499 F.2d 417 (5th Cir. 1974), 73-2499, Hodges v. Callaway

Docket Nº:73-2499.
Citation:499 F.2d 417
Party Name:Staff Sergeant Kenneth L. HODGES, Plaintiff-Appellant, v. Howard H. CALLAWAY, Secretary of the Army, U.S.A., and Major General Orwin Talbott, Commanding General, Fort Benning, Georgia, Defendants-Appellees.
Case Date:August 09, 1974
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 417

499 F.2d 417 (5th Cir. 1974)

Staff Sergeant Kenneth L. HODGES, Plaintiff-Appellant,


Howard H. CALLAWAY, Secretary of the Army, U.S.A., and Major General Orwin Talbott, Commanding General, Fort Benning, Georgia, Defendants-Appellees.

No. 73-2499.

United States Court of Appeals, Fifth Circuit.

Aug. 9, 1974

Page 418

Frank K. Martin, Columbus, Ga., for plaintiff-appellant.

William Schloth, U.S. Atty., Charles T. Erion, Asst. U.S. Atty., Captain Royce C. Lamberth, JAGC, U.S. Army, c/o U.S. Atty., Macon, Ga., for defendants-appellees.

Before WISDOM and GOLDBERG, Circuit Judges, and LYNNE, District Judge.

GOLDBERG, Circuit Judge:

On June 1, 1972, the Department of the Army directed the Commanding General of Fort Benning, Georgia to grant Staff Sergeant (E-6) Kenneth L. Hodges and honorable discharge as soon as possible 'for the convenience of the Government.' Then midway through his second six-year period of enlistment in the army, Sergeant Hodges was understandably unwilling to see his hopes for a military career so abruptly terminated, even for the price of an honorable discharge. Accordingly, on June 7, 1972, two days before the date set for his separation, Sergeant Hodges invoked the assistance of the United States District Court for the Middle District of Georgia.

As subsequent amendments to the pleadings made clear, the gravamen of Hodges' complaint was that though ostensibly ordered 'for the convenience of the Government,' the discharge was in fact designed as punishment for Hodges' participation in the tragic events at My Lai 4, Republic of South Vietnam, on March 16, 1968. 1 Recognizing

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that the Army's actions did comply with the procedures established in Army Regulation (AR) 635-200 for discretionary 'convenience discharges' and apparently conceding the constitutional validity of those procedures, Hodges insisted that in his case the Army should have followed the procedures outlined in AR 635-212 for discharges based on misconduct. 2 Alleging that the pretextual 'convenience' discharge contravened his right to due process of law, Hodges sought a temporary restraining order to halt his discharge pending a hearing on the merits of his claim and ultimately an injunction against his discharge pending compliance with the applicable regulations and 'minimum concepts of fairness.'

For over a year the district court stayed the Army's discharging hand in order to preserve the status quo pending disposition of the case on its merits. Following an evidentiary hearing in May 1973, however, the district court on June 20, 1973, granted a partial summary judgment for defendants-appellees and dismissed Hodges' complaint for failure to state a claim and for want of subject matter jurisdiction. 3 Now a civilian, 4 Hodges asks us to reverse the district court and order the Army to follow the procedures set forth in AR 635-212. Notwithstanding the importance of Hodges' challenge to the action taken below, our attention to the merits of appellant's position is deflected at the threshold by a jurisdictional problem not detected by either the parties or the district court. 5

Although federal courts are not totally barred from barracks rooms and billets, our access is restricted. Writing for this Court in Mindes v. Seaman, 5 Cir. 1971, 453 F.2d 197, 201, Judge Clark framed a general statement of our authority:

a court should not review internal military affairs in the absence of (a) an allegation of the deprivation of a constitutional

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right, or an allegation that the military has acted in violation of applicable statutes or its own regulations, and (B) exhaustion of available intraservice corrective measures.

The first portion of this formula may often be the more difficult to apply, for not all allegations technically within its perimeters are reviewable. Thus the trial court must 'examine the substance of (the) allegation in light of the policy reasons behind nonreview of military matters,' balancing, inter alia, the nature and strength of the challenge to the military determination, the potential injury to the plaintiff if review is refused, the type and degree of anticipated interference with the military function, and the extent to which the exercise of military expertise or discretion is involved. Id. At the same time, concentration on the balancing act required to measure the sufficiency of the allegations should not obscure the importance of the second portion of the Mindes formula-- the exhaustion requirement.

Beginning with McCurdy v. Zuckert, 5 Cir. 1966, 359 F.2d 491, cert. denied, 1966, 385 U.S. 903, 87 S.Ct. 212, 17 L.Ed.2d 133, this Court has firmly adhered to the rule that a plaintiff challenging an administrative military discharge will find the doors of the federal courthouse closed pending exhaustion of available administrative remedies. Accord, Davis v. Secretary of the Army, 5 Cir. 1971, 440 F.2d 817; Stanford v. United States, 5 Cir. 1969, 413 F.2d 1048; Tuggle v. Brown, 5 Cir., 362 F.2d 801, cert. denied, 1966, 385 U.S. 941, 87 S.Ct. 311, 17 L.Ed.2d 220. For purposes of this requirement, two types of administrative bodies provide review of discharge decisions. 6 The army Discharge Review Board (ADRB), established pursuant to 10 U.S.C. § 1553 (1974 Supp.) and 32 C.F.R. § 581.2 (1973), has authority to review the type of discharge given and to direct the Adjutant General to 'change, correct, or modify any discharge or dismissal, and to issue a new discharge . . ..' 32 C.F.R. § 581.2(a)(1) (1973). Established pursuant to 10 U.S.C. § 1552 (1970) and 32 C.F.R. § 581.3, the Army Board for Correction of Military Records (ABCMR) is to 'consider all applications properly before it for the purpose of determining the existence of an error or injustice,' 32 C.F.R. § 581 .3(b)(2) (1973), and may 'correct any military record . . . to correct an error or remove an injustice .' 10 U.S.C. § 1552(a). 7

As previous decisions of this Court should have made clear, our basic exhaustion principle has two important corollaries. First, as with exhaustion of administrative remedies in other contexts, the exhaustion doctrine in review of military discharge decisions is subject to limitations or exceptions. The most important of these is that only those remedies which provide a real opportunity for adequate relief need be exhausted. Stated somewhat differently, exhaustion is inapposite and unnecessary when resort to the administrative reviewing body would be futile. 8 For example, a plaintiff obviously need not appeal to

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the particular DRB or BCMR if the relief requested is not within the authority or power of those bodies to grant. 9

The second corollary to our basic exhaustion principle is that having once determined the applicability of the exhaustion doctrine, a district court generally may not further entertain a...

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