Rickson v. Ward, Civ. No. 73-5-GT.

• Decision Date: 16 April 1973
• Docket Number: Civ. No. 73-5-GT.
• Citation: 359 F. Supp. 328
• Court: U.S. District Court — Southern District of California
• Parties: RMSA Danny H. RICKSON, (Service No. XXX-XX-XXXX), Petitioner, v. Captain J. W. WARD, Commanding Officer, U.S.S. Constellation, and Melvin Laird, Secretary of Defense, Defendants.

359 F. Supp. 328

RMSA Danny H. RICKSON, (Service No. XXX-XX-XXXX), Petitioner, v. Captain J. W. WARD, Commanding Officer, U.S.S. Constellation, and Melvin Laird, Secretary of Defense, Defendants.

Civ. No. 73-5-GT.

United States District Court, S. D. California.

April 16, 1973.

Terry Amdur, Amdur, Bryson, Caplan & Morton, Marina del Rey, Cal., for petitioner.

Harry D. Steward, U. S. Atty., Howard A. Allen, Asst. U. S. Atty., San Diego, Cal., for defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW AND ORDER

GORDON THOMPSON, Jr., District Judge.

The petitioner, a Navy crewmember of the U.S.S. Constellation, filed application for writ of habeas corpus on January 3, 1973, asking this Court to discharge him from the United States Navy, alleging that he is being unlawfully detained and restrained of his liberty. The gist of his complaint is that he has been denied an administrative discharge based upon certain alleged severe hardships.

Petitioner's application for an order temporarily restraining his deployment to the Western Pacific aboard his ship was denied on January 3, 1973, on the basis that petitioner had failed to show that any irreparable injury would probably result therefrom. Further proceedings in the case were continued to January 22, 1973, but thereafter the parties stipulated to a further continuance to February 26, 1973, to enable petitioner to submit certain information he had previously omitted from his original application for hardship discharge. The matter was ultimately submitted on the pleadings, it appearing that for purposes of its limited scope of review the Court was bound by the record considered by naval authorities.

Having considered the pleadings, the briefs of the parties, and the military record of the petitioner relative to his application for hardship discharge, the Court makes the following findings of fact and conclusions of law.

I FINDINGS OF FACT

1. On September 30, 1971, petitioner voluntarily enlisted in the United States Naval Reserve for a period of six years, two of which he agreed to spend on active duty. At the time of his enlistment the petitioner was married and the father of a four month old girl. The petitioner's mother was deceased and his younger brother, Warren, was living with his father in Redondo Beach, California.

2. On July 14, 1972, petitioner's father died, after which petitioner's 17 year old brother, Warren, went to live with petitioner's wife, Pamela Rickson, in Hermosa Beach, California, and became dependent upon petitioner for support. About the same time petitioner's wife became pregnant with their second child, which is currently expected to be born in the latter part of April 1973.

3. On August 1, 1972, the petitioner reported aboard the U.S.S. Constellation (CVA 64) for sea duty.

4. On August 31, 1972, the petitioner applied for a humanitarian reassignment to shore duty in the vicinity of Long Beach, California, in accordance with Bureau of Naval Personnel Enlisted Transfer Manual (TRANSMAN), Chapter XVIII. As justification for the reassignment, petitioner cited the above mentioned facts concerning his father's recent death, his brother's dependency and his wife's pregnancy. He said that he expected to alleviate this alleged hardship as follows:

"If request is approved, the hardship will be eased a little because I'll be able to keep an eye on my brother and my wife and I will be able to get ahead a little. I also plan to see if I can get a part time job."

In the alternative, petitioner requested a hardship discharge.

5. This request was forwarded to the Chief of Naval Personnel (CNP) by the petitioner's commanding officer with a recommendation of disapproval, citing certain inconsistencies between petitioner's application and information obtained from him during an interview by a Hardship Discharge/Humanitarian Reassignment Board held aboard ship. Among them were apparent errors in his description of his medical status and his financial status. Most significant was the fact that the petitioner had been the beneficiary of his father's $10,000 life insurance policy.

6. By letter dated October 13, 1972, the CNP formally disapproved petitioner's request for humanitarian reassignment but passed the case on to the bureau's Hardship Discharge Board, composed of officer, enlisted and civilian personnel, for consideration. That board denied petitioner's alternative plea for discharge and petitioner was notified of this by a letter from the CNP dated November 1, 1972. This correspondence included notice that petitioner could apply again for separation "in the event that the hardship upon which you based your request becomes significantly worse."

7. On December 22, 1972, petitioner submitted a second application for humanitarian reassignment/hardship discharge. The renewed application included the following enclosures in support thereof:

(a) A Record of Emergency Data (NAVPERS Form 1070/602), dated September 1, 1972, which indicated that petitioner's brother was dependent upon him and living at petitioner's wife's address in Hermosa Beach, California. This form was included in petitioner's first application for reassignment/discharge.

(b) A History of Assignments Sheet (NAVPERS Form 601-5) which reflected the petitioner's hospitalization during the month of July 1972. This form has also been included in the prior application of August 31, 1972.

(c) A letter from petitioner dated December 12, 1972, in which he renewed his request for reassignment "not only for financial reasons but mostly for emotional reasons." In the letter petitioner added that:

"I honestly feel that if I am gone when our new baby is born my wife will crack under the tension."

(d) A letter from petitioner's wife Pamela dated December 12, 1972 wherein she states:

"I desperately want and need my husband at home to give me all the emotional support that he can, as well as financial."

(e) Finally, a letter from both petitioner and his wife, dated January 3, 1973, which was forwarded to the CNP on January 4, 1973, for enclosure with the December 22, 1972 request for reassignment. In this document the petitioner attempted to explain how the $10,000 worth of insurance proceeds had been expended, so as to preclude its use in relief of petitioner's claimed financial difficulties. Accepting the document as valid and truthful, however, it specifically accounts for only $5,700.00 of the proceeds. Admittedly, various other and miscellaneous payments are vaguely referred to, allegedly arising from prior doctor bills, in-laws' bills and maintenance of petitioner's brother. Nevertheless, this document failed to accurately account for some $4,300.00 worth of insurance proceeds as of January 3, 1973.

This second request duly proceeded along the same channels as the first, and by letter dated January 19, 1973, the CNP directed petitioner's commanding officer to advise him that his request for transfer/separation had not been considered by the Bureau of Naval Personnel, "since no new documentation was furnished on which to base a reconsideration." Petitioner was again invited to resubmit his application, but cautioned that "such a request should be fully documented, accurately reflect the current situation, specifically indicate how the conditions have deteriorated from those previously presented, and show why petitioner's presence is the only practical solution to alleviate the hardship."

8. Finally, in a letter to the CNP dated February 9, 1973, petitioner's counsel informed the Navy that he could "personally verify that the petitioner's family has no money, and is greatly in need of financial assistance." This conclusionary remark was not in affidavit form nor otherwise supported by independent evidence. Counsel's letter did include the following enclosures:

(a) A letter from Dr. Louis Silver, of Redondo Beach, California dated January 30, 1973, which states that Mrs. Rickson is expected to deliver on or about April 22, 1973, and adds that:

"She is nervous, is living with her mother under difficult circumstances and feels she needs her husband home with her as soon as possible."

(b) A letter from Mr. Howard Stern, of Treasure Island, California, dated January 22, 1973, which indicates he would hire the petitioner as a hardware man in his company's boat yard at an hourly wage of $2.50 per hour upon petitioner's release from the Navy.

9. The CNP replied to petitioner's counsel in a letter dated February 16, 1973, wherein reconsideration of petitioner's case was declined on the ground that counsel's letter and the enclosures thereto contained "no new significant information."

II DISCUSSION

Although petitioner filed the instant action on January 3, 1973, the parties stipulated to continue further proceedings until February 26, 1973 to enable the CNP to complete the processing of petitioner's second application for reassignment/discharge and to allow petitioner to submit to the CNP certain additional—and hopefully clarifying—information in support of his case. The reason for this is the open-ended nature of the Navy's hardship discharge procedure. Instead of a mandatory appeal from a denial of reassignment or discharge, the Bureau of Naval Personnel has a practice that allows resubmission of the serviceman's request whenever he feels he has additional information to substantiate that his situation has materially worsened. Since the petitioner here originally claimed that the CNP had grounded his decision of November 1, 1972, on erroneous findings of fact, the Court thought it appropriate to afford the petitioner the opportunity to demonstrate to the CNP where he had in fact erred, rather than decide the matter on an incomplete record. It appearing that the petitioner has submitted whatever evidence he feels is sufficient to warrant the relief he seeks, the Court will now proceed to decision.

At the outset, it should be noted that this Court has previously declared its opinion as...