to determine whether discharge for medical disability was required (in lieu of separation for substandard performance)." Def. Statement of Material Facts at para. 8. At minimum it can be said that plaintiff has raised a question as to defendants' compliance with the letter of para. 5-29.
At the same time, however, the Court has some doubt as to whether para. 5-29 is the exclusive source of a commanding officer's authority to order psychological evaluation of a subordinate. Neither party has addressed any regulation governing the process leading to administrative separation of an officer. The distinction between separation based on "medical disability" and "substandard performance," and the procedures involved, was at issue nearly three years ago in the preliminary relief aspect of this case, and would seem to remain relevant today. Army Regulation 600-35 §§ 4-6, 4-7 provides that a commanding officer may refer a subordinate for medical evaluation when there is question as to the subordinate's "physical ability to perform the duties of his office, grade, rank, or rating." "Character and behavior disorders . . . render an individual administratively unfit rather than unfit because of physical disability [and] will be dealt with through appropriate administrative channels." Id. at 40-501 P 3-31. Neither the parties nor the Board considered the interplay, if any, between the administrative separation regulations and para. 5-29; it is plausible, for example, that disposition through "administrative channels" contemplates further psychological evaluation and treatment outside of or consistent with para. 5-29. In any event, the Court believes initial Board review of all possibly pertinent regulations is appropriate. Similarly, as in Baxter v. Claytor, supra, the Board should consider plaintiff's constitutional challenge should it remain satisfied that the hospitalizations did not violate any regulations. The Court is aware that the Board frequently relies upon advisory opinions when technical matters are at issue; perhaps the Board should solicit advice from the Judge Advocate General on the due process claims advanced by plaintiff.
Plaintiff filed this case in 1981, and with this memorandum, the record continues to grow. A remand, of course, only postpones final resolution; nonetheless, the Court believes remand is appropriate. Whether the setting be a Feres-type case, a Mindes-type case, or review of a Correction Board, courts have stressed the undesirability of judicial intrusion into military personnel decisions, and judicial inquiry into the "peculiar and special relationship of the soldier to his superiors," United States v. Brown, supra, 348 U.S. at 112. The Court is hesitant to act without further explication by the Board of a narrow aspect of that relationship, i.e., under what circumstances and for what reasons a commander may direct a subordinate to undergo medical evaluation. Moreover, the Court believes it appropriate to further solicit the "views [of] the military authorities," Wallace v. Chappell, supra, 661 F.2d at 734, before considering plaintiff's request that the Court extend constitutionally-based procedural requirements into that relationship.
Accordingly, defendants' motion to dismiss, or, in the alternative, for summary judgment, is granted in part and denied in part. The case is remanded to the Army Board for Correction of Military Records for further proceedings consistent with this opinion.
An appropriate order follows.
Upon consideration of defendants' motion to dismiss, or in the alternative, for summary judgment, plaintiff's opposition, oral argument of counsel, and the entire record, it is by the Court this 29th day of May, 1984
ORDERED that defendants' motion to dismiss, or in the alternative, for summary judgment is granted with respect to all of plaintiff's claims for monetary relief, and denied with respect to plaintiff's claims for declaratory and injunctive relief. It is further
ORDERED that the case is remanded to the Army Board for Correction of Military Records for further proceedings consistent with the memorandum opinion accompanying this order.