McGinty v. Brownell, No. 13568.

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: PRETTYMAN, BAZELON and WASHINGTON, Circuit
• Citation: 249 F.2d 124,101 US App. DC 368
• Parties: John J. McGINTY, Appellant, v. Herbert BROWNELL, Jr., Attorney General of the United States, et al., Appellees.
• Docket Number: No. 13568.
• Decision Date: 10 October 1957

101 US App. DC 368, 249 F.2d 124 (1957)

John J. McGINTY, Appellant,
v.
Herbert BROWNELL, Jr., Attorney General of the United States, et al., Appellees.

No. 13568.

United States Court of Appeals District of Columbia Circuit.

Argued April 17, 1957.

Decided October 10, 1957.

Petition for Rehearing Denied November 15, 1957.

249 F.2d 125

Mr. Herbert J. Jacobi, Washington, D. C., with whom Messrs. F. Joseph Donohue and John P. Witsil, Washington, D. C., were on the brief, for appellant.

Mr. Donald B. MacGuineas, Atty., Dept. of Justice, with whom Asst. Atty. Gen. George C. Doub and Paul A. Sweeney, Atty., Dept. of Justice, were on the brief, for appellees.

Before PRETTYMAN, BAZELON and WASHINGTON, Circuit Judges.

Petition for Rehearing In Banc Denied November 15, 1957.

WASHINGTON, Circuit Judge.

Appellant McGinty was discharged from his position as an attorney in the Department of Justice "to promote the efficiency of the service," on the ground that he had failed to perform his duties in a satisfactory manner. He appealed the Department's action to the Civil Service Commission's Board of Appeals and Review. The Board affirmed. At appellant's request, the full Commission reviewed the discharge. It affirmed. He then sought a declaratory judgment in the District Court that he had been improperly removed and was entitled to reinstatement. The District Court, on cross motions for summary judgment, granted judgment for the defendants. This appeal followed.

Appellant claims (1) that he is a veteran entitled to the protections of Section 14 of the Veterans' Preference Act,¹ and (2) that he was not afforded those protections. The Government, in its briefs here and before both the Board of Appeals and Review and the Civil Service Commission, argues that appellant is not a veteran within the meaning of that Act. The record shows that appellant was drafted into the Army as an enlisted man in May of 1942. On August

249 F.2d 126

10, 1943, he received an "honorable discharge" in order to accept, on the next day, appointment as an officer. During his active service as an officer certain charges were filed against him, and in January of 1944 he was separated from the Army under conditions other than honorable

The Veterans' Preference Act is applicable to "those ex-servicemen * * * who have served on active duty in any branch of the armed forces of the United States, during any war, * * * and have been separated therefrom under honorable conditions." See 58 Stat. 387 (1944), 5 U.S.C.A. § 851. Appellant did not meet this last requisite. His service was continuous, and he was separated from it under conditions other than honorable. The "honorable discharge" which he received in August of 1943 did not mark the...