Hoorwitz v. Resor, Civ. No. 11957.

• Citation: 329 F. Supp. 1050
• Decision Date: 08 October 1970
• Docket Number: Civ. No. 11957.
• Court: United States District Courts. 2nd Circuit. United States District Court (Connecticut)
• Parties: Phillip HOORWITZ a/k/a Philip Horwitz v. Stanley R. RESOR, Secretary of the Army.

329 F. Supp. 1050

Phillip HOORWITZ a/k/a Philip Horwitz v. Stanley R. RESOR, Secretary of the Army.

Civ. No. 11957.

United States District Court, D. Connecticut.

October 8, 1970.

Dominic J. Squatrito, Manchester, Conn., for plaintiff.

F. Mac Buckley, Asst. U. S. Atty., Hartford, Conn., for defendant.

RULING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT

BLUMENFELD, District Judge.

By this mandamus action, plaintiff seeks to compel the Secretary of the Army to correct Army records to show that he was honorably discharged. The records now indicate that his discharge was "other than honorable." Both parties have moved for summary judgment.

I.

Despite the paucity of official records in this case, going back over 50 years, the parties agree on the following facts.

On April 29, 1914, at the age of 17, plaintiff enlisted in the United States Regular Army for seven years. While in the service, he was twice convicted by courts martial—once in July of 1915 by a summary court martial and again In December of 1916 by a special court martial. Promptly after serving a sentence of six months at hard labor and forfeiture of two-thirds of his pay imposed by the latter court, he was discharged from the Army on May 30, 1917, under the provisions of Par. 148½ of Army Regulations (1913 as amended¹). He received a so-called "blue discharge" which is neither honorable nor dishonorable. Army Reg. ¶ 150, Sec. 3. The blue discharge certificate was handed to him at the time, but he claims to have subsequently lost it, along with his wallet, to a pickpocket. In 1918 he applied for a replacement and obtained a document entitled "Certificate In Lieu Of Lost or Destroyed Discharge Certificate."

In 1932, following an inquiry on his behalf by the Jewish War Veterans, he was informed that his discharge was under other than honorable conditions. In 1964, plaintiff applied to the Veterans Administration for his pension as a veteran. The Veterans Administration rejected his application after obtaining a copy of plaintiff's actual discharge certificate which showed his discharge to be other than honorable. In 1965, plaintiff sought relief from the Army Board for Correction of Military Records (ABCMR). Proceedings pursuant to 10 U.S.C. § 1552 to correct the record so as to show that his discharge was honorable were begun in 1966. After a full hearing before the ABCMR his application was denied.² This action followed.

II.

Having invoked the jurisdiction of the ABCMR, plaintiff is bound by its decision denying his application unless its action was arbitrary or capricious, Gordon v. United States, 121 F.Supp. 625, 629, 129 Ct.Cl. 270 (1954), or violative of a constitutional right, otherwise illegal or without basis in fact. Ashe v. McNamara, 355 F.2d 277, 281 (1st Cir. 1965).

The two convictions by courts martial prior to his appearance before the Board of three officers who determined that he should be discharged under Army Regulation 148½ furnished ample support for the action of the ABCMR. There is no basis for the claim, nor do the facts suggest, that he was at any time denied due process or deprived of any constitutional right. While he did testify that he did not attend the special court martial because his sergeant said he would plead for him, there is no doubt that he knew of the charge, the hearing and his right to appear and be heard. More to the point is the fact that the ABCMR specifically concluded that his unsupported statements of events which occurred 50 years before were "lacking in conviction and do not offer an acceptable basis for overcoming a reasonable presumption of regularity of the records." That conclusion cannot be regarded as erroneous, let alone as arbitrary or capricious. "The presumption of regularity supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties." United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15, 47 S.Ct. 1, 6, 71...