Jenkins v. Commandant, First Naval District

• Decision Date: 16 September 1969
• Docket Number: Misc. Civ. No. 69-39.
• Citation: 303 F. Supp. 1150
• Parties: John A. JENKINS, Petitioner, v. COMMANDANT, FIRST NAVAL DISTRICT, Department of the United States Navy, Boston, Massachusetts and Commanding Officer Marine Barracks, Charlestown Naval Shipyard, Charlestown, Massachusetts, Defendants.
• Court: U.S. District Court — District of Massachusetts

303 F. Supp. 1150

John A. JENKINS, Petitioner, v. COMMANDANT, FIRST NAVAL DISTRICT, Department of the United States Navy, Boston, Massachusetts and Commanding Officer Marine Barracks, Charlestown Naval Shipyard, Charlestown, Massachusetts, Defendants.

Misc. Civ. No. 69-39.

United States District Court D. Massachusetts.

September 16, 1969.

John C. Cratsley, Cambridge, Mass., for plaintiff.

Herbert F. Travers, Jr., U. S. Atty., Stanislaw, R. J. Suchecki, Asst. U. S. Atty., for defendant.

OPINION

FRANCIS J. W. FORD, District Judge.

Petitioner in this case, a private in the United States Marine Corps, having been denied a discharge from the service, or in the alternative a "humanitarian reassignment" seeks relief from this court by way of habeas corpus.

On January 15, 1968 petitioner with his mother's consent, enlisted in the Marine Corps for a period of four years. After recruit training he was assigned to duty at Camp Pendleton, California. On September 13, 1968, while on leave, he applied at the Marine Barracks, Boston for assistance in preparation and submission of a request for hardship discharge or humanitarian transfer. He was authorized to remain in Boston to gather materials to support his application which he finally submitted on October 30, 1968. He was given an opportunity to appear before a board of three officers appointed to consider his request. The board recommended denial of the requested discharge and the granting of a humanitarian transfer to the Boston area. The commanding officer endorsed this recommendation and forwarded the request to Washington. On November 22, 1968 the Commandant of the Marine Corps disapproved the request in its entirety and Jenkins was then ordered to return to duty with his unit at Camp Pendleton.

In April, 1969 Jenkins was again in Boston on leave from his unit in California. On April 25, 1969 he again appeared at the Marine Barracks in Boston to resubmit his request for discharge or transfer, was again given time in Boston to prepare his request and on May 21 submitted additional information to support his request. On June 21, 1969 the following message denying his request was received at the Marine Barracks from the Commandant of the Marine Corps:

"PLEASE INFO PVT JOHN A JENKINS 2422463 USMC APPLICATION HARDSHIP DIS NOT APPROVED."

This apparently constituted the only document setting forth the final action on petitioner's request.

Petitioner was ordered to report again to Camp Pendleton. However, upon the filing of his habeas corpus petition this court temporarily restrained his transfer from this district, and he has remained here pending final disposition of the habeas corpus proceeding.

Respondents concede that if plaintiff is being unlawfully retained in the service, he is entitled to obtain his release from this court by habeas corpus. It is contended, however, that his application is premature, since he has not yet exhausted his available administrative remedies. Specifically, government contends that before prosecuting this action petitioner should seek relief from the Board for Correction of Naval Records established under 32 C.F.R. § 723.1 et seq. While a petition to the Board has been held to be available to servicemen in petitioner's position, it is not necessary to seek such relief after final denial of his request for discharge before seeking judicial relief. United States ex rel. Brooks v. Clifford, 4 Cir., 409 F.2d 700, rehearing denied, see 412 F.2d 1137; Ogden v. Zuckert, 111 U.S.App.D.C. 398, 298 F.2d 312; Gann v. Wilson, D.C., 289 F.Supp. 191; Girault v. United States, 135 F. Supp. 521, 133 Ct.Cl. 135. But see Craycroft v. Ferrall, 9 Cir., 408 F.2d 587.

The criteria for the granting of a so-called hardship discharge from the Marine Corps are set forth in 32 CFR 730.63 as follows:

§ 730.63 Discharge or release from active duty for reason of dependency or hardship.

(a) Authorization. The commandant of the Marine Corps and all Marine general officers in command may authorize and direct the discharge or release from active duty of enlisted personnel for dependency or hardship.

* * * * *

(c) Limitations. Undue hardship does not exist solely because of altered present or expected income or because the individual is separated from his family or must suffer the inconveniences normally incident to military service. Discharge or release from active duty by reason of hardship or dependency will not be authorized:

(1) For personal convenience alone.

(2) When the Marine required medical treatment.

(3) Solely by reason of the pregnancy of the Marine's wife.

When a Marine who is in a disciplinary status submits an application for discharge or release from active duty by reason of dependency or hardship, see § 730.51(m).

(d) Limitations on disapproval. Discharge or release from active duty will not be disapproved under the provisions of this paragraph solely because:

(1) The enlisted person's services are needed in his organization, or

(2) He is indebted to the Government or to an individual.

(e) Conditions. Discharge or release from active duty for hardship or dependency will be warranted and may be authorized and directed when all the following conditions are met:

(1) Undue and genuine dependency or hardship exists.

(2) Dependency or hardship is not of a temporary nature.

(3) The Marine has made every reasonable effort to relieve the hardship by means of application for dependents allowance and voluntary contributions which are proven inadequate.

(4) Conditions have arisen or have been aggravated to an excessive degree since entry into the Marine Corps or entry on current tour of extended active duty. An example of a meritorious case is one in which the evidence shows that, as a result of the

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