Schulke v. U.S., 75-1170
| Decision Date | 08 November 1976 |
| Docket Number | No. 75-1170,75-1170 |
| Citation | 544 F.2d 453 |
| Parties | Grant A. SCHULKE, Master Sergeant Ret., and Regina H. Schulke, Plaintiffs-Appellants, v. UNITED STATES of America et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Grant A. Schulke and Regina H. Schulke, pro se.
James L. Treece, U. S. Atty., Gary M. Jackson, Asst. U. S. Atty., Denver, Colo., for appellee.
Before PICKETT, Senior Circuit Judge, and SETH and McWILLIAMS, Circuit judges.
This is an appeal from an order of the United States District Court for the District of Colorado dismissing Mr. Grant A. Schulke's complaint for mandamus, and declaratory and injunctive relief. We affirm for the reasons set forth below.
It will be helpful to the resolution of what we perceive to be the narrow legal issue presented by this appeal to sketch briefly the lengthy factual background which led to the filing of this suit.
Mr. Schulke is now retired from active duty with the United States Air Force. Prior to his retirement, he was a career master sergeant assigned to the 1910th Communications Squadron, Air Force Communications Service, Lowry Air Force Base, (LAFB), Denver, Colorado. His duty station was Buckley Air National Guard Base, Denver, Colorado. We will refer to Mr. Schulke as Sergeant Schulke in this opinion.
Sergeant Schulke in August 11, 1973 went to the Judge Advocate General's office at LAFB. His purpose was to request legal assistance in bringing court martial charges against former President Richard M. Nixon for his alleged complicity in the Watergate scandal. This request, with several other factors which need not be set forth here, led to Sergeant Schulke's being interviewed by an Air Force psychiatrist, Doctor Paul Hulsko. Doctor Hulsko felt as a result of the interview that a more extensive examination of Sergeant Schulke was needed. He therefore referred Sergeant Schulke to the Fitzsimons Army Medical Hospital in Denver.
Sergeant Schulke entered Fitzsimons on August 13, 1973. He underwent rather extensive tests covering several days. Following his hospitalization, the news media learned that Sergeant Schulke had been hospitalized immediately after his request to have court martial charges preferred against former President Nixon. There followed much speculation by the media as to whether Sergeant Schulke's hospitalization was a result of his request.
Sergeant Schulke was released from Fitzsimons on an indefinite pass on August 22, 1973, approximately 10 days after his initial commitment. He was permanently released as an out-patient on October 12, 1973.
On October 18, 1973, Sergeant Schulke appeared before an Army medical evaluation board. The Board concluded that he was suffering from involutional psychosis and should be given a medical discharge. This recommendation was adopted by an informal Air Force medical evaluation board, which recommended to the Secretary of the Air Force that Sergeant Schulke be retired with 30% permanent medical disability. He was advised of this recommendation on November 19, 1973.
Sergeant Schulke felt that the Board's conclusion was wrong. Moreover, he felt that to accept the recommendation would be a fraud on the government, since he was scheduled to retire from active duty approximately 2 months from the date of the recommendation. He therefore decided to appeal the board's finding to an Air Force formal medical evaluation board. To shorten the story, the formal board, after receiving further evidence, including the results of further tests it ordered, found Sergeant Schulke fit for active duty. He was ordered returned to his former station.
Upon his return to active duty, Sergeant Schulke earnestly sought to have court martial charges brought against the military personnel responsible for his hospitalization. He believed his commitment was based solely upon his effort to have former President Nixon court martialed. He further believed that the people responsible for his hospitalization were acutely aware of the precarious grounds upon which he was committed. Sergeant Schulke felt that following the news media's discovery of his hospitalization, an effort was made to cover up the actual reason with a fabricated medical reason. He claimed that his return to active duty was proof that the medical reason was fabricated.
Sergeant Schulke's efforts to have charges brought within the military were to no avail. He was notified by both the Air Force and Army general court martial convening...
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