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WOOD v. SECRETARY OF DEFENSE

August 25, 1980

Perry S. WOOD et al., Plaintiffs,
v.
SECRETARY OF DEFENSE et al., Defendants



The opinion of the court was delivered by: PARKER

MEMORANDUM OPINION

This action challenges the authority of the military to issue less than fully honorable administrative discharges *fn1" to members of the inactive reserves because of civilian misconduct not found to have affected adversely the quality of their military service. The four plaintiffs were issued such discharges for civilian misconduct ranging from an alleged and unprosecuted sexual offense to a conviction for unarmed robbery. They argue that the Department of Defense (DOD) policy underlying their discharges exceeds the military's statutory and constitutional authority in that it does not require a connection between their civilian misconduct and their military service. The plaintiffs seek a declaratory judgment and an injunction requiring the DOD officials to review and upgrade their discharges unless the civilian misconduct relied upon is found to have affected their military service. They also seek certification of this suit as a class action on behalf of similarly situated former members of the inactive reserves. Named as defendants are the Secretary of Defense and the Secretaries of the three services the Navy, the Army, and the Air Force.

 Cross motions for summary judgment have been filed. In addition, the Army has moved to dismiss or for summary judgment on grounds that it no longer engages in the practice complained of. All of the defendants have raised a statute of limitations defense under 28 U.S.C. ยง 2401(a) seeking dismissal of the complaint.

 The Court rules for the plaintiffs and concludes that the DOD regulation and policy as applied, characterizing plaintiffs' discharges as less than honorable without any finding of adverse impact, exceeds the defendants' statutory authority. The Court also grants plaintiffs' motion for class certification. The Army's motion to dismiss is denied and the defendants' statute of limitations defense is rejected. The proceeding is remanded to the DOD in light of this opinion for appropriate action.

 I.

 The material facts are not in dispute. The four individual plaintiffs were all members of the inactive reserves. As such, they had no military obligations, not even to attend drills or training weekends. They were not required to perform any duties other than keeping the military informed of their current addresses.

 Plaintiff Wood, after nearly three years of active duty during which he received the Silver and Bronze Stars, was released to inactive duty with an honorable discharge. Several years later while a member of the volunteer reserve, he was placed on probation by a civilian court after pleading guilty to contributing to the delinquency of a minor, a misdemeanor. He was subsequently issued an undesirable discharge *fn2" for "misconduct." No finding was made that his activities affected the quality of his military service. After a period of successful probation, he was allowed to substitute a not guilty plea and the misdemeanor charge was dismissed.

 Plaintiff Akers was similarly released from active duty to the inactive reserves with an honorable discharge. Shortly thereafter, criminal sodomy charges were brought against him. They were later dropped. Nonetheless as a result of those charges and the circumstances, Akers was subsequently separated from the inactive reserves with an undesirable discharge for "unfitness." *fn3" His undesirable discharge was later upgraded to a general discharge by a Naval administrative review agency.

 Plaintiffs Kruger and Conomos, whose active duty service was characterized as general and honorable respectively, were released from the inactive reserves following civilian felony convictions. Kruger received an undesirable discharge following a grand larceny conviction. Conomos received a similar discharge for an unarmed robbery conviction. Each served a prison term.

 After discharge, each plaintiff was denied a full upgrade in discharge by one or more administrative review agencies of the military. At no time during any of the administrative review proceedings, in which the four plaintiffs challenged the characterization of their discharges, was a finding made that the civilian "misconduct" affected the quality of the individual plaintiff's military service or the service generally.

 II.

 The DOD Directive *fn4" in question and at issue here creates a presumption that a discharge for "misconduct" shall be "under other than honorable conditions," i. e., an undesirable. Specifically, the Directive provides that a servicemember's discharge for specified types of misconduct *fn5" rendering him unqualified for further military service shall be a

 
(separation) under other than honorable conditions, unless the particular circumstances in a given case warrant a general or an honorable discharge. . . .

 Only recently in Roelofs v. Secretary of the Air Force *fn6" our Court of Appeals upheld an Air Force regulation *fn7" nearly identical to the Directive challenged here as authority for the issuance of a general discharge to a servicemember convicted of a federal narcotics offense while on active duty. Roelofs was sentenced to 18 months imprisonment, followed by probation for 3 years. The execution of the sentence was stayed to enable Roelofs to complete his military service. Before he did so, the Air Force discharged him administratively, issuing an undesirable discharge because of his ...


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