Patterson v. Stancliff

• Decision Date: 13 August 1971
• Docket Number: Civ. A. No. 6285.
• Citation: 330 F. Supp. 110
• Parties: Daniel Cleveland PATTERSON v. Ronald L. STANCLIFF, Cpt., United States Army Reserve, et al.
• Court: U.S. District Court — District of Vermont

330 F. Supp. 110

Daniel Cleveland PATTERSON v. Ronald L. STANCLIFF, Cpt., United States Army Reserve, et al.

Civ. A. No. 6285.

United States District Court, D. Vermont.

August 13, 1971.

John A. Burgess, Montpelier, Vt., for petitioner.

Norman Cohen, Asst. U. S. Atty., Rutland, Vt., and Lea B. Pendleton, Office of the Staff Judge Advocate, Fort Devens, Mass., for defendants.

OPINION AND ORDER

LEDDY, Chief Judge.

Petitioner, Daniel Cleveland Patterson, applied for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, seeking discharge from the United States Army Reserve. A resident of Stowe, Vermont, petitioner is an enlisted member of the United States Army Reserve and is attached to the 344th Transportation Battalion (Truck), located at Montpelier in the State and District of Vermont.

At the request of his Commanding Officer, Captain Ronald L. Stancliff, petitioner was examined on March 8, 1971, by the Chief Psychiatrist of the Community Mental Health Center at Fort Devens, Massachusetts. This psychiatrist concluded from his examination and from consideration of a report from petitioner's psychiatrist, dated December 13, 1970, that:

Diagnosis is that of a character disorder. As such, he does meet retention standards of Ch. 3, Sect XV, AR 40-501. If his performance in the US Army Reserve constitutes more of a liability than an asset to his unit, discharge UP AR 135-178 would be appropriate.

On March 20, 1971, Captain Stancliff, having received this psychiatric report, wrote the Commanding General of the First United States Army recommending discharge for "unsuitability", because "petitioner's performance of duty since becoming assigned to this unit * * * has shown that he is more of a liability than an asset to this unit and to the Army Reserve". The letter from the Fort Devens psychiatrist, the report of petitioner's personal psychiatrist, and petitioner's personnel file were forwarded to First Army Headquarters along with this recommendation. On April 27, 1971, First Army Headquarters replied as follows: "Military 201 personnel File with SF 88 & 89 forwarded for maintenance by your Command. Reservist was found medically qualified by 1A Surgeon on 15 April 1971." The two psychiatric reports and a copy of a medical report¹ and medical history (SF 88 & 89) of an examination on October 13, 1968, were stamped "REVIEWED, Office of The Surgeon, 15 APR 1971, HQ First US Army". The medical report had also been stamped "HQ, FIRST US ARMY, OFFICE, SURGEON MEDICALLY DISQUALIFIED QUALIFIED FOR: * * * USAR RET * * * APR 15 1971".

Captain Stancliff interpreted the response of First Army Headquarters as a disapproval of his recommendation, an interpretation which the evidence shows to be most probably correct, and on April 30, 1971, ordered petitioner to attend all unit drills, advising him he had accumulated sufficient unauthorized absences so that if he failed to attend the two forthcoming drills he would be ordered to active duty for two years, less any time already served on active duty.

Petitioner filed an application for a writ of habeas corpus with this Court on May 14, 1971. On the same date a temporary restraining order was issued, unopposed by the respondents, restraining respondents from directing petitioner to attend drills or from treating failure to so attend as unexcused absences. Defendants filed a return to the writ on May 21, 1971, and moved to dismiss on the grounds of failure to state a claim upon which relief may be granted, F.R. C.P. 12(b)(6), and lack of subject matter jurisdiction, F.R.C.P. 12(b)(1). This Court denied the motion to dismiss on July 21, 1971. A hearing was held on that date at which both petitioner and respondent presented witnesses and documentary evidence. At the close thereof, respondents renewed their motion to dismiss.

Threshold questions are whether this Court has jurisdiction and whether petitioner has exhausted his administrative remedies. As for the former, the Second Circuit has made clear that an Army reservist seeking discharge is sufficiently "in custody", within the meaning of 28 U.S.C. § 2241(c)(1), for habeas corpus to lie. United States ex rel. Schonbrun v. Commanding Officer, 403, F.2d 371, 373 (2d Cir. 1968), cert. denied 394 U.S. 929, 89 S.Ct. 1195, 22 L.Ed.2d 460 (1969); Hammond v. Lenfest, 398 F.2d 705 (2d Cir. 1968); United States ex rel. Altieri v. Flint, 54 F.Supp. 889 (D.Conn.1943), aff'd on opinion below, 142 F.2d 62 (2d Cir. 1944).

Federal courts have jurisdiction to review actions of the armed services to determine whether they have followed their own regulations and acted within the scope of their legitimate authority or discretion. E. g., Nixon v. Secretary of Navy, 422 F.2d 934, 937 (2d Cir. 1970); Smith v. Resor, 406 F.2d 141, 145-147 (2d Cir. 1969); United States ex rel. Schonbrun, supra, 403 F.2d at 373; Hammond v. Lenfest, supra, 398 F.2d at 715-716. If petitioner had failed to prove that the Army acted outside its legitimate authority or discretion or contrary to its own regulations, dismissal on the merits rather than for want of subject matter jurisdiction would be appropriate. This was the disposition of United States ex rel. Altieri v. Flint, supra.

Respondents contend that petitioner has not exhausted his administrative remedies because he has not applied to the Army Board for Correction of Military Records, one of the military boards established pursuant to 10 U.S.C. § 1552. The Board, which consists of civilian officers or employees of the Department of the Army, has as its mandate the correction of "any military Army record" when it considers this "necessary to correct an error or remove an injustice." 10 U.S.C. § 1552(a). The Board was designed to free Congress from the burden of private bills authorizing or directing the correction of military records, such private bills now being prohibited. See 2 U.S.C. § 190g.

In the context of an in-service conscientious objector, the Fourth and Fifth Circuits have taken the position that application to the appropriate Board for Correction of Military Records is not an administrative remedy which must be exhausted before review may be had by way of habeas corpus. United States ex rel. Healy v. Beatty, 424 F.2d 299 (5th Cir. 1970); Pitcher v. Laird, 421 F.2d 1272 (5th Cir.), application for stay of deployment denied as moot, 399 U.S. 902, 90 S.Ct. 2190, 26 L.Ed.2d 557 (1970); United States ex rel. Tobias v. Laird, 413 F.2d 936 (4th Cir. 1969); United States ex rel. Brooks v. Clifford, 409 F. 2d 700, rehearing denied, 412 F.2d 1137 (4th Cir. 1969). In the context of a soldier contesting discharge or retirement, this position was adopted by the District of Columbia and the Third Circuits, except that these Circuits held that resort to the Board would be required in the discretion of the District Court, exercised so as to retain jurisdiction but defer decision unless the party invoking the court's jurisdiction could demonstrate "special circumstances". Nelson v. Miller, 373 F.2d 474 (3d Cir.), cert. denied, 387 U.S. 924, 87 S.Ct. 2042, 18 L.Ed.2d 980 (1967); Sohm v. Fowler, 124 U.S.App.D.C. 382, 365 F.2d 915 (1966); Ogden v. Zuckert, 111 U.S.App. D.C. 398, 298 F.2d 312 (1961).

The Second Circuit has not ruled directly on the issue. Because the exhaustion requirement is based on comity and is not a limitation on federal power, exhaustion is not jurisdictional. Hammond v. Lenfest, 398 F.2d 705, 713 n. 13 (2d Cir. 1968), in which the Government waived the exhaustion argument with which we are now presented,² is therefore not controlling. But see Pitcher v. Laird, supra, 421 F.2d at 1276, 1276-1277 n. 8.

The lone dissenting Circuit has been the Ninth.³ Craycroft v. Ferrall, 408 F.2d 57 (9th Cir. 1969). But Craycroft was vacated and remanded by the Supreme Court, which stated:

The Solicitor General concedes that the administrative remedies that the Court of Appeals held should first be exhausted by the petitioner, have either been exhausted or are nonexistent. The sole remaining question therefore seems to be whether petitioner's failure to seek relief in the Court of Military Appeals precludes consideration of petitioner's claims by the federal courts. While the Solicitor General concedes that resort to that judicial remedy does not preclude consideration of petitioner's claim by the federal courts, there is a conflict among the circuits. It is for consideration of that question, or alternatively the merits, that the case is remanded.

397 U.S. 335, 90 S.Ct. 1152, 25 L.Ed.2d 351 (1970) (emphasis added).

Whatever the precedent value of the Supreme Court's disposition of Craycroft,⁴ we agree with the view of the issue expressed in the denial of rehearing in United States ex rel. Brooks v. Clifford, supra, and in Nason v. Secretary of Army, 304 F.Supp. 422 (D.Mass. 1969). We therefore hold that resort to the Army Board for Correction of Military Records is not a prerequisite to review by this Court.

The merits of petitioner's claim involve two rather complex and confusing sets of Army regulations. Army Regulation No. 40-501 (hereinafter AR 40-501),⁵ chapter 3, Retention Medical Fitness Standards, "sets forth the various medical conditions and physical defects which normally render a member unfit for further military service." ¶ 3-1. Reserve members with conditions listed therein will normally be considered "unfit by reason of physical disability." ¶ 3-3. A member with such a disability may be eligible for disability benefits. The Fort Devens psychiatrist found that petitioner meets these retention standards, but that petitioner suffered from a "character disorder" within the meaning of AR 40-501 ¶ 3-31a, which states:

Character and behavior disorders. Character and behavior disorders are considered to render an individual administratively unfit rather than unfit because of physical disability. Interference with performance of effective duty will be dealt with through appropriate

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