McCurdy v. Zuckert

• Decision Date: 06 May 1966
• Docket Number: No. 23143.,23143.
• Citation: 359 F.2d 491
• Parties: Rufus R. McCURDY, Jr., Appellant, v. Eugene M. ZUCKERT, Secretary of the Air Force, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

359 F.2d 491 (1966)

Rufus R. McCURDY, Jr., Appellant, v. Eugene M. ZUCKERT, Secretary of the Air Force, Appellee.

No. 23143.

United States Court of Appeals Fifth Circuit.

April 14, 1966.

Rehearing Denied May 6, 1966.

Edward R. Kirkland, Orlando, Fla., for appellant.

Charles S. Carrere, Asst. U. S. Atty., Tampa, E. J. Salcines, Jr., Asst. U. S. Atty., Tampa, Fla., Edward F. Boardman, U. S. Atty., for appellee.

Before RIVES and GEWIN, Circuit Judges, and ALLGOOD, District Judge.

RIVES, Circuit Judge:

This appeal is from the denial of Sergeant McCurdy's motion that the Secretary be temporarily enjoined from discharging him from the Air Force. Pursuant to Air Force Regulation No. 39-17 relating to the "Discharge of Airmen Because of Unfitness," a Board of Officers convened at McCoy Air Force Base, Florida, which recommended:

"That Senior Master Sergeant Rufus R. McCurdy, Jr. be discharged from the service prior to the expiration of his term of service, under the provisions of Air Force Regulation 39-17, because of unfitness, and be furnished with a General Discharge Certificate."

The Staff Judge Advocate of McCoy Air Force Base has approved the recommendation of the Board, and all that remains to accomplish the final discharge of Sergeant McCurdy from the Air Force is to issue the Certificate of Discharge which can be done locally at McCoy Air Force Base. Such action has been stayed until the merits of this appeal can be determined.

Sergeant McCurdy's contentions as set forth in his amended complaint in the district court are that the convening of the Board under Air Force Regulation 39-17 was in lieu of disciplinary proceedings and thus contrary to the proscription of Article 1 of Section A of that Regulation that, "Commanders will not take action under this Regulation in lieu of taking disciplinary action."

Sergeant McCurdy had completed about nineteen years' service in the Air Force and would have been eligible for retirement in approximately another year, with a monthly retirement of $240.00. If he is discharged prior to completing twenty years' service, he will lose his retirement benefits. It is the loss of those retirement benefits and the award of a General Discharge Certificate rather than an Honorable Discharge which give rise to McCurdy's claim of irreparable damage. His present enlistment is not scheduled to expire until November 1966, which will be after the twenty-year period required for retirement.

Court-martial proceedings are subject to due process requirements.¹ It is conceded that if Sergeant McCurdy were tried by court-martial he would have the right of confrontation with the witnesses against him and could subpoena witnesses in his behalf. It was further conceded in the district court that the witnesses against Sergeant McCurdy probably would not be produced before a court-martial.

In all other respects the proceedings before the Board evidence a commendably scrupulous regard for Sergeant McCurdy's constitutional rights. He was ably represented by both military and civilian counsel. After a full hearing, the Board found as the basis of its Recommendation that:

"1. On 10 April 1965, sometime between the hours of 1000 and 1900, Sgt McCurdy did, at 5560 Lido Street, Orlando, Florida, commit lewd and lascivious acts, indecent exposure, and indecent acts with Melody Anne Young and Kelly Jean McCurdy.

"2. That the evidence did not support a finding of chronic alcoholism and that Sgt McCurdy\'s military assignments were adequately accomplished, although there was evidence of excessive alcohol intake.

"3. That Sgt McCurdy did have a character and behavior disorder, diagnosed at USAF Hospital, Elgin Air Force Base, Florida, on 20 May 1965, as passive aggressive personality, chronic, moderate."

The two children involved were Sergeant McCurdy's eleven-year-old stepdaughter and his seven-year-old daughter. On April 10, 1965, when it is alleged that the lewd, lascivious and indecent acts were committed, the two little girls reported to their mother, Sergeant McCurdy's wife, as soon as she returned home from work. She consulted with a chaplain, and upon his advice reported to the military authorities. Sworn statements were executed by the wife and by another step-daughter, now of college age, who attested to a claimed incident of McCurdy's earlier indecent fondling of her person.

Thereafter, Sergeant McCurdy and his wife became reconciled. On the application for temporary injunction, Captain Gaylon K. Kintner, the Staff Judge Advocate, testified as to why court-martial proceedings were not instituted:

"Essentially, the reason the court-martial was not instituted in this case was, number one, the fact that we would have to require Sergeant McCurdy\'s children to testify against him. As to one allegation, the statute of limitations precluded a charge in the specification. Secondly, the children were under his parental influence for a long period of time. We didn\'t know how they would testify. We didn\'t know how they would be influenced. I didn\'t feel as if Sergeant McCurdy should be subjected to a harassing charge or specification or any number of them. The court-martial is a disciplinary action. It can subject the individual to confinement, dishonorable discharge, and it is certainly not a pleasant thing even to be charged. We also had our evidence regarding evidence of a fresh complaint which came from Mrs. McCurdy. Mrs. McCurdy refused to cooperate with us. We have what we call Article 32 Investigation which must preceed (sic) the convening of a General Court-Martial. We have no subpoena power in this investigation. We were told by Mrs. McCurdy that the children would not be permitted to testify during this investigation. Thus, doing this investigation we would have to rely upon heresay (sic) evidence which, of course, we cannot substantiate factually grounds for discharges, but the probable most important factor was the fact that Mrs. McCurdy did not want her children to testify against him, that she and Sergeant McCurdy had reconciled and that the children were living under parental control of the would be accused, and we could not expect them to testify as they initially complained against their father in Court. In other words, I didn\'t feel that we could prove beyond a reasonable doubt in a Criminal Trial Sergeant McCurdy\'s guilt."

The district court rendered an able and full opinion which we do not find reported. It denied the Secretary's motion to dismiss for want of jurisdiction, denied McCurdy's application for temporary injunction, and retained jurisdiction until McCurdy had an opportunity to have his case heard by the Air Force Board for Correction of Military Records.

McCurdy carefully restricted his notice of appeal to that part of the judgment which denied the temporary injunction. We must, nonetheless, inquire into the question of the district court's jurisdiction.

In retaining jurisdiction until McCurdy has an opportunity to have his case heard by the Air Force Board for Correction of Military Records, the district court followed the procedure outlined in Covington v. Schwartz, N.D.Calif.1964, 230 F. Supp. 249, as modified and affirmed by the Ninth Circuit, 1965, 341 F.2d 537. That is the only case to which we have been cited where a federal court stayed a discharge from the armed services. One of the grounds on which such unusual intervention was justified was that, "Irrespective of the...