Rucker v. Secretary of the Army, 81-7216

• Decision Date: 15 April 1983
• Docket Number: No. 81-7216,81-7216
• Citation: 702 F.2d 966
• Parties: Charles Robert RUCKER, Plaintiff-Appellant, v. SECRETARY OF THE ARMY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 966

702 F.2d 966

Charles Robert RUCKER, Plaintiff-Appellant, v. SECRETARY OF THE ARMY, Defendant-Appellee.

No. 81-7216.

United States Court of Appeals, Eleventh Circuit.

April 15, 1983.

Ralph Strawn, Birmingham Area Legal Services, Birmingham, Ala., for plaintiff-appellant.

Herbert J. Lewis, III, Asst. U.S. Atty., Birmingham, Ala., Steven M. Post, Captain, JAGC, Military Personnel Branch, Litigation Division, Office of the Judge Advocate General, Dept. of the Army, Washington, D.C., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before GODBOLD, Chief Judge, KRAVITCH, Circuit Judge, and MORGAN, Senior Circuit Judge.

LEWIS R. MORGAN, Senior Circuit Judge:

Charles Robert Rucker (Rucker) brought this action in the United States District Court for the Northern District of Alabama seeking a judgment declaring that the voidance of his enlistment in the Army is invalid and a writ of mandamus compelling the Secretary of the Army (Army) to issue him an honorable discharge and award him back pay. The district court granted summary judgment for the Secretary of the Army and Rucker appeals to this court. For the reasons set forth below, we affirm in part, vacate in part, and remand to the district court for further proceedings.

I. FACTS:

Charles Robert Rucker first enlisted in the United States Army on July 11, 1958, at the age of 17. Rucker served on active duty until he was discharged for unsuitability on August 17, 1962, under the provisions of Army Regulation No. (AR) 635-209. ¹ During this initial period of enlistment, Rucker demonstrated his inability to adjust to the demands of military life by losing all but two years, eleven months, and twenty-four days of service time due to, inter alia, being absent without leave or confined on eight different occasions. These events culminated in Rucker being discharged under honorable conditions and receiving a general discharge certificate. ²

On October 5, 1973, Rucker reenlisted in the Army under the name of Jean Douglas Jaysura, apparently to conceal his prior service and discharge for unsuitability. Rucker indicated on his enlistment contract he had no prior service. According to AR 601-210, in effect at the time of his second enlistment, an individual who has previously been discharged for unsuitability is prohibited from reenlisting unless he receives a waiver of the disqualification after a two-year period has expired since the prior discharge. Rucker did not receive the required waiver. ³

During the second enlistment, Rucker experienced similar problems to those that culminated in his initial discharge. Rucker had five periods of unauthorized absences and one instance of failing to report for duty. These acts of misconduct resulted in nonjudicial punishment under Article 15 of the Uniform Code of Military Justice, 10 U.S.C. Sec. 815 (1975), ranging from forfeiture of pay to extra duty assignments. Two of the unauthorized absences did not result in punishment. The last period of unauthorized absence began on June 16, 1975, and continued until Rucker was apprehended in Gadsden, Alabama, on November 13, 1975, on suspicion of interstate transportation of a stolen motor vehicle. After Rucker was convicted and sentenced to two years confinement for receiving stolen property, he was transferred to the Federal Corrections Institute in Texarkana, Texas.

During his incarceration, a detainer was maintained on Rucker by military authorities. ⁴ Shortly thereafter, the Army initiated separation proceedings under AR 635-206. This regulation provides for the discharge of soldiers who are convicted of civilian offenses that carry one or more years of confinement. While this discharge proceeding was pending, the Army began processing Rucker's elimination from the Army under Chapter 14 of AR 635-200, which provides for, inter alia, the voiding of an enlistment obtained fraudulently. Rucker was notified January 18, 1975, that the Army had voided his enlistment for fraudulent entry due to Rucker's enlistment under an assumed name and failure to reveal his prior service. The Army did not give Rucker an opportunity to submit statements prior to his elimination proceedings nor did it afford Rucker an opportunity to consult with counsel before it voided Rucker's enlistment.

On November 18, 1977, Rucker filed a petition with the Army Board of Correction of Military Records (ABCMR) requesting a change in his military records to reflect service during his second enlistment under his true name, credit for time served, and a discharge under honorable conditions. The ABCMR, which was established under 10 U.S.C. Sec. 1552 (1956) to allow the Secretary of the Army to correct military records "when he considers it necessary to correct an error or remove an injustice," denied Rucker's request on May 3, 1978, finding no material error. The ABCMR went on to conclude that if Rucker's enlistment had not been voided he would have been discharged based on his civil conviction. ⁵

Rucker filed this action in the district court requesting correction of his records, back pay, and a writ of mandamus directing the Secretary of the Army to issue him an honorable discharge. In the court below Rucker argued that the Army had failed to follow its own regulations in voiding his enlistment by failing to provide him with counsel for consultation, an opportunity to submit statements on his behalf, and a medical evaluation prior to the elimination proceedings. He also argued he was deprived of "liberty" and "property" without procedural due process. The district court concluded that in an AR 635-200 proceeding counsel for consultation and a medical evaluation is dependent upon an individual being under military control and therefore, since Rucker was AWOL and absent from military control during the elimination proceedings, the Army had not violated its regulations. The court also concluded Rucker did not have either a protected property or liberty interest which was adversely affected by the Army's actions and therefore granted summary judgment in favor of the Secretary of the Army. We have jurisdiction of this appeal pursuant to 28 U.S.C. Sec. 1361 (1977). Woodard v. Marsh, 658 F.2d 989, 992 (5th Cir.1981).

II. DISCUSSION:

A. Reviewability. Rucker contends the procedures employed to eliminate him from the military were constitutionally defective and in violation of applicable Army regulations. The Army argues, however, that Rucker's claim is not subject to judicial review because Rucker's separation from the Army is a nonreviewable military decision. ⁶ The Army argues that its decision to void Rucker's enlistment for fraudulent entry rather than issue him a discharge ⁷ based upon his civil conviction and confinement is a discretionary internal matter and therefore not subject to judicial review. We disagree with the Army's characterization of Rucker's complaint and conclude a portion of Rucker's claim is reviewable.

Rucker's challenge to the termination of his enlistment "implicates judicial concern over inappropriate intrusion" into military matters. NeSmith v. Fulton, 615 F.2d 196, 201 (5th Cir.1980). Such concern has led courts to decline review of military matters although the courts generally have jurisdiction of matters concerning military personnel decisions. See, e.g., Woodard v. Marsh, 658 F.2d at 992. This "judicial trepidation" has stemmed from the concern that such review "might stultify the military in the performance of its vital mission." Mindes v. Seaman, 453 F.2d 197, 199 (5th Cir.1971). In an attempt to accommodate the competing interests of non-interference with internal military decisions and the protection of individual rights, this court's predecessor in Mindes v. Seaman, supra, ⁸ established a two-step test to determine whether internal military matters may be reviewed. The first step requires the court contemplating review to determine whether the plaintiff has alleged that the military acted contrary to the Constitution, applicable statutes, or its own regulations and whether the plaintiff has exhausted his administrative remedies. Id. at 201. Once that determination is made, the court must then balance the substance of the allegations against the policy reasons that militate against review based on four factors:

1. the nature and strength of the plaintiff's challenge to the military function; and 2. The potential injury to the plaintiff if review were denied;

3. the type and degree of anticipated interference with the military function; and

4. the extent to which the exercise of military expertise or discretion is involved.

Id. at 201-02. See NeSmith v. Fulton, 615 F.2d at 201; Johnson v. Reed, 609 F.2d 784, 788-89 (5th Cir.1980); West v. Brown, 558 F.2d 757, 759 (5th Cir.1977), cert. denied 435 U.S. 926, 98 S.Ct. 1493, 55 L.Ed.2d 520 (1978).

It is clear that the first prong of this test has been met. Rucker has exhausted his administrative remedies by petitioning to the ABCMR requesting the relief sought in this action and receiving an adverse determination. Rucker has alleged that the Army has violated its regulations by not affording him consulting counsel, a medical status evaluation, and an opportunity to submit statements at the outset of his elimination proceedings. Rucker has also challenged these proceedings on procedural due process grounds. It has been intimated that such allegations obviate the need for weighing the four factors of the second prong of the test. See, e.g., Woodard v. Marsh, 658 F.2d at 992 ("It is well established that, despite Mindes' doctrine of 'nonreviewability,' claims that the Army failed to follow its own regulations or failed to afford procedural due process are reviewable." (citations omitted)). Despite such "loose statements" that might end our inquiry at this juncture, See West v. Brown, 558 F.2d at 759, the correct approach is to proceed to the second step in the Mindes...