Boling v. Rockefeller
| Decision Date | 25 January 1967 |
| Citation | 52 Misc.2d 745,277 N.Y.S.2d 168 |
| Parties | Application of Robert L. BOLING, Petitioner, v. Hon. Nelson A. ROCKEFELLER, as Commander in Chief, Air National Guard of New York and A. C. O'Hara, Major General, NYARNG, Chief of Staff to the Governor, Respondents. Application of William F. DUNPHY, Petitioner, v. Hon. Nelson A. ROCKEFELLER, as Commander in Chief, Air National Guard of New York and A. C. O'Hara, Major General, NYARNG, Chief of Staff to the Governor, Respondents. Application of John F. HALLA, Petitioner, v. Hon. Nelson A. ROCKEFELLER, as Commander in Chief, Air National Guard of New York and A. C. O'Hara, Major General, NYARNG, Chief of Staff to the Governor, Respondents. Application of Leo J. KEATING, Petitioner, v. Hon. Nelson A. ROCKEFELLER, as Commander in Chief, Air National Guard of New York and A. C. O'Hara, Major General, NYARNG, Chief of Staff to the Governor, Respondents. |
| Court | New York Supreme Court |
Phillips, Lytle, Yorkey, Letchworth, Hitchcock & Blaine, Buffalo (John R. Lytle, and Peter B. Schreier, of counsel), for petitioners.
Louis J. Lefkowitz, Atty. Gen., of the State of New York (Richard Jenczka, Asst. Atty. Gen., of counsel), for respondents.
Col. Carson Leonard, in pro. per.
Petitioners brought these proceedings pursuant to CPLR Article 78, for a judgment of this court directing the respondents to reinstate them as members in the Air National Guard of New York, to reinstate them as civilian air technicians and to award them back pay.
Petitioners were, for periods ranging from 3 to 16 years, members in good standing of the Air National Guard of the State of New York and were employed as civilian technicians by the Guard for periods ranging from 3 to 12 years.
It was stated on the argument that the petitioners were requested to volunteer for service with their unit in Air Force exercises in Hawaii in the summer of 1965, and that they all refused to do so.
Thereafter each of the petitioners was given an honorable discharge from the Air National Guard, Boling and Halla on August 18, 1965; Dunphy on August 23, 1965 and Keating on November 25, 1965. Each discharge was made prior to the expiration of the term of enlistment. The authority for the discharge is stated in the discharge orders to be Military Law, Section 93 and New York Air National Guard Regulation 39--10. The petitioners were also discharged from their employment in their civilian capacity because of regulations which required that civilian employees of the Guard be members in good standing of the Guard.
On August 14, 1965, the petitioners Boling and Halla, having somehow acquired knowledge of their impending discharge filed grievances protesting the proposed action and asked that the matter be reviewed and corrected. On November 19, 1965, they were advised by the Chief of Staff to the Governor that their grievance complaint was rejected. On April 7, 1965, the petitioner Boling, thru his attorneys, wrote the Governor requesting petitioner's reinstatement as a member of the Guard and as a civilian employee thereof. On April 27, 1966, the petitioner boling was advised by the State Judge Advocate that the action taken in his case was proper. On August 19, 1966, petitioner Boling and the other petitioners commenced the proceedings now before the court. Except for the joinder by Halla with Boling in the August 14, 1965 grievance complaint, the petitioners Halla, Keating and Dunphy took no further action on their respective discharges until the commencement of these proceedings in August, 1966.
In each petition it is alleged that 'it is the belief (of petitioner) that his discharge from the Air National Guard of New York was effected pursuant to rules and regulations that were not filed with the office of the Department of State as of the date of petitioner's discharge and petitioner has been informed by his attorney, and is of the belief, that said rules and regulations were not deemed 'effective' until so filed, in accordance with Article IV, Section 8 of the New York Constitution.' It is also alleged that petitioner 'has been arbitrarily and unlawfully deprived of his membership in the Air National Guard of New York, with its attendant rights and privileges, and, as a result, has been deprived of his employment and salary as a civilian technician thereof.'
In paragraph 1 of Section 3 of the Military Law of the State of New York, it is provided that the Governor of the State shall be commander-in-chief of the militia, is authorized to issue regulations for the government of the militia and that such regulations 'shall have the same force and effect as the provisions of this chapter but they shall conform to the laws and regulations of the United States relating to the organization, discipline and training of the militia, to the provisions of this chapter and, as nearly as practicable to the laws and regulations governing the army, navy and air force of the United States.'
Paragraph 1 of Section 93 of the Military Law provides that 'An enlisted person may be discharged from any force of the organized militia prior to the expiration of his term of enlistment under such conditions as may be prescribed by applicable laws and regulations of the United States and By this chapter and by regulations issued...
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Kolomick v. New York Air Nat. Guard
...of regulation of discrimination in the military separate and distinct from laws of general application (see, Matter of Boling v. Rockefeller, 52 Misc.2d 745, 277 N.Y.S.2d 168). The Governor has the authority to promulgate regulations governing the National Guard (see, Matter of Boling v. Ro......
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Schuyler v. State University of New York at Albany
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