Harmon v. Brucker, Civ. A. No. 1972-55.

Citation137 F. Supp. 475
Decision Date24 January 1956
Docket NumberCiv. A. No. 1972-55.
PartiesJohn Henry HARMON, III, Plaintiff, v. Wilber M. BRUCKER, Secretary of the Army, Defendant.
CourtU.S. District Court — District of Columbia

David Shapiro, New York City (Dickstein, Shapiro, Fredman, New York City), James H. Heller, Helen M. Rosenthal, Washington, D. C., for plaintiff.

Joseph Guilfoyle, Donald MacGuineas, Edward Hickey, Washington, D. C., for defendant.

YOUNGDAHL, District Judge.

This cause came on to be heard on cross-motions for summary judgment.

Plaintiff was inducted into the Army on October 31, 1952, under the Universal Military Training Law of 1948, 50 U.S.C.A.Appendix, § 451 et seq. On February 9, 1954, he was orderd to reply to certain derogatory information which the Army had received about him. On March 11, 1954, plaintiff replied to questions concerning allegedly subversive activities in which he was involved in 1949, 1951, and 1952, such as employment at Camp Lakeland, with the Detroit Urban League, registering to vote with the American Labor Party in New York, and soliciting funds for defense of persons indicted under the Smith Act, 18 U.S.C.A. § 2385. Plaintiff's father and stepmother were alleged to be subversive.

Save for plaintiff's continuing association with his parents and for writing one letter requesting contribution for the legal defense of two persons indicted under the Smith Act, all charges against plaintiff were based on conduct antedating his induction into the Army.

On the basis of these facts the Army informed plaintiff, on April 2, 1954, that although he would be retained in the Army, he would not be promoted; that he would not be discharged as disloyal or subversive, but he would be assigned to non-sensitive duties; and that upon completion of his term of service, he would be given a discharge relative to the type of service rendered as of the date he became eligible for separation.

On April 7, 1954, the Secretary of Defense issued a Department of Defense Directive, number 5210.9, which modified existing regulations of the Armed Services so as to make the civilian security program for government employees apply to the military. Cases previously cleared were ordered reviewed and on May 26, 1954, the Adjutant General informed plaintiff's Commanding Officer that he would be discharged with an Undesirable Discharge under the provisions of Army Regulation No. 615-370, although the discharge now appears to have been made under 5210.9, i. e., that retention of plaintiff was inconsistent with the interests of national security. On June 2, 1954, plaintiff was discharged from the Army.

Plaintiff then applied unsuccessfully to the Army Discharge Review Board and the Army Board for the Correction of Military Records to have the character of his discharge changed from Undesirable on the ground that his services both as to character and efficiency had been rated as excellent throughout his entire army life. After plaintiff requested the Secretary of the Army to award him an honorable discharge, his case was reopened by the Army Board for Correction of Military Records but relief was denied.

In his complaint, plaintiff states that he is not now and never has been a member of the Communist Party or any of its front organizations, or of any organization which has engaged in subversive activities of any kind. Plaintiff asserts that he has always been "unswervingly loyal to the Government of the United States." To this the government responds that for lack of knowledge and information sufficient to form a belief, it denies plaintiff's assertion, but in its argument it concedes that it has never found plaintiff either disloyal or loyal. Since the position of the government is that plaintiff was dismissed under Directive 5210.9 which requires no finding of disloyalty, it maintains that assertions of loyalty are not material to the legal issues raised by the motions for summary judgment.

The Government concedes that during the entire period of plaintiff's military service he received an excellent rating both as to character and efficiency.

The authority to prescribe conditions under which a soldier shall be discharged from service has been vested by the Congress in the Secretary of the Army. 10 U.S.C.A. § 652a. Since the statute does not specify the categories of discharges to be issued, the Secretary has authorized a series of Army Regulations establishing five categories and describing the circumstances under which they shall be given. An Undesirable Discharge is issued to persons separated by administrative action from the Army because they are found to threaten the Army's discipline, or morale, or function as a national defense arm. Plaintiff was issued such a discharge as a security risk.

Understandably the establishment of standards and the administration of these standards have been considered as peculiarly military. It must be so for the military does constitute a specialized community, of necessity governed by a discipline uniquely adapted to its own needs. Respecting this the courts have been scrupulously careful not to interfere with, or intervene in, authorized and legitimate army matters. The statute authorizing military determination of discharge certificate has been construed to restrict judicial review.1 Chief Judge Edgerton noted in Gentila v. Pace, 1951, 90 U.S.App.D.C. 75, 77, 193 F.2d 924, 927:

"We think Congress intended that the Board's full and `final' review should not be subjected to a further review, or series of reviews, in the courts. We may suppose that Congres
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7 cases
  • Arnheiter v. Ignatius
    • United States
    • U.S. District Court — Northern District of California
    • 22 October 1968
    ... ... 2 ...         Likewise, in 1958, the Supreme Court in Harmon v. Brucker, 355 U.S. 579, 78 S.Ct. 433, 2 L.Ed.2d 503, again intimated ... ...
  • Harmon v. Brucker, 13230.
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • 31 January 1957
    ...on the ground that both cases also involve "a review of the findings upon which the separation was based * * *." Harmon v. Brucker, D.C.D.C.1956, 137 F. Supp. 475, 477. In this the District Court was wrong. The "findings upon which the separation in the present case was based" are not chall......
  • Schustack v. Herren, 277
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 1 June 1956
    ...exercise of that power no court can properly interfere. But plaintiff argues — contrary to Judge Youngdahl's decision in Harmon v. Brucker, D.C.D.C., 137 F.Supp. 475 — that the federal courts have jurisdiction to review the issuance by the Army of a less than honorable discharge, on account......
  • McKenzie v. Kirkpatrick, 35301.
    • United States
    • U.S. District Court — Northern District of California
    • 14 May 1956
    ...D.C.1954, 121 F.Supp. 726; Marshall v. Wyman, D.C.1955, 132 F.Supp. 169; St. Helen v. Wyman, D.C., 139 F. Supp. 545; Harmon v. Brucker, D.C.1956, 137 F.Supp. 475; Patterson v. Lamb, 1946, 329 U.S. 539, 67 S.Ct. 448, 91 L.Ed. 485; Gentila v. Pace, 1951, 90 U.S.App. D.C. 75, 193 F.2d Williams......
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