Allgood v. Kenan

• Decision Date: 19 December 1972
• Docket Number: No. 24716.,24716.
• Parties: James ALLGOOD, Petitioner-Appellee, v. Major General Thomas A. KENAN, USA, etc., et al., Respondents-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

470 F.2d 1071 (1972)

James ALLGOOD, Petitioner-Appellee, v. Major General Thomas A. KENAN, USA, etc., et al., Respondents-Appellants.

No. 24716.

United States Court of Appeals, Ninth Circuit.

December 19, 1972.

Robert E. Kopp, Atty. (argued), Robert V. Zener, Atty., William D. Ruckelshaus, Asst. Atty. Gen., Washington, D.C., Cecil F. Poole, U.S. Atty., Sheldon Deutsch, Asst. U.S. Atty., San Francisco, Cal., for respondents-appellants.

Richard Silver (argued), Francis Heisler, of Heisler & Stewart, Carmel, Cal., for petitioner-appellee.

Before KOELSCH, BROWNING and HUFSTEDLER, Circuit Judges.

KOELSCH, Circuit Judge.

Appellee Allgood was inducted into the United States Army in February 1966, and was assigned to Fort Ord, California. After two weeks of recruit training, he absented himself without permission for some six weeks. Upon his return, while court-martial charges were pending, an Army psychiatrist, Doctor Jewett, examined Allgood and found him to have a "passive-dependent" personality disorder, and opined that Allgood was "basically unsuitable" for military service; he recommended that the Army consider discharging Allgood as unsuitable. AR 636-212. The Army, however, decided to retain Allgood, and conducted a special court-martial; that court sentenced him to three months hard labor without confinement.

Shortly after his court-martial, Allgood again went absent without leave, and remained at large for some two and one-half years, until he was apprehended by the F.B.I. A preliminary investigation was conducted pursuant to Article 32, Uniform Code of Military Justice, 10 U.S.C. § 832. The investigating officer concluded that a charge of desertion Art. 85, U.C.M.J., 10 U.S.C. § 885 could be made out, but he recommended that Allgood be "boarded from the Army without trial by courts-martial." A subsequent psychiatric examination was performed by a military psychiatrist, Doctor Elias. Doctor Elias confirmed the earlier diagnosis of Doctor Jewett, with respect to Allgood's personality disorder, and he concluded his report with the following statement: "Subject is psychiatrically cleared for any administrative and/or judicial action deemed appropriate by command." He added, however, that Allgood would "never be an asset to the military service and should be considered for separation under AR 635-212." The Staff Judge Advocate of Fort Ord reviewed these recommendations, but concluded that, "The psychiatric evidence does not present a legal defense to the desertion charge. In view of the serious nature of the offense, I would recommend trial by general court-martial." This latter recommendation was approved by the commanding general, Major General Kenan, appellant herein.

Allgood then submitted a request for discharge in lieu of court-martial, pursuant to AR 635-200, ch. 10, which provides, in part:

"An individual whose conduct has rendered him triable by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge may submit a request for discharge for the good of the service in lieu of trial. * * *"

He contended that his request should be granted in view of the psychiatric evaluations of Doctors Jewett and Elias and their opinions that Allgood should be discharged as unsuitable for military service. Those officers required by the regulation to evaluate Allgood's request all recommended against discharging him in lieu of court-martial. His immediate commander stated, "Since I would not recommend discharge for unsuitability UP AR 635-212, I do not recommend approval for what is essentially EM's application for such a discharge." That commander's superior also was of the opinion that Allgood should not be so discharged, and added that Allgood's psychiatric condition could be taken into account by the court-martial board in determining a sentence to be imposed. Major General Kenan then disapproved Allgood's request, and a general court-martial was scheduled.

Allgood thereupon filed a petition for a writ of habeas corpus in the District Court, alleging that the Army's refusal to discharge him was arbitrary, unreasonable, and without basis in fact. The District Court, relying upon the opinions of the two psychiatrists, as expressed in their evaluation reports, concluded, in effect, that Allgood was unsuitable for military service and that the Army should have discharged him. The court thereupon granted the writ, ordering Allgood released from Army custody. We reverse.

Judicial review of Army administrative determinations is quite limited. Courts will review military determinations by habeas corpus to insure that rights guaranteed by the constitution or by military regulations are protected. Where, for example, the military has prescribed a procedure for entertaining requests for release by reason of a soldier's conscientious objection, see, e. g., AR 635-20, habeas corpus will lie to review the military's disposition of such requests. Parisi v. Davidson, 405 U.S. 34, 92 S.Ct. 815, 31 L.Ed.2d 17 (1972); Glazier v....