Dunlap v. Akin
| Decision Date | 13 March 1974 |
| Docket Number | Civ. No. 3-74-15. |
| Citation | 376 F. Supp. 138 |
| Parties | Billy Don DUNLAP v. Colonel Robert W. AKIN et al. |
| Court | U.S. District Court — Eastern District of Tennessee |
William Terry Denton, Maryville, Tenn., for plaintiff.
Alex B. Shipley, Jr., Nashville, Tenn., for defendants.
This action is presently before the Court on defendant's motion to dismiss or, alternatively, motion for summary judgment.
Plaintiff's action arises under 42 U.S. C. § 1983 et seq.; jurisdiction accordingly lies under 28 U.S.C. § 1343.
In his complaint, plaintiff asserts that he was enlisted in the Tennessee Air National Guard, 134th Air Refueling, as an Air Guard technician from August 13, 1967 through January 12, 1973. Plaintiff's term of enlistment with the Air National Guard expired on December 8, 1972. Plaintiff was informed by a Colonel Robert W. Akin, Commander of the 134th Air Refueling Group of the Tennessee National Guard, prior to plaintiff's effective termination date that, in exercising his discretion, he had concluded that it was not in the best interest of the Guard to grant plaintiff's reenlistment. Thereafter, a board of officers was convened by Colonel Akin to further advise him whether plaintiff should be permitted to reenlist. Plaintiff's request to appear before this advisory board was denied. The board, in concurring in Colonel Akin's conclusion, recommended that plaintiff not be permitted to reenlist. Plaintiff presently contends that he has never received a copy of any of the charges offered against him or any formal declaration from the advisory board advising him why his continued employment with the unit was not in the Guard's best interest.
Pursuant to the recommendation of the board, and the opinion of Colonel Akin, plaintiff received an order on December 8, 1972, discharging him from the Tennessee Air National Guard and as a Reserve of the Air Force. The reason given in the order for such termination was the expiration of plaintiff's term of enlistment.
Shortly thereafter, on December 13, 1972, plaintiff received a letter from Colonel Akin, notifying him that his employment as a technician would be terminated, effective 30 days from the date of receipt of said letter, due to his loss of membership in the Tennessee Air National Guard. This action was taken pursuant to the statutory directive of 32 U.S.C. § 709(e)(1) (Supp.1973), which provides, in part:
Pursuant to Section 709(e)(3) (Supp.1973), plaintiff filed "on or about the 22nd day of January, 1973," an appeal with the state adjutant general.2
Although plaintiff has not stated what appellate disposition was taken by the adjutant general, it is presumed that an adverse decision was rendered, affirming the action taken by Colonel Akin in denying plaintiff's reenlistment.
Plaintiff's sole allegation is that the discretion vested in the commanding officer to deny reenlistment is necessarily exercised in an arbitrary and capricious manner since such discretion is not couched in sufficiently descriptive standards. Thus, in absence of any definitive guidelines to follow in denying an applicant the opportunity to reenlist, the commanding officer's decision is necessarily arbitrary and capricious.
Although plaintiff requests a jury trial in this action, at this stage in the proceeding it appears that the preliminary question is one of law alone: Can the Court review the actions of a commanding officer of a state militia in denying a currently enlisted technician his request for reenlistment?
Having examined the law and the facts, it is the considered opinion of the Court that, under the circumstances described here, the actions of Colonel Akin and the advisory board and the subsequent appeal to the adjutant general are not subject to review by a civil court.
Tennessee Code Annotated, Title 7, Section 105 (1973) recognizes that "the governor of this state shall be the commander-in-chief of the military forces," and, in addition to his enumerated powers, Id. § 105(a)-(e), is granted "further and general powers . . . as may be necessary."
Likewise, the Air National Guard Regulation 39-10, ¶ 4, provides:
Although the Court is not readily aided in its disposition by a plethora of case law, it is guided by traditional principles that govern the civil review of military proceedings. As plaintiff notes, Baum v. Zuckert, 342 F.2d 145 (6th Cir. 1955), is not factually analogous to the case at bar since in that case the plaintiff was dismissed from active service in the Air Force "for reasons within his control," and the Court in that instance was reviewing personnel action of the Civil Service Commission. Accordingly, the scope of review for the district court was drawn in sharper focus than the review presently before this Court. Baum does evidence, however, the judiciary's historical reluctance to review administrative actions of the military. This principle of judicial discretion should find no less support where the district court is reviewing the administrative proceedings of a state, rather than a federal, militia. Additionally, it should be noted that in Baum, plaintiff's employment was terminated as a result of his reassignment to inactive duty. Here, however, plaintiff was not discharged prior to the end of his enlistment, but merely was denied permission to reenlist. The distinction appears to be more than merely formal, as the scope of review of a discharge of an enlisted man prior to the expiration of his term of enlistment "without honor" would indeed be different from the more routine discharge and denial of reenlistment at the expiration of his term. Since civil review has not been recognized in the former instance, it is difficult to understand effecting such review in the latter instance. See, e. g., Boling v. Rockefeller, 52 Misc.2d 745, 277 N.Y. S.2d 168 (1967). Contrary to the distinction drawn by plaintiff, the discharge or reassignment premised upon misconduct on the part of the enlisted man, such as in the Baum case, provides the basis for a potentially stronger appeal to the civil courts.3
Historically, the relationship between a sovereign and the enlisted man serving in a militia, when couched in terms of either an implied or express contract for the purposes of judicial perspective, is unlike that of his civilian counterpart, notwithstanding statutory provisions. Accordingly, though set forth in a federal posture, it has been articulated in Reid v. United States, 161 F. 469, 472 (S.D.N.Y.1908):
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Gallo v. Brown, Civ. A. No. 77-0720.
...choose not to forward the request to the National Guard Bureau in keeping with the State's discretionary responsibility. Dunlap v. Akin, 376 F.Supp. 138 (E.D.Tenn.1974). However, since Plaintiff's confinement possibility exceeded one (1) year, it appears that he is automatically ineligible ......