Hayes v. Secretary of Defense

• Decision Date: 03 July 1975
• Citation: 515 F.2d 668,169 U.S. App. D.C. 209
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 668

515 F.2d 668

169 U.S.App.D.C. 209

Mark HAYES, Appellant v SECRETARY OF DEFENSE et al., Appellees.

No. 74-1360.

United States Court of Appeals District of Columbia Circuit.

Argued 27 Feb. 1975.

Decided 3 July 1975.

William J. Stevens, for appellant. David A. Jones, Washington, D. C., also entered an appearance for appellant.

Jeffrey T. Demerath, Asst. U. S. Atty., with whom Earl J. Silbert, U. S. Atty., John A. Terry and James F. McMullin, Asst. U. S. Attys., were on the brief for appellees.

Before RIVES, ^* Senior Circuit Judge, and McGOWAN and WILKEY, Circuit Judges.

WILKEY, Circuit Judge:

This appeal is taken from an order of the District Court, entered on 11 January 1974, which dismissed the appellant's petition for a writ of habeas corpus mandating his discharge from the United States Army. ¹ The issues raised are (1) whether the appellant has adequately exhausted his administrative remedies within the Army and (2) whether appellant's enlistment contract was valid and binding.

I. Factual Background

On 7 September 1972 appellant signed a three-year enlistment contract with the United States Army which provided for his eventual assignment to special intelligence duties with Army Career Group 97 (ACG 97). He had previously been approved for such enlistment by the Army's Office of Personnel Operations. Appellant also signed, however, prior to his enlistment, a "Contingency Statement" which acknowledged his understanding that final acceptance for duties with ACG 97 was "contingent upon a favorable background investigation, including an evaluation of my personal characteristics and potential capabilities . . .." ² Moreover, the enlistment contract itself incorporated by reference a document entitled "Statements for Enlistment," which declared, inter alia:

I understand that my ultimate assignment to training and duty, and my retention in special intelligence duties will depend upon the following factors which cannot be determined prior to my enlistment:

(3) Favorable conclusion of a background investigation to include an evaluation of my potential and personal characteristics.

I understand that if found to be unqualified for retention in special intelligence duties for any of the reasons cited in this table, I will be so advised, my enlistment commitment will be voided, I will be reassigned in accordance with the needs of the Army, and I will be required to complete the period for which I enlisted. ³

This declaration was signed and acknowledged by the appellant.

On 18 October 1972 the Office of Personnel Operations informed the appellant that he was not approved for special intelligence duties. The letter stated (T)he determination of nonacceptability for controlled intelligence MOS was based on an analysis of all available information, to include an evaluation of personal characteristics and potential capabilities. Consequently, he was considered not as well qualified or as suitable in comparison to other applicants. The nature of this determination is without prejudice and does not reflect on his loyalty or suitability to serve in other capacities in the US Army, nor does it reflect on his eligibility to qualify for a security clearance. ⁴

On 3 November 1972 the appellant applied for immediate separation from the service under Army regulations providing for discharge of an enlisted man when an "enlistment commitment was . . . made but cannot be fulfilled." ⁵ Appellant's application was denied on 20 December 1972 by the Army Personnel Actions Office, on the ground that the Army's enlistment commitment had been expressly conditioned on a favorable background investigation, and that condition had not been met. ⁶

On 16 January 1973 appellant wrote the Department of the Army requesting that he be informed of the nature of any negative data in his dossier responsible for his rejection from the ACG 97 program, "so that (he might) offer a rebuttal or explanation." ⁷

In reply to his request, appellant was informed:

(T)he primary reason you were not accepted for Army Career Group 97 was that during your interview for enlistment you failed to truthfully answer the question concerning your employment turnovers. ⁸

Specifically, the letter explained that although appellant had stated in his application that he had quit most of his jobs because they did not offer "future possibilities for advancement," in fact in at least three instances he was fired.

No further steps were taken by appellant prior to his filing of the petition for writ of habeas corpus in the Supreme Court on 14 September 1973, ⁹ some seven months later.

II. Exhaustion of Administrative Remedies

The chief contention of the Army in response to appellant's petition for writ of habeas corpus is that the action is premature. The Army observes that it is a "long settled rule of judicial administration that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted." ¹⁰ As explained recently by the Supreme Court:

The basic purpose of the exhaustion doctrine is to allow an administrative agency to perform functions within its special competence to make a factual record, to apply its expertise, and to correct its own errors so as to moot judicial controversies. ¹¹

According to the Army, appellant has failed to exhaust his remedies in two regards. First, he has made no attempt within regular administrative channels, through an application for reconsideration of the denial of discharge or otherwise, to explain or rebut the allegations which form the basis of the Department's unfavorable background report. Second, he has not presented his claim to the Army Board for Correction of Military Records.

A. Exhaustion Within Administrative Channels

Appellant's response to the Army's first contention is that he exhausted his administrative remedy through regular channels when he applied for a discharge under Army rules governing unfulfilled enlistment commitments, and had his application denied. He could not explain or rebut the allegations relating to his employment turnovers because the Department initially failed to inform him of the factual basis for its decision. It was only after his application was rejected that he was apprised of the charge of dishonesty. In effect, appellant argues, "The respondents (appellees) would ask this Court to hold that Petitioner's (appellant's) attempt to pursue his administrative remedies was insufficient because they withheld relevant information from him during the course of processing his request." ¹²

The Army, in rebuttal, admits that the 18 October 1972 letter to the appellant, while advising him that he was "not as well qualified" as the other applicants, failed to inform him of the exact factual foundation for the Department's conclusion. ¹³ It asserts, however, that this omission was born largely of a desire to protect the appellant from embarrassment and prejudice to his career. Evidence of its good faith is found in the fact that the Department promptly provided the appellant with the explicit reason for its decision when he so requested. At that point, the Army argues, if the appellant wanted to challenge the accuracy of the Department's findings, he had the right to reapply for a discharge and submit in support thereof "pertinent statements or documents which (would) assist in evaluating the service member's claim." ¹⁴

Recognizing, however, that exhaustion is a doctrine of judicial administration which "must be applied in each case with an 'understanding of its purpose and of the particular administrative scheme involved,' " ¹⁵ the Army notes three reasons why application of the doctrine is appropriate here. First, if the appellant is required to present his factual claims to the Department for consideration, it will have an opportunity to develop the necessary factual background upon which judicial review can be based. ¹⁶ Second, and equally important, requiring exhaustion will afford the Army an opportunity "to discover and correct its own errors." ¹⁷ Judicial review may well become unnecessary if the appellant reapplies for a discharge on the basis of material facts previously unknown to the Department. Finally, in order to promote the integrity and effectiveness of the Army's administrative process, it is important that the judiciary refrain from taking cases such as this where an aggrieved party has by-passed the procedures which have been set up specifically to accommodate his claims. ¹⁸

We find the Army's arguments persuasive. The appellant's position that it was incumbent on the Army in the first instance to give him a meaningful explanation for its unfavorable decision, or forfeit its right to require him to challenge the decision through administrative channels is not, however, without merit. Certainly, the phrase "not as well qualified or as suitable in comparison to other applicants" contained in the 18 October 1972 letter disapproving his special intelligence assignment was a poor choice of words for putting the appellant on notice that the Army considered him unqualified for the position. ¹⁹ Had the appellant requested a discharge at that point on the ground that under his enlistment contract a finding of non-qualification (as opposed to "lesser" qualification) was required to relieve the Army of its enlistment commitment and had the Army failed in the face of that claim to reveal its evidence that he was absolutely, not just comparatively, unqualified this would be a difficult case.

Appellant, however, was content simply to assert that he must be discharged because the Army had not placed him in a special intelligence unit. The only conclusion the Department could have drawn from appellant's application was that he claimed an unconditional right under his enlistment contract to be placed in the program of his choice. This claim was defective on its face. Thus, there was no need for the Department...