Carter v. United States
| Decision Date | 22 January 1975 |
| Docket Number | No. 127-66.,127-66. |
| Citation | 509 F.2d 1150 |
| Parties | Albert H. CARTER v. The UNITED STATES. |
| Court | U.S. Claims Court |
Albert H. Carter, pro se.
Leslie H. Wiesenfelder, Washington, D.C., with whom was Asst. Atty. Gen. Carla A. Hills, for defendant.
Before DAVIS, NICHOLS and KASHIWA, Judges.
This suit for backpay and to correct a wrongful discharge is brought pursuant to 28 U.S.C. § 1491 (as amended August 29, 1972, by Pub.L. 92-415, § 1, 86 Stat. 652). The case is now before the court for review of the opinion and findings of Trial Judge White. Though greatly aided by his opinion and findings of fact, we reach a different result from the one he recommended.
Recently, October 21, 1974, the plaintiff filed a motion alleging indigency and requesting the assignment of counsel to represent him. Counsel are a great help to the court in pay cases, and in respect to a claimant acting pro se, much extra work is thrown on the judges. In this case, the extra work had practically all been done, including trial, the trial judge's report, and briefing of the parties' exceptions. Plaintiff flooded the court with pleadings, motions, and briefs, prepared by himself with great diligence and ingenuity, but not calculated to make our task easier. The motion is denied as coming too late. We believe the denial is harmless to plaintiff in view of the favorable result we reach without aid of counsel.
The essential facts of this case are that Captain Albert H. Carter enlisted in the National Guard, September 16, 1947, and in the Air Force in 1948. He rose through the ranks to qualify for OCS (Officer Candidate School) and a commission in the Air Force Reserve in 1953, and was, prior to his transfer to Turner AFB, Georgia, rated successively higher in each evaluation report, obtaining for the period August 1958 to August 1959, two fitness reports that effectively described him as one of a half dozen best bombadier-navigators in the United States Air Force. Captain Carter was described as an extremely brilliant, dynamic and proficient officer, eminently promotable and highly recommended for various aircrew-instructor positions.
To the extent if at all that Captain Carter's financial problems had caused the Air Force any problems prior to his assignment to Turner AFB, the Air Force was apparently willing to overlook them or minimize them in view of his obviously outstanding airmanship qualities.
However, at Turner Air Force Base, his new commanders recommended his separation from the Air Force. He was "grounded" on April 21, 1960, and was notified that he was being recommended for release from the Air Force involuntarily, the endorsements of the Strategic Air Command Generals Harris and Griswold indicating that an honorable or general discharge was appropriate, based on the noncriminal nature of the financial-irresponsibility charges (and probably also upon his excellent service record and various decorations, in keeping with a long-held service policy currently expressed in 32 C.F.R. § 41.5(d)). The troubles originated in a series of curious transactions with suppliers of goods and services to plaintiff, in the civilian economy. They need not be described in detail. They led to complaints against plaintiff by his creditors to the Air Force.
These troubles led to others, as Captain Carter was one of those unfortunates who, when thwarted and angry, are unable to refrain from abusive language against all those who stand in their way.
The recommendation to release Captain Carter led to a formal Board of Inquiry under AFR 36-2, on September 28-30, 1960, at which Captain Carter was required to "show cause" why he should not be separated from the Air Force. The Board recommended Captain Carter for a discharge under other than honorable conditions, with forfeiture of readjustment pay, on the grounds that he had "demonstrated financial-irresponsibility," "had failed to demonstrate acceptable qualities of leadership required of his grade," "had made false official statements," and "had conducted himself in a manner incompatible with exemplary standards of personal conduct."
The record also indicates that the sudden reversal of personal fortunes was associated with and perhaps caused by a psychological impairment in Captain Carter so that, almost immediately after his Board of Inquiry on September 28-30, 1960, Captain Carter was involuntarily committed to a series of mental wards and hospitals, remaining almost continually confined in military facilities until his December 29, 1960, discharge date, and thereafter in civilian facilities until some unknown time after April 6, 1961.
The outcome of the Board's actions, as reviewed by the Air Force chain of command, was that Captain Carter received an "undesirable" (dishonorable) discharge with forfeitures of readjustment pay, accumulated leave, and certain other separation benefits in place of the general or honorable discharge originally recommended, even though his presence in psychiatric wards effectively precluded his full participation in the review process.
In course of his troubles with the military, others beset him in the civilian world. He was charged with passing a bad check on Sears Roebuck and Co., on August 8, 1960. In his efforts to exculpate himself from this he committed other acts leading to a conviction in a United States District Court for forgery and perjury. He made an insanity defense which the jury rejected. The Fifth Circuit staged an en banc hearing to consider whether the instructions to the jury, which had been on old-fashioned McNaughton principles, were unduly favorable to the prosecution. The result was affirmance by an evenly divided court. Carter v. United States, 325 F.2d 697, (5 Cir. 1963). The defense would have had the circuit follow or at least approach Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862 (1954). Presumably counsel believed that under the Durham rule Captain Carter would have been acquitted as insane. As it was, he served his time pursuant to sentence.
Subsequent to his discharge, Captain Carter has had numerous other problems. Defendant reports that he is now serving a term as an habitual offender in Texas. He has tried unsuccessfully to get his discharge corrected administratively. Eventually he brought suit in this court, specifying in excess of 40 separate errors and issues in regard to his Air Force undesirable discharge. Many of the alleged errors specify statutory, regulatory, and constitutional due process violations by the Air Force.
As a consequence this court referred the case to the trial division under an order that sought to concentrate the trial division's efforts on three issues: (1) improper command influence; (2) the failure to observe proper evidentiary standards (see Glidden v. United States, 185 Ct.Cl. 515 (1968)); and (3) competency of Captain Carter for trial and his eligibility for a disability discharge. Unfortunately, the trial judge's findings have failed to resolve these issues for the court. We have come to believe the basis exists for our decision on broader grounds.
The case is best approached by taking up first the most vulnerable aspect, legally, of the Air Force's proceedings respecting Captain Carter, the type of discharge awarded. It was one of those which inflict a stigma on the recipient. The Air Force has been reporting to would-be employers of Captain Carter that:
It should go without saying, applicable statutes must be honored too. The regulation under which the plaintiff was given the discharge he was given, AFR 362, shifts the burden of proof to the accused in an undesirable, dishonorable, or less-than-honorable discharge proceeding.
AFR 36-2 cites various statutory bases, with no attempt to specify separate procedures based on the critical differences between 10 U.S.C. § 1163 (reserve officers) and 10 U.S.C. §§ 8781-8786 and 8791-8797 (regular officers). These statutes deal with procedures in getting rid of unsatisfactory officers.
The reserve officer provision, 10 U.S.C. § 1163, dates from 1952 and nowhere in the original statute or its legislative history (U.S.Code Cong. & Admin.News, 82d Cong., 2d Sess. (1952), at pp. 2040-2041) is there a hint of authority to conduct a proceeding in which the defendant bears the burden of proof. If a Board so recommends, an officer can be discharged under this provision, with a stigma-type discharge, 10 U.S.C. § 1163(c)(1), without a court-martial or civilian court conviction.
The regular officer provisions, 10 U.S.C. §§ 8781-8786 and 8791-8797, which would have applied to Captain Carter had he been a regular officer instead of a reserve officer, date from 1960. Their language and legislative history (U.S.Code Cong. & Admin.News, 86th Cong., 2d Sess. (1960), at pp. 2872-2873 and pp. 2880-2885) allow for the burden to be cast upon the defendant in a "show cause" proceeding in which there is an honorable or general ("under honorable conditions") discharge awarded. Retirement is authorized for those eligible, and severance pay for others.
AFR 36-2 calls for a single administrative...
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