Rank v. Gleszer

• Decision Date: 09 August 1968
• Docket Number: Civ. A. No. C-998.
• Citation: 288 F. Supp. 174
• Parties: James A. RANK, Jr., Petitioner, v. Major General Roland M. GLESZER, Respondent.
• Court: U.S. District Court — District of Colorado

288 F. Supp. 174

James A. RANK, Jr., Petitioner, v. Major General Roland M. GLESZER, Respondent.

Civ. A. No. C-998.

United States District Court D. Colorado.

August 9, 1968.

William L. Carew, Colorado Springs, Colo., for petitioner.

MEMORANDUM OPINION AND ORDER

WILLIAM E. DOYLE, District Judge.

Petitioner is currently a member of the Kansas National Guard, in which he enlisted in March 1964. He seeks a writ of habeas corpus to effect his release from the military on the grounds that he is physically unfit for military service. His petition alleges he suffers from several afflictions, including a back injury, an active duodenal ulcer, diabetes, bleeding hemorrhoids, and high blood pressure.

After several physical examinations by the military, petitioner's case was heard by an Army Physical Evaluation Board at Fitzsimons Army Hospital in Denver on July 1, 1968. The finding of that board was that he was fit for military service. Apparently neither petitioner nor his counsel were present at the hearing.

Petitioner has asked for a rehearing by the Physical Evaluation Board to present additional evidence in his behalf. He also seeks judicial relief from this court, alleging that the findings of the Physical Evaluation Board were arbitrary and capricious and in violation of his constitutional rights.

Petitioner is not challenging the validity of his enlistment in the military. He is merely seeking discharge prior to his scheduled discharge date for alleged reasons of physical unfitness.

Under 10 U.S.C. 3811(b) Congress has given the Secretary of the Army power to grant discharges to enlisted members prior to expiration of their term of service. This power is an indication that Congress intended the question of which members merit discharge to be within the discretion of the Secretary rather than the courts. While 10 U.S.C. Chap. 61(secs. 1201-1221) — Retirement or Separation for Physical Disability — provides for disability benefits and for separation or retirement of physically unfit persons in some circumstances, these statutory provisions also clearly contemplate that the decision as to who is physically fit or unfit is to be a discretionary one to be made by the Secretary of the appropriate service or his delegated representatives.

Against this background of apparent Congressional intent that the decision of separation of military personnel should be primarily that of the executive arm, we are confronted at the outset with the question of jurisdiction of a civil court to grant habeas corpus relief to persons challenging their retention in the military.

This court has taken the position that where all administrative recourse has not been explored the court will not pass on the question of jurisdiction to grant relief. Noyd v. McNamara, 267 F.Supp. 701, aff'd 378 F.2d 538 (10th Cir.), cert. den., 389 U.S. 1022, 88 S.Ct. 593, 19 L.Ed.2d 667 (1967). This decision reflects a well-established judicial policy of abstaining from interfering in military affairs.

The judicial reluctance to assert jurisdiction over the question of a man's retention in the military is based upon the recognition that the military constitutes a separate administrative system within the executive branch, and that a man who becomes a part of the military thereby acquires a status which subjects him to a whole new system of laws and regulations. Most importantly, the policy of judicial non-intervention in the affairs of the military is based on the recognition that the military is best left to solve its own problems within its administrative system. As stated by the Supreme Court in Orloff v. Willoughby, 345 U.S. 83, 73 S.Ct. 534, 94 L.Ed. 842 (1953):

"We know that from top to bottom of the Army the complaint is often made, and sometimes with justification, that there is discrimination, favoritism or other objectionable handling of men. But judges are not given the task of running the Army. The responsibility for setting up channels through which such grievances can be considered and fairly settled rests upon the Congress and upon the President of the United States and his subordinates. The military constitutes a specialized community governed by a separate discipline from that of the civilian. Orderly government requires that the judiciary

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