Reed v. Franke

• Decision Date: 25 October 1960
• Docket Number: No. 3266.,3266.
• Citation: 187 F. Supp. 905
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Milton C. REED, Chief Storekeeper, U. S. Navy, Plaintiff, v. Hon. W. B. FRANKE, Secretary of the Navy, Rear Admiral F. M. Hughes, Commandant, Fifth Naval District, and Commander Robert A. Mayo, U. S. Navy, Flag Administrative Unit, Commander-in-Chief Atlantic Fleet Headquarters, Defendants.

187 F. Supp. 905

Milton C. REED, Chief Storekeeper, U. S. Navy, Plaintiff, v. Hon. W. B. FRANKE, Secretary of the Navy, Rear Admiral F. M. Hughes, Commandant, Fifth Naval District, and Commander Robert A. Mayo, U. S. Navy, Flag Administrative Unit, Commander-in-Chief Atlantic Fleet Headquarters, Defendants.

No. 3266.

United States District Court E. D. Virginia, Norfolk Division.

October 25, 1960.

Vincent A. Bertolini, Norfolk, Va., for plaintiff.

Joseph S. Bambacus, U. S. Atty., Roger T. Williams, Asst. U. S. Atty., Richmond, Va., for defendants.

WALTER E. HOFFMAN, District Judge.

Plaintiff, a Chief in the United States Navy with 18 years of service to his credit, is under an enlistment which will not expire until March 21, 1962, at which time he will have served sufficient time to permit his retirement on pension. On May 24, 1960, plaintiff was notified by the defendant, Mayo, that action was contemplated by way of administrative discharge. Plaintiff submitted a letter in support of his contention that he was not an alcoholic, although he freely conceded that he "occasionally overindulged" and that, in December, 1959, and May, 1960, he was properly convicted on each occasion of operating an automobile under the influence of intoxicants which resulted in accidents occurring on government property. The special court martial on May 20, 1960, followed a collision between an automobile occupied by the Chief of Staff, SACLANT, and plaintiff. While the attendant publicity of this incident may have partially prompted, or otherwise indirectly brought about, further administrative action by way of discharge, it is of no consequence in the present proceeding.

Following his conviction by a summary court martial on December 14, 1959, plaintiff was restricted and forfeited $150 for one month. He was warned by his Executive Officer, Medical Officer, and Commanding Officer that he should abstain from drinking entirely, as he apparently was unable to drink moderately. Prior to December, 1959, plaintiff had been observed on several occasions as being under the influence of intoxicants and was warned by his Division Officer.

His second accident involving the Chief of Staff took place on April 11, 1960. Thereafter, and prior to the special court martial, plaintiff was hospitalized where his case was diagnosed as chronic alcoholism. The special court martial subsequently imposed a sentence of restriction to the limits of the CINCLANTFLT compound area for four months and forfeiture of $150 per month for a like period.

On June 10, 1960, the defendant, Mayo, having reviewed the record of plaintiff, including an incident which occurred on November 2, 1956,¹ recommended that plaintiff be discharged from naval service by reason of unsuitability. On July 6, 1960, the Chief of Naval Personnel directed that plaintiff be separated with a general discharge, under honorable conditions, by reason of unsuitability, with the "reason not to be shown" on said discharge. The authority for such action by the Chief of Naval Personnel rests in Article C-10310, BuPersManual and Code 289. This injunction action was filed on July 28, 1960, prior to the actual discharge of said plaintiff, and on July 29, 1960, District Judge Sterling Hutcheson entered a temporary restraining order which was thereafter continued pending final hearing.

The defendants, appearing in the name of the United States, have filed a motion for summary judgment or, in the alternative, a motion to dismiss. Plaintiff has likewise filed a motion for summary judgment. To determine the facts of the controversy, the Court heard evidence on the merits. Other than his drinking habits, there is nothing in the record reflecting that plaintiff is otherwise unsuitable for naval service. Plaintiff, while denying the diagnosis of alcoholism, admits that he has, from time to time, consumed alcoholic beverages to an excess. The medical records, upon which the recommendation of the defendant, Mayo, was in part based, furnish the best evidence of the diagnosis, and the testimony of plaintiff's friends and associates is not of great value in this regard.

While plaintiff was represented by counsel at the special court martial, no formal hearing was conducted on the administrative discharge. He was permitted, and availed himself of the opportunity, to transmit a letter outlining his objections to such administrative action.

Unlike the Army and Air Force, Congress has not seen fit to establish any procedure for discharges from the Naval service. Under 10 U.S.C. § 6011, it is provided that United States Navy Regulations shall be issued by the Secretary of the Navy with the approval of the President. Pursuant to this statute, the following regulation was regularly promulgated and approved:²

"C-10310. Discharge of Enlisted Personnel By Reason of Unsuitability.

"(1) Enlisted personnel may be separated, by reason of unsuitability, with an honorable or general discharge, as warranted by their military record. Such discharge, regardless of attendant circumstances, will be effected only when directed by or authorized by the Chief of Naval Personnel. Discharge by reason of unsuitability will not normally be issued in lieu of disciplinary action except upon the determination by the Chief of Naval Personnel that the interests of the service as well as the individual will best be served by administrative discharge. From time to time the Chief of Naval Personnel may issue special instructions to certain field activities for the elimination of the unsuitable among enlisted personnel.

"(2) Attention is directed to article C-10313 which prescribes the procedure for submission of reports and recommendations for discharge by reason of unsuitability.

"(3) Discharges by reason of unsuitability are effected to free the service of persons considered unsuitable for further naval service because of:

* * * * * *

"(e) Alcoholism: chronic, or addiction to alcohol (frequently a manifestation of a basic defect in personality development).

* * * * *

"(g) Other good and sufficient reasons, as determined by the Chief of Naval Personnel."

In referring to article C-10313, it is noted that cases under consideration involving proposed general discharges, under favorable conditions, for unsuitability, unfitness, or misconduct, do not provide for a formal hearing. The enlisted person is entitled to be informed as to the basis for contemplated action, and afforded an opportunity to make a statement in his own behalf. In plaintiff's case, this was done, although plaintiff elected to submit a letter in lieu of making a statement. In a case involving an undesirable discharge by reason of unfitness or misconduct, the enlisted man is entitled to a hearing before a board of three officers, at which time he may be represented by counsel and appear in person.

The contemplated discharge in plaintiff's case deprives him of no inherent rights. It is a general discharge, under honorable conditions. The certificate of discharge will not reflect the basic reason of unsuitability. Plaintiff will retain all of his benefits, other than his right to re-enlist. This means, of course, that he cannot complete his twenty years' service and become eligible for retirement benefits. This is the crux of plaintiff's complaint. In all other respects plaintiff will continue to enjoy all of the rights and privileges accorded to veterans of the military service. According to Navy regulations, hearings are granted only when the enlisted personnel is faced with a forfeiture of his veteran's benefits.

Plaintiff does not contend that the Navy failed to follow the procedures outlined by articles C-10310 and C-10313. Although apparently not required so to do, the Chief of Naval Personnel referred plaintiff's record to an evaluation board for study and report. Counsel for plaintiff refer to this evaluation board as a "kangaroo court". The short answer to this contention is that it is not a court in any sense of the word; it merely served in an advisory capacity to the Chief of Naval Personnel who, by reason of his duties, is probably unable to give the individual attention to each particular case and must, of necessity, depend upon the evaluations of others who have more time to review the military record.

There is no merit to plaintiff's contention that the administrative discharge constitutes additional punishment for the offense involving plaintiff's conviction by the special court martial. It is plain that the Chief of Naval Personnel reviewed the plaintiff's entire naval record before acting. No particular emphasis was placed upon the incident of April 11, 1960, in determining the unsuitability of plaintiff.

At the outset it may be said, with little fear of contradiction, that there is no vested right to federal employment. Jason v. Summerfield, 94 U.S. App.D.C. 197, 214 F.2d 273, 277, certiorari denied 348 U.S. 840, 75...