome. Or it might have recognized procedural errors, but determined that plaintiff had waived his rights by failure to object during the hearing. Alternatively, the Review Board may have acknowledged the errors, but held them to have been harmless because sufficient untainted evidence existed to warrant affirmance. Each of these possible reasons for affirmance would require a different analysis, and perhaps conclusion, upon review. Yet the Court is not free to choose among them as to the real basis of the Review Board's affirmance. NLRB v. Metropolitan Life Ins. Co., 380 U.S. 438, 444, 85 S. Ct. 1061, 13 L. Ed. 2d 951 (1965). Without explication, review for arbitrariness and capriciousness or substantial evidence is meaningless. *fn5"

 The Review Board's failure to make findings is particularly egregious with respect to plaintiff's receipt of a general rather than an honorable discharge certificate. Defense Department regulations permit an individual separated by reason of unsuitability to receive either. 32 C.F.R. § 41.7(g) (1976). The difference between the two is of substantial consequence, for although Army regulations characterize a general discharge as a separation "under honorable conditions," Army Reg. 635-200 P 1-9(1967)(d)(1) , it has long been recognized, and the allegations of the complaint confirm, that anything less than an honorable discharge stigmatizes the recipient and is thus punitive in nature. Bland v. Connally, 110 U.S.App.D.C. 375, 376 n. 1, 293 F.2d 852, 853 n. 1 (1961).

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