Arnheiter v. Ignatius

• Decision Date: 22 October 1968
• Docket Number: No. 48414.,48414.
• Citation: 292 F. Supp. 911
• Parties: Marcus A. ARNHEITER, Plaintiff, v. Paul R. IGNATIUS et al., Defendants.
• Court: U.S. District Court — Northern District of California

292 F. Supp. 911

Marcus A. ARNHEITER, Plaintiff, v. Paul R. IGNATIUS et al., Defendants.

No. 48414.

United States District Court N. D. California.

October 22, 1968.

Marvin E. Lewis and Steven A. Sindell of Lewis, Rouda & Winchell, San Francisco, Cal., for plaintiff.

Cecil F. Poole, U. S. Atty. and Jerry K. Cimmet, Asst. U. S. Atty., San Francisco, Cal., for defendant Ignatius.

MEMORANDUM OF DECISION

SWEIGERT, District Judge.

This action is brought by Marcus A. Arnheiter, Lieutenant Commander, United States Navy, against the Secretary of the Navy for a Declaratory Judgment and for Relief in the Nature of Mandamus.

The case is now before the court on defendant's motion to dismiss the action for lack of jurisdiction over either the person or the subject matter and for failure of the complaint to state a claim upon which relief can be granted or, in the alternative, for a judgment in favor of defendant on the ground that there is no genuine issue as to any material fact and that defendant is entitled to judgment as a matter of law.

The record consists of the complaint and certain additional matter presented by the parties. Presented by the defendant and moving party are affidavits of Rear Admiral Donald C. Irvine and Vice Admiral Benedict J. Semmes and defendant's Exhibits C through F containing extensive documentary matter. Presented by the plaintiff are affidavits of plaintiff Arnheiter with attached plaintiff's Exhibits A through I, also containing extensive documentary matter.

The basic facts shown by the record are as follows:

On December 22, 1965, Lieutenant Commander Arnheiter was assigned to the command of the U.S.S. Vance, a Destroyer Escort under assignment for duty in the Vietnam war theatre as part of a Cruiser-Destroyer Task Group under the immediate command of Rear Admiral Donald C. Irvine. This Task Group was in turn a subordinate command under Vice Admiral Baumberger, Commander, Cruiser-Destroyer Forces, Pacific Fleet, which in turn was a subordinate command under Admiral Roy Johnson, Commander in Chief, Pacific Fleet.

Between mid-March and March 29, 1966, Commander D. E. Milligan, Commander, Escort Squadron Seven, received messages from commanders of other squadrons concerning irregular practices aboard the Vance and also concerning certain improper operations of the Vance that interfered with other ships; also a call from a Chaplain, Lieutenant Dando, concerning his observations, made aboard the Vance, of irregular practices and low morale; also a confirmatory report from a member of Milligan's own staff. After counseling with some of his fellow officers, Commander Milligan reported his information to Admiral Irvine. (Letter of Commander Milligan, July 15, 1966, part of Def.'s Ex. E).

On March 29, 1966, Rear Admiral Donald C. Irvine, as Commander of the Cruiser-Destroyer Task Group, upon receipt of this information, leading him to believe that Arnheiter should be relieved of his command "because of irregular practices in which he had engaged and irregular policies which he had established" and acting under the provisions of Article C-7801(4) (d) 2, Bureau of Naval Personnel Manual and after conferring with Rear Admiral T. S. King (who was about to relieve Irvine) sent a naval message to Vice Admiral Benedict J. Semmes, Chief of Naval Personnel, requesting that Arnheiter be relieved of his command of the Vance so that these matters might be investigated, indicating that speed was mandatory due to impending extended redeployment of the Vance on combat operations. (Affidavit of Admiral Irvine).

On March 30, 1966 Vice Admiral Semmes, upon receipt of this request and after telephonic concurrence in the request from Vice Admiral Baumberger, Commander, Cruiser-Destroyer Forces, U. S. Pacific Fleet, issued Naval Personnel Order 174035 directing that Arnheiter be detached as commanding officer of the Vance and that he report aboard U.S.D. Dixie for temporary duty and further assignment by Chief of Naval Personnel. (Affidavit of Admiral Semmes).

On March 31, 1966, Commander D. E. Milligan, acting under this order, boarded the Vance, relieved Arnheiter of the command and made a preliminary investigation of the circumstances leading up to the detachment, obtaining approximately 35 statements from officers and crewmen of the Vance which, according to Milligan, corroborated information already received by him from others. (Milligan's letter of 7/15/66, part of Def's Ex. E).

Thereupon, Rear Admiral T. S. King, who had just replaced Rear Admiral Irvine as Commander of the Task Group, acting under Naval Regulations, 32 CFR 719.254, et seq, and Article C-7801(4) of the Naval Personnel Manual, appointed Captain Ward A. Witter to conduct an "informal one-officer investigation" (provided for by Navy Regulations 32 CFR 719.611) of the circumstances leading to the removal of Arnheiter.

On April 2, 1966, Captain Witter conferred with Arnheiter concerning his rights and advised him to obtain counsel. Arnheiter obtained assignment from the Base Legal Office of Lieutenant McGovern as his counsel. On April 5th Witter reviewed with Arnheiter and his counsel the statements obtained by Milligan, the preliminary investigating officer, copies of which had been given by Witter to Arnheiter on the previous day. With Arnheiter and his counsel present, Witter then conducted hearings on April 6, 7, 8, 9, 11, 12 and 13, taking testimony under oath from 20 witnesses, receiving a sworn statement from Arnheiter and receiving other sworn statements of witnesses and other documents. (Witter Report, Pltf.'s Ex. I).

Under date of April 27, 1966, Witter prepared and forwarded to Rear-Admiral King, who had convened the investigation, a 13 page report of the investigation (Pltf's Ex. I) containing a detailed description of the proceedings and his findings of fact as required by Navy Regulations, 32 CFR 719.613.

Without attempting to detail Witter's 40 separate findings, they involve in substance and effect improper handling of ship's supplies and funds (e. g., 3, 4, 8, 10, 11, 14, 16, 26, 31, 35, 37); questionable policies and poor judgment in matters affecting officer and crew morale (e. g., 3, 6, 25, 27, 29); careless or unnecessarily hazardous operations (e. g., 1, 9, 15, 17, 21, 22, 23, 24, 28, 32, 33, 34, 36, 39, 40); improper operations reports (e. g., 12, 13).

The conclusions reached by Witter from these findings were to the general effect that Arnheiter was not the type to have command; that he lacked the ability to act without guidance and assistance of superiors; that, despite high goals and drive, he is a poor leader, unrealistic and insensitive to what is going on around him; that, although basically honest, he rationalizes distortion of facts to his own advantage; that, although attempting to run his ship in strict and pure chain of command with his officers, his obsession with this purpose affects his ability to make correct and balanced judgments; that most of his actions were relatively minor and in no case malicious; that removal from command would be adequately severe penalty for his performance and, if it stands, will be more than adequate punishment for his actual irregularities.

Witter thereupon recommended that Arnheiter's removal be sustained, that he be not assigned command in the future, either ashore or afloat, but that no disciplinary action be taken against him.

Under date of May 26, 1966, Rear Admiral King, acting on the Witter report, forwarded it to Vice Admiral Baumberger with his own report (Part of Def.'s Ex. E) containing his comments on the Witter findings and his concurrence in the Witter recommendations except in the one respect that King recommended that, since the record showed that Arnheiter had knowingly, wilfully and admittedly violated regulations, he should be disciplined by the issuance of a punitive letter of reprimand.

Upon receipt of the Witter and King reports, Vice Admiral Baumberger on June 7, 1966, provided Arnheiter with copies of the reports, granted requests of Arnheiter that counsel be made available to assist him and, further, granted requests of Arnheiter and his counsel for opportunity to submit further information and to file comments in rebuttal of the findings and opinions. In addition, on July 15, 1966, Baumberger obtained from Commander Milligan, the preliminary investigation officer, a letter of that date (Part of Def.'s Ex. E) setting forth the sequence of events leading up to the relief of Arnheiter and also enclosing the earlier report to Milligan by Chaplain Dando (Part of Def.'s Ex. E) dated March 26th.

Under date of August 30, 1966, Vice Admiral Baumberger prepared for forwarding to Vice Admiral Semmes, Chief of Naval Personnel, and to Admiral Roy Johnson, Commander in Chief, Pacific Fleet, his own report (Part of Def.'s Ex. E) containing his comments on the Witter and King reports and enclosing an Arnheiter rebuttal statement dated August 5, 1966.

This Baumberger report of August 30th reviews the entire situation and comes to the conclusion that: "Isolated, none of the `alleged irregularities' is sufficient grounds to sustain relief for cause; that there emerges when reviewing the record, together with many conversations held with Lieutenant Commander Arnheiter, and others intimately acquainted with him, the impression of a brilliant, yet complex officer * * * an officer whose actions in a number of instances, both operational and administrative (including the handling of personnel) did cast some doubt in the minds of his superiors that his judgment, discretion and objectivity could be relied upon in an independent command status."

Baumberger expressed his opinion that "had not the Vance been employed in a forward area, a demand for corrective measures by his superiors would have been more appropriate than his relief from command", adding, however, that "the foregoing should not be misconstrued to indicate that the type commander" (i. e.,...