Denton v. Seamans
| Citation | 315 F. Supp. 279 |
| Decision Date | 01 July 1970 |
| Docket Number | No. C-50957.,C-50957. |
| Parties | Jere L. DENTON, Plaintiff, v. Robert C. SEAMANS, Secretary of the Air Force, Pentagon, Washington, D. C., Defendant. |
| Court | U.S. District Court — Northern District of California |
Stern, Stotter & Rosenberg, San Francisco, Cal., for plaintiff.
Asst. U. S. Atty. Steven Kazan, San Francisco, Cal., for defendant.
This suit is brought by plaintiff, a former Air Force Captain, against the Secretary of the Air Force for a declaration that his general discharge certificate (under honorable conditions) was illegal and of no effect and for pay and emoluments of the office since that date.
The record shows that plaintiff's discharge resulted from a Board of Inquiry proceeding convened in Germany on August 12-13, 1964, under 10 U.S.C. § 8791 et seq. and Air Force Regulations 36-2. The Board of Inquiry proceedings were thereafter reviewed and affirmed as provided by the statute and the discharge by the Secretary of the Air Force followed on January 26, 1965.
Thereafter, on March 22, 1968, plaintiff applied, pursuant to 10 U.S.C. § 1552, to the Air Force Board For The Correction of Military Records for relief from the discharge on grounds of error and injustice. On May 23, 1968, that Board denied plaintiff's application. This suit was commenced March 14, 1969.
The complaint alleges1 that the proceedings were illegal for various reasons hereinafter set forth.
The case is now before the court on motion of the defendant Secretary for dismissal or in the alternative for summary judgment based on the certified administrative record filed by counsel for defendant.
The record shows that plaintiff was charged with and discharged for (1) Improper association with one Schumacher, an alleged agent of East German Intelligence Service ( 1(a)); (2) Cohabitation and adultery with a woman not his wife, he being married ( 1(b)); (3) Improper attitude toward his Commander, Lt. Col. Wyse ( 1(c)); (4) Possession of obscene photographs in his Air Force quarters; (5) Mismanagement of his personal affairs ( 2); said charges all allegedly being in violation of the applicable regulations.
Plaintiff's first contention is that the Board improperly admitted into evidence and considered a statement of his commanding officer Lt. Col. Wyse without granting plaintiff's request for delay of the hearing to take depositions of Wyse or until Wyse would be available to testify.
The statute under which the Air Force Board of Inquiry was held (10 U.S.C. §§ 8791-8796), provides in effect that the Secretary of the Air Force may convene a board of officers to review the record of any commissioned officer to determine whether he shall be required, because of moral dereliction, professional dereliction, or because his retention is not clearly consistent with the interests of national security, to show cause for his retention on the active list (§ 8791); that such officer shall be given a fair and impartial hearing; that the officer shall be notified in writing of the charges against him at least 30 days before hearing and allowed reasonable time, as determined by the Board of Inquiry under regulations of the Secretary, to prepare his defense and allowed to appear in person and by counsel before the Board and allowed full access to and furnished copies of records relevant to his case (§ 8795); that if the Board of Inquiry determines that the officer has failed to establish that he should be retained, it shall send the record to a board of review (§§ 8792, 8793); that the Secretary may remove an officer from the active list if his removal is recommended by a board of review and the Secretary's action in such a case is final and conclusive.
On the subject of "witnesses" the pertinent regulations, AFR 36-2 (Par. 24 (c)), provide that the officer under charges may request the appearance of any witness whose testimony he believes to be pertinent to his case, specifying in his request the type of information the witness can provide, and the Board will invite the witness to attend if it considers that the witness is reasonably available and that his testimony can add materially to the case (Par. 24(c)).
Further, on that subject, Paragraph 26(d) provides that the Board should invite witnesses to appear if reasonably available and, if in the Board's opinion, their testimony is essential or will contribute materially to the case, Art. 49 USMJ (10 U.S.C. § 849) being used as a general guide in determining availability. The use of affidavits or depositions to obtain testimony of witnesses who are not reasonably available is encouraged. Further, Paragraph 26(d) (2) provides how the Board may request the appearance of members of the Air Force in active military service.
On the subject of "evidence" the pertinent regulations AFR 36-2 (Par. 24 (d)), provide that the officer may submit depositions or unsworn statements, certificates or affidavits for the consideration of the Board of Inquiry and, further, Paragraph 24(f), he may question any witness brought before the Board. Paragraph 26 provides that strict rules of evidence will not be followed but reasonable bounds of relevancy, competency and materiality should be maintained.
On the subject of delay of the hearing Paragraph 26(d) provides that the officer under charges, within 5 calendar days after receipt of notice of place and date of hearing, may request that the hearing be delayed for a specific period of time, normally not more than 15 calendar days; that a delay of more than 15 days will not be granted unless denial will prejudice the rights of the respondent; that requests for delay must clearly establish that the delay is essential for respondent to prepare his case. The Board President will forward any request for delay of more than 15 days to the Major Commander who may approve requests up to 30 days, but, if he disapproves, he in turn will forward it to Air Force Headquarters for final decision.
The record on this point shows that plaintiff was notified as early as February 13, 1964, that he was being recommended for elimination under AFR 36-2 and was furnished with a copy of the letter of recommendation with the evidence in support of the reasons for recommendation attached; his request for a 28 day delay "to obtain statements from certain individuals who live within the United States" was granted to the extent of 15 days under AFR 36-2, par. 14; on March 16th plaintiff filed his rebuttal; on May 6th a selection board recommended that plaintiff be required to show cause for retention and on May 20th the Commander-in-Chief, Air Force Europe, approved; on May 21st plaintiff was so notified and was again furnished a copy of the elimination recommendation and a copy of the selection board report; on June 2d plaintiff stated his intention of appearing before a Board of Inquiry, acknowledged having counsel and stated his full understanding of the procedures involved and of his rights and options; on July 1st plaintiff was notified of hearing scheduled for July 16th; on July 10th plaintiff requested a 15 day delay to July 31st which was granted, and also requested the appearance of Lt. Col. Wyse as a witness; on July 21st plaintiff acknowledged advice of Lt. Col. Wyse's unavailability (Wyse having departed Germany on July 4th for normal return to the United States) and suggested his deposition be taken or in the alternative requested that plaintiff and his counsel be permitted to return to the United States for oral deposition of Wyse or a delay until Wyse would be available to appear and testify; on July 27th plaintiff acknowledged notice of a further continuance of the hearing to August 12th; on July 29th plaintiff was notified that August 12th was a firm date, citing the previous postponements of the hearing and stating there was inadequate justification for further delay.
On August 12th the Board of Inquiry convened, the hearing concluded on August 13th and the Board made its findings and a recommendation that plaintiff be discharged by general discharge certificate without readjustment pay.
On this record this court is called upon to review the final decision of the Air Force Board For the Correction of Military Records—a board created under 10 U.S.C. §§ 1552, 1553.
It has been held that we may inquire into allegedly wrongful refusal of such a Board of Corrections to grant deserved relief concerning the correction of discharge errors or injustices and that we may determine whether the Correction Board has acted within the sphere of its statutory and constitutional authority. (Van Bourg v. Nitze, 128 U.S.App. D.C. 301, 388 F.2d 557, 563 (1967)). It is the law of this circuit that no judicial relief from action of such a Board for Correction of Military Records is available in the absence of a showing that the action was arbitrary or capricious or was unsupported by substantial evidence. Sanford v. United States, 399 F.2d 693 (9th Cir. 1968).
It has been held that, since the vast majority of military discharges are honorable, anything less than an honorable discharge stigmatizes the recipient and is punitive in nature. Bland v. Connolly, 110 U.S.App.D.C. 375, 293 F.2d 852 (1961); Van Bourg v. Nitze, supra, 388 F.2d at 559. In the present case the plaintiff's discharge was not characterized as less than honorable. On the contrary, it was characterized as a general discharge "under honorable conditions".
AFR 36-2, Par. 7, expressly provides that, except under special determination of the Secretary, the officer will be discharged "under honorable conditions" and furnished a General Discharge Certificate.
It is difficult to understand how such a discharge could be considered as a stigmatization of plaintiff or as punitive. Since, however, that point is not urged by defendant we will assume that it is such and will so regard it for the purpose of...
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