Schustack v. Herren, 277

• Citation: 234 F.2d 134
• Decision Date: 01 June 1956
• Docket Number: Docket 23951.,No. 277,277
• Parties: Robert E. SCHUSTACK, Plaintiff-Appellant, v. Lt. General Thomas W. HERREN, United States Army, Individually and as Commanding General, First Army, Lt. Col. Donald K. Hughes, United States Army, Individually and as President of the First Army Field Board of Inquiry, Lt. Col. Joe E. Starns, United States Army Reserve, and Lt. Col. Emil Simmons, United States Army Reserve, Individually and as members of the First Army Board of Inquiry, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

234 F.2d 134 (1956)

Robert E. SCHUSTACK, Plaintiff-Appellant, v. Lt. General Thomas W. HERREN, United States Army, Individually and as Commanding General, First Army, Lt. Col. Donald K. Hughes, United States Army, Individually and as President of the First Army Field Board of Inquiry, Lt. Col. Joe E. Starns, United States Army Reserve, and Lt. Col. Emil Simmons, United States Army Reserve, Individually and as members of the First Army Board of Inquiry, Defendants-Appellees.

No. 277, Docket 23951.

United States Court of Appeals Second Circuit.

Argued March 13, 1956.

Decided June 1, 1956.

Dickstein, Shapiro & Friedman, New York City, David I. Shapiro and Harold Friedman, New York City, of counsel, for plaintiff-appellant.

Paul W. Williams, U. S. Atty., for Southern Dist. of New York, Harold J. Raby, Asst. U. S. Atty., Arthur B. Kramer, Asst. U. S. Atty., New York City, for defendants-appellees.

Before FRANK, LUMBARD and WATERMAN, Circuit Judges.

FRANK, Circuit Judge.

The facts in this case are amply set out in Judge Sugarman's opinion, reported at 136 F.Supp. 850, and we need not repeat them here.

1. No one can reasonably doubt that the Army has the power to discharge without a hearing and without assigning any reason; such power is indispensable to the effective management of the armed services and to the national defense; and with the exercise of that power no court can properly interfere. But plaintiff argues — contrary to Judge Youngdahl's decision in Harmon v. Brucker, D.C.D.C., 137 F.Supp. 475 — that the federal courts have jurisdiction to review the issuance by the Army of a less than honorable discharge, on account of lawful pre-induction conduct, when such a discharge constitutes a violation of the dischargee's constitutional rights. See Marshall v. Wyman, D.C., 132 F.Supp. 169, 173.¹ Plaintiff's argument comes to this: (a) The issuance of a less than honorable discharge, for conduct preceding plaintiff's induction and unrelated to plaintiff's army service, has nothing to do with the management of the armed services, is extraneous to the Army's legitimate functions, and lies wholly beyond its powers. (b) A less than honorable discharge may have important adverse effects on a veteran's eligibility for various benefits under federal and state law,² and on his success in obtaining private or governmental employment.³ (c) Besides this direct pecuniary harm, it involves a social stigma likely to harm plaintiff substantially. (d) Such effects may be aggravated by the requirement that the discharge papers of persons who do not complete their normal tour of duty, but are separated pursuant to AR 604-10 (the Army regulations relating to security risks), contain the statement "AR 604-10 applies," thus publicly proclaiming that the Army considers such persons to be security risks. See AR 604-10 Par. 19(b). (e) Any regulation which authorizes such a substandard discharge, merely because of lawful pre-induction conduct or associations, is unconstitutional. See Bernstein v. Herren, D.C., 136 F.Supp. 493; cf. Harmon v. Brucker, D.C.D.C., 137 F.Supp. 475. We need not and do not consider that argument, for reasons stated infra.

2. The trial judge assigned as one reason for dismissing the suit that it had been begun prematurely, i. e., that plaintiff had not yet received a less than honorable discharge and hence, no deprivation had occurred. This reason receives marked emphasis from facts, of which we take judicial notice, not called to the trial judge's attention. Those facts indicate that it is by no means certain that the regulations now in effect, as construed by the army officials, will necessarily lead to the issuance to plaintiff of less than an honorable discharge. Under recent amendments of Defense Department Directive No. 5210.9, on which the army regulations relating to security discharges are based, the army will take into consideration the service record of plaintiff in determining the character of his discharge, and it is possible that he will receive an Honorable Discharge, despite the "derogatory" information concerning his pre-service conduct and associations.⁴ Apparently, plaintiffs were unaware of these amendments. (Perhaps, all else aside, the case is moot. The shifting and uncertain rulings, not generally published, leave us in doubt on that score.)

3. In Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U.S. 752, 773, 67 S. Ct. 1493, 1503, 91 L.Ed. 1796, the Court said: "It is true that the presence of constitutional questions, coupled with a sufficient showing of inadequacy of prescribed administrative relief and threatened or impending irreparable injury flowing from delay incident to following the prescribed procedure, has been held sufficient to dispense with exhausting the administrative process before instituting judicial intervention." After making this statement, the Court pointed out that a remedy provided by Congress should be preferred, and continued: "To this of course should be added the further qualification that following the prescribed remedy, upon showing made, will not certainly or probably result in the loss or destruction of substantive rights."

We shall assume, arguendo, that that doctrine applies here, and that, especially because the delay incident to that exhaustion of remedies may well involve serious harm to plaintiff, he need not exhaust them before bringing suit. We shall also assume, arguendo, that plaintiff is certain to receive a less than honorable discharge (although, as indicated supra, we think that the army's present policy no longer makes such a result inevitable). Even so, we must affirm: (a) Plaintiff, in effect, seeks to ensure the issuance to him of an honorable discharge. (b) Only defendants' superiors have authority to issue a discharge. (c) The district court had no jurisdiction over those superiors, who were not parties to the suit. It therefore could not grant the desired relief.⁵

4. It might be urged that, if the hearing were certain to terminate in less than an honorable discharge, the district court could validly enjoin the holding of the hearing, even absent the defendants' superiors. But we interpret the regulations to mean that, if no hearing were held, those superiors could and would proceed, without a hearing, to issue a discharge less than honorable. Accordingly, the issuance of such an injunction would resemble the firing a blank cartridge.

For the same reason, we do not consider plaintiff's contention that, under the regulations, the hearing — especially because of want of confrontation and of cross-examination — will violate the requirements of procedural due process.

5. Plaintiff contends that, when he was separated from active service, he was entitled to a Certificate of Service and to a Records of Service. However, even if we assume plaintiff is entitled to these documents,⁶ the defendants cannot issue them; they must be issued by the appropriate officers at the place of separation, Aberdeen Proving Grounds, in Maryland, and those officials are not parties to plaintiff's suit. Wherefore, the district court could not enter an effective order in this respect.⁷

Affirmed.

LUMBARD, Circuit Judge (concurring).

For the reasons set forth in Judge Sugarman's opinion, 136 F.Supp. 850 and on the authority of Blackmar v. Guerre, 1952, 342 U.S. 512, 72 S.Ct. 410, 96 L. Ed. 534; Burns v. McCrary, 2 Cir., 1956, 229 F.2d 286; Reeber v. Rossell, 2 Cir., 1952, 200 F.2d 334; Marshall v. Wyman, D.C.N.D.Cal.1955, 132 F.Supp. 169; Harris v. Bayer, D.C.E.D.Pa.1955, 18 F. R.D. 392; cf. United States ex rel. Vassel v. Durning, 2 Cir., 1945, 152 F.2d 455, the order of the District Court denying appellant's motion for a temporary injunction and the order of the District Court granting respondents' cross-motion to dismiss the complaint should be affirmed.

I refrain from concurring in Judge FRANK'S discussion of other matters as it seems to me that such discussion is not necessary to the decision and regards matters concerning which I do not feel that the Court is or needs to be fully informed.

1 The Supreme Court has not yet spoken on the question of "whether and to what extent the courts have power to review or control the War Department's action in fixing the type of discharge certificates issued to soldiers * * *." Patterson v. Lamb, 329 U.S. 539, 542, 67 S.Ct. 448, 449, 91 L.Ed. 485.

2 Although a General Discharge (Under Honorable Conditions) apparently entitles a veteran to most, if not all, benefits under federal law, the statutes of New York, of which plaintiff is a resident, requires that a veteran have an Honorable Discharge in order to be eligible for various benefits under state law. See e. g. New York Military Law, McK.Consol. Laws, c. 36, §§ 245, 250; New York General Municipal Law, McK.Consol. Laws, c. 24, § 148; New York Education Law, McK.Consol.Laws, c. 16, § 609; New York General Business Law, McK.Consol.Laws. c. 20, § 32.

An Undesirable Discharge has further adverse consequences with regard to state benefits. See e. g. New York Civil Service Law, McK.Consol.Laws c. 7, § 21; New York Education Law, § 608. In addition, such a discharge deprives the veteran of important benefits under federal law. See 5 U.S.C.A. § 851; 38 U. S.C.A. § 691 et seq., as amended. See also Chart prepared by Judge Advocate's Office of the Army, inserted in Hearings, Senate Armed Services Committee on S. 3096, 83d Congress, 2d Session, March 18, 1954, pp. 28-29; American Law of Veterans (1946) pp. 1100-1106.

3 See testimony of Mr. Barry Miller before the Hennings Committee, Hearings, Sub-Committee on Constitutional Rights, Senate Judiciary Committee, pursuant to S. Res. 94, 84th Congress, 2d Session, November 18, 1955, p. 393ff, concerning the difficulties incurred by a veteran, given a less than honorable discharge for security reasons, in obtaining a position with a large corporation doing government defense work.

4 At the hearings before...