Bolger v. Marshall, 10807.

• Decision Date: 15 November 1951
• Docket Number: No. 10807.,10807.
• Citation: 193 F.2d 37,90 US App. DC 30
• Parties: BOLGER v. MARSHALL, Secretary of National Defense, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

90 US App. DC 30, 193 F.2d 37 (1951)

BOLGER v. MARSHALL, Secretary of National Defense, et al.

No. 10807.

United States Court of Appeals District of Columbia Circuit.

Argued October 15, 1951.

Decided November 15, 1951.

H. Edward Chozick, Washington, D. C., for appellant.

David Orlikoff, Attorney, Department of Justice, Washington, D. C., of the Bar of the Court of Appeals of New York, pro hac vice, by special leave of Court, with whom George Morris Fay, U. S. Atty., at the time the brief was filed, Washington, D. C., and Asst. Atty. Gen. Newell A. Clapp were on the brief, for appellees. Charles M. Irelan, appointed U. S. Atty. subsequent to the argument in this case, Washington, D. C., also entered an appearance for appellees.

Before PROCTOR, BAZELON and FAHY, Circuit Judges.

BAZELON, Circuit Judge.

Ruth F. Bolger, a former enlisted member of the Women's Army Corps, brings this appeal from an order of the District Court granting a motion to dismiss her complaint. The essential facts alleged in the complaint, and assumed to be true for purposes of the motion to dismiss are these: Appellant re-enlisted in the WAC on August 2, 1946, expecting an assignment to the European Theatre. Instead she was assigned to various places within the continental United States and eventually was ordered to a WAC detachment in San Francisco, California, where, on May 4, 1947, she was separated from the service "without any cause, justification or excuse and against her will." Although she was given an "Honorable Discharge," a notation appears thereon indicating that her separation from the service was made pursuant to the authority of paragraph 2, Letter, Headquarters Sixth Army, dated 18 October 1946. Reference to that letter reveals the following content:

"Subject: Elimination of Military Personnel:

"Officers and enlisted personnel other than regular army will be separated as surplus for the convenience of the government:

"(c) Inability to adjust and conform to group living."

Her request for a hearing in connection with the reasons for discharge was denied, notwithstanding the right of enlisted personnel to such procedure where they have been discharged for "inaptitude or unsuitability"¹ or for "unfitness."² Alleging exhaustion of "all rights of appeal before any Army administrative boards," appellant now seeks a declaratory judgment fixing her status as a member of the WAC and for relief in the nature of mandamus vacating her discharge and restoring her to rank in the WAC. On oral argument before this court, counsel for the appellant contended that if the court was without jurisdiction to grant the specific relief sought, it could in any event direct appellees to afford the opportunity for hearing provided by Army Regulation 615-369¹ or Army Regulation 615-368² in cases like appellant's.

Appellees' motion to dismiss is based upon two propositions: First, the decision of the Secretary of the Army in this case is not subject to control by mandamus. Second, there is no right to a hearing under Army regulations in cases of Honorable Discharge.

Appellees do not, however, raise an issue which we believe we are bound to resolve before considering their substantive arguments. That issue is whether appellant has in fact exhausted all available administrative remedies. Appellees' failure to contest the allegation of exhaustion cannot foreclose us from inquiry into it since exhaustion is a matter which involves the District Court's authority to entertain the suit — whether because it is a jurisdictional prerequisite or the result of a "long-settled rule of judicial administration". Myers v. Bethlehem Shipbuilding Corp., 1938, 303 U.S. 41, 50, 58 S.Ct. 459, 463, 82 L.Ed. 638.

From what appears in the briefs, joint appendix and arguments of counsel, it seems clear to us that appellant has not in fact exhausted her administrative remedies. The only remedy which she has pursued is that afforded by the Army Board on Correction of Military Records.³ That Board was created by the authority of § 207 of the Legislative Reorganization Act of 1946 providing that:

"The Secretary of the Army, the Secretary of the Navy, and the Secretary of the Treasury with respect to the Coast Guard, respectively, under procedures set up by them, and acting through boards of civilian officers or employees of their respective departments, are authorized to correct any military or naval record where in their judgment such action is necessary to correct an error or to remove an injustice." 60 Stat. 837 (1946), as amended, 61 Stat. 501 (1947), 5 U.S.C.A. § 191a.

That this procedure was never intended to supplant other applicable remedies is made abundantly clear both by the legislative purpose⁴ and the regulations promulgated pursuant to this section. Those regulations provide that "No application will be considered until the applicant has exhausted all remedies afforded him by existing law or regulations." 32 Code Fed. Regs. § 581.3(g) (1949).

Appellant had and continues to have such a remedy available under the Servicemen's Readjustment Act of 1944.⁵ That Act provides: "The Secretary of the Army * * * is authorized and directed to establish in the Department of the Army * * * a board of review composed of five members * * * whose duties shall be to...