Roelofs v. Secretary of Air Force

• Decision Date: 06 February 1980
• Docket Number: No. 77-2088,77-2088
• Citation: 628 F.2d 594
• Parties: , 202 U.S.App.D.C. 307 Thomas B. ROELOFS, Appellant, v. SECRETARY OF the AIR FORCE.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 594

628 F.2d 594

57 A.L.R.Fed. 748, 202 U.S.App.D.C. 307

Thomas B. ROELOFS, Appellant, v. SECRETARY OF the AIR FORCE.

No. 77-2088.

United States Court of Appeals, District of Columbia Circuit.

Argued Dec. 12, 1978.

Decided Feb. 6, 1980.

Appeal from the United States District Court for the District of Columbia (D.C. Civil 76-2274).

Barton F. Stichman, Washington, D. C., with whom David F. Addlestone, Washington, D. C., was on the brief, for appellant.

Kenneth M. Raisler, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert ^*, U. S. Atty., John A. Terry, Peter E. George and William H. Briggs, Jr., Asst. U S. Attys., Washington, D. C., were on the brief, for appellee.

Before BAZELON, Senior Circuit Judge, LEVENTHAL ^**, and ROBB, Circuit Judges.

Opinion for the Court filed by LEVENTHAL, Circuit Judge.

Opinion concurring in the result only filed by BAZELON, Senior Circuit Judge.

LEVENTHAL, Circuit Judge:

Appellant challenges the validity of Section C of Air Force Manual (AFM) 39-12, which authorizes the Air Force to separate a servicemember who has been convicted by civilian authorities of certain types of offenses. ¹ That regulation prescribes that a servicemember who is discharged on the basis of a civilian court conviction normally should receive a less than Honorable Discharge. ² In Part I of this opinion, we reject appellant's challenge to the validity of the relevant discharge regulations. For the reasons set forth in Part II, we remand the case in order to permit reconsideration by the appropriate Air Force authority (a) without any presumption of appellant's susceptibility to an Undesirable Discharge and (b) with a requirement that, if an Honorable Discharge is denied, such denial will be accompanied by the statement of reasons mandated by the Administrative Procedure Act, 5 U.S.C. § 555(e). ³

BACKGROUND AND DISTRICT COURT RULINGS

In November, 1972, in the United States District Court for the Eastern District of California, Thomas Roelofs entered a plea of guilty to a charge of possessing approximately three grams of heroin with intent to distribute, a violation of 21 U.S.C. § 841(a)(1) (1976). In January, 1973, he was sentenced to 18 months imprisonment, with four months to be spent in a jail-type institution and the execution of the balance of the sentence suspended; he was also placed on probation for three years. So that Roelofs could complete the remaining months of his military service, the trial judge stayed the execution of his sentence "to August 10, 1973 or in the alternative, one week after discharge from the Armed Forces if such discharge should occur before August 3, 1973." ⁴

In March 1973, the Air Force initiated a discharge proceeding against Roelofs pursuant to AFM 39-12, § C. Six weeks later, at an administrative hearing before a board of officers, it was determined that, because of his civilian conviction, Roelofs should be issued an Undesirable Discharge. ⁵ When this recommendation was approved by the commanding officer, appellant was discharged on June 25, 1973.

Roelofs applied to the Air Force Discharge Review Board (DRB) to upgrade his discharge to an Honorable Discharge. ⁶ After a hearing, the DRB upgraded the discharge to General, but not to Honorable; it prepared no statement of findings and offered no explanation for its decision. ⁷ Roelofs then applied for an Honorable Discharge to the Air Force Board for Correction of Military Records (BCMR). ⁸ The BCMR denied his application without a hearing; like the DRB, it did not articulate either its findings or its reasoning. ⁹

Having pursued his remedies within the Air Force, Roelofs brought this suit in the United States District Court to compel the Secretary of the Air Force to upgrade his discharge to Honorable. He argued that the Secretary lacked statutory authority to promulgate the regulation relied upon to issue him a less than Honorable Discharge, and that the regulation violated the Due Process Clause of the Fifth Amendment. On cross motions for summary judgment, the district court rejected both claims. This appeal followed. ¹⁰

I. APPELLANT'S CHALLENGE TO THE VALIDITY OF AFM 39-12, § C

The pertinent regulation, AFM 39-12, § C authorizes the Air Force to separate a servicemember who has been convicted of certain types of offenses by civilian authorities ¹¹ and provides that servicemembers so separated will be issued an undesirable discharge "unless the particular circumstances in a given case warrant a general or honorable discharge." ¹² Roelofs challenges only that aspect of the regulation pertaining to the type of discharge certificate issued. He argues that Congress has required that the certificate of discharge must accurately reflect the nature of the military service rendered. He contends that the armed services are prohibited from ordering a less than honorable discharge on the basis of conduct which is not reflected in the record of military service and not found to have adversely affected the quality of that service.

His claim of prohibition on the armed services is based both on the intent of Congress and also, taking into account the stigma and deprivation ¹³ that attend a less than honorable discharge, on the Due Process Clause of the Fifth Amendment. Appellant contends that, since P 2-25 of AFM 39-12, § C prescribes that a derogatory discharge should normally follow a civilian court conviction, without regard for the impact of the illegal conduct on the quality of military service, the regulation exceeds the Air Force's statutory and constitutional authority.

Harmon v. Brucker, 355 U.S. 579, 78 S.Ct. 433, 2 L.Ed.2d 503 (1958), established that a less than honorable discharge may not be based upon activities prior to induction into the service. Though Harmon was decided on statutory grounds the Court was no doubt concerned lest the Army's action subject the servicemembers involved to ex post facto punishment. Other cases circumscribe the military's right to certify a "less than honorable" discharge on the basis of constitutionally protected conduct. ¹⁴ In the instant case, appellant is concededly guilty of having committed a violation of the Federal law prohibiting possession of heroin with intent to distribute the drug. This is not a minor matter, nor is it one raising an ex post facto concern or touching on appellant's constitutional rights. Neither Harmon nor cases involving fundamental liberties control the outcome here.

The challenged regulation in effect provides that if an airman is found guilty of an offense that constitutes a felony under the Code of Military Justice, if triable by court martial, he is subject to discharge for an infraction of military discipline. In this case we consider the regulation only in the aspects involved in appellant's case the issuance of a general discharge for an act that is a felony under Federal law. We are not concerned with other provisions or applications of the regulation, such as discharge for an offense that involves moral turpitude.

There is no doubt that the Air Force can validly take the position that as a matter of personnel policy it does not want in its service persons who commit a felony while in the armed forces. Appellant does not deny this.

Once the ability of the Air Force to discharge convicted individuals is recognized, there is no irregularity in the presumption that discharge under such circumstances will ordinarily be less than honorable. The general attack upon the regulation must be distinguished from consideration of what is appropriate for a particular case. At this juncture, we do not examine the facts of appellant's particular case. What the regulation establishes, through the technique of presumption is an assignment of a burden. For present purposes it is not necessary to refine the pertinent burden, or to define it as a burden of proof, of persuasion, or of coming forward. The point is that it is consistent with law and lore that an "honorable discharge" should ordinarily connote completion of the term of service in good standing, may ordinarily be withheld from a person who commits, while in the armed forces, an offense that would expose him to a penalty of more than one year's confinement. ¹⁵

Appellant asserts that the military is obligated, by statute and the Constitution, to give an honorable discharge to all persons leaving the service unless they have been guilty of conduct that impairs the quality of their military service. ¹⁶ But the military may reasonably and properly look beyond the performance by a particular serviceman of his daily chores, and it may take into account the impact of his "outside" actions in diminishing the overall effectiveness of the military. In some instances, the impact may be relatively direct as when outside crime leads to detention outside military control, or to subjection to control by civil authorities. This is not without pertinence to appellant's situation, and its impact is not gainsaid by the court's decision to permit the Air Force to keep him until the end of his term on August 3, 1973. The court's judgment prevented the military from proposing a renewal of appellant's term, or scheduling duties (including training) in inducement or anticipation of renewal. In many cases there may be a multiplication of such impacts, as in a case like the present one, when the criminal activity of one servicemember is in combination with another, or has the potential to involve still others (if the drugs were sold on the service base), or might use military channels or facilities beyond the ordinary supervision of civilian enforcement authorities. Such matters may be taken into account in the exercise of discretion as to the quality of discharge issued, but they are not conditions of legality for denial of an honorable discharge.

The prime flaw in appellant's approach is the emphasis on the quality of his particular performance of assigned chores and his failure to take...