Sims v. Fox, 73-2707.

• Decision Date: 24 July 1974
• Docket Number: No. 73-2707.,73-2707.
• Citation: 492 F.2d 1088
• Parties: Grover William SIMS, Second Lieutenant, United States Air Force, XXX-XX-XXXXFV, Plaintiff-Appellant, v. Cecil E. FOX, Brigadier General, Etc., and Dr. John L. McLucas, Secretary of the Air Force, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

492 F.2d 1088 (1974)

Grover William SIMS, Second Lieutenant, United States Air Force, XXX-XX-XXXXFV, Plaintiff-Appellant, v. Cecil E. FOX, Brigadier General, Etc., and Dr. John L. McLucas, Secretary of the Air Force, Defendants-Appellees.

No. 73-2707.

United States Court of Appeals, Fifth Circuit.

April 19, 1974.

Rehearing Granted July 24, 1974.

Reginald C. Wisenbaker, Valdosta, Ga., for plaintiff-appellant.

Hale Almand, Jr., Asst., U. S. Atty., William J. Schloth, U. S. Atty., Sam R. Wilson, Asst. U. S. Atty., Macon, Ga., Dr. John L. McLucas, Sec. of Air Force, Washington, D. C., Earl W. Carson, Asst. U. S. Atty., Macon, Ga., for defendants-appellees.

Before TUTTLE, BELL and GOLDBERG, Circuit Judges.

Rehearing En Banc Granted July 24, 1974.

TUTTLE, Circuit Judge:

This appeal raises the question whether the United States Air Force can legally separate a reserve officer for cause by giving him an "honorable" discharge which, however carries with it a "separation designation number 588" signifying a discharge on the ground of "unfitness and/or unsuitability," without affording such officer an opportunity for a hearing. What is not before the Court is the right of the Air Force to relieve a reserve officer from active duty with an unqualified honorable discharge certificate as a part of a reduction in force without a hearing. Lt. Sims contends that he cannot be discharged on the grounds that he is "unfit" or "unsuitable" and ineligible for recall, and also be deprived of his reserve commission as an Air Force officer without minimum procedural due process.

The facts may be briefly stated. The plaintiff whose military career had been entirely satisfactory was charged in the Georgia Criminal Courts with several misdemeanors involving indecent exposure. By order of the State Superior Court judge he was sent to the Central State Hospital at Milledgeville, Georgia, where he remained for several months for a period of extensive psychiatric care and treatment. Thereafter, on March 22, 1973, the Georgia Superior Court judge signed and order discharging Sims without any adjudication of guilt as to all charges pending against him, which said order completely exonerated him of any criminal purpose.¹

In the meantime, on January 24, 1973, Sims was notified in writing of the initiation of administrative discharge proceedings under Air Force Regulations 36-2 by the Commander of his wing at the Moody Air Force Base in Georgia. Air Force Regulations 36-2 are entitled "Administrative Discharge Procedures" and the subhead reads "This regulation establishes criteria for identifying officers of the Air Force serving in the active military service who, because of evidence of unfitness or unacceptable conduct, should be required to show cause for retention in the Air Force. It also prescribes procedures for the disposition of cases involving such officers and those cases approved under Air Force Regulations 35-62, Military Personnel Security Program, for further processing under this Regulation." The January, 1973 notice stated: "I am initiating action against you under AFR 36-2 for the reasons outlined in ¶ 4D(4) of that Regulation." Paragraph (4) deals with the subject matter that may properly subject an officer to an inquiry under Regulations 36-2. Subparagraph D(4) is entitled "Sexual Perversion" and reads: "This includes but is not limited to: . . . (4) indecent exposure."

Plaintiff was advised that he could submit written statements within fifteen days and there was attached to the letter an extract of a report of an investigation that had been made by the appropriate Air Force officers. Sims responded on February 7th and stated "I do not desire to comment on the allegations contained in paragraph 2 to the attached letter." Paragraph 2 contained the allegations as to the indecent exposure already discussed above. Thereafter on February 27, 1973, the Commander Air Training Command recommended to Headquarters U.S. Air Force that plaintiff be given an honorable discharge from all appointments in the United States Air Force. Under the regulations, since Sims was a probationary reserve officer he was not entitled to a hearing before obtaining a discharge as a matter of right. The Commander recommended processing under section E, Air Force Regulations 36-2, which provides for the Secretary of the Air Force, Personnel Board, to review all the documentary evidence, including that submitted by the officer, but without the appearance of the officer or his representation by counsel unless such appearance is determined by the Board to be necessary.

On March 26, 1973, Lt. Sims submitted to the Commander of his wing for forwarding to the Air Training Command a letter expressing his desire to remain in the Air Force and he accompanied this letter with a favorable letter of evaluation relating to his duty performance as well as a report of his psychiatric evaluation at Central State Hospital which contained a statement "The prognosis in this type of disorder with the appropriate treatment, which is primarily psychotherapy, is fairly good, and chances for recurrence of the symptoms are usually nil." Sims also forwarded a copy of the order of the Superior Court discharging him from the state criminal proceedings.

Following the ex parte consideration of Sims' file proper Air Force authorities notified his Commanding Officer at Moody Air Force Base to have him discharged, and such discharge was to be accomplished in the following manner: "Show in orders and item 11(c), DD Form 214 the discharge certificate reason and authority: SDN, 588, ¶ 37, AFR 36-12 and this message." The discharge was to be accomplished within ten days. Prior to the expiration of this date Lt. Sims filed his suit in the district court, seeking to have the discharge enjoined on the grounds that he was entitled to have a hearing with minimal due process procedures before he could be subjected to this unfavorable action against him. The trial court initially granted a temporary restraining order to stay the discharge long enough for it to consider the Government's motion to dismiss. After the hearing the court entered an order dismissing the complaint on the ground that no due process requirements would attach to the ordering of an "honorable" discharge. The court granted a stay to afford Sims an opportunity to appeal. Following the filing of an appeal this Court extended the stay but ordered the appeal expedited. Unfortunately, following oral argument we found it necessary to have supplied excerpts from the relevant Air Force Regulations, and further briefing on the question of exhaustion of administrative remedies.

The real crux of this case is pointed up by the statements by the United States calling attention to the fact that the Secretary of the Air Force may give an "honorable discharge" to any member of the Air Force without a hearing. The position of the defendant is that there are many kinds of "honorable discharges" and this particular discharge certificate which the Air Force has ordered given to Sims carries on its face evidence of serious professional or moral misconduct such as would seriously affect his reputation and opportunity for success in civil life. For a young man twenty-three years of age trained as an aircraft pilot, the result may be devastating.

It is clear that the notations which are required to be placed on Sims' Form 214 (the discharge certificate) even though it is termed an "honorable discharge" make it perfectly plain that he will have been discharged as a result of Board action which had been undertaken because of his "unfitness, unacceptable conduct, or in the interest of national security." This follows from the fact that the instructions for his discharge directed that the discharge certificate contain an entry at the appropriate place giving "reason and authority SDN 588 ¶ 37 AFR 36-12." Paragraph 37 of Regulation 36-12 deals only with separation as a "result of Board action" as to officers "who fail to meet the standards of conduct and performance prescribed by the Secretary of the Air Force." It further provides that the designation SDN 588 would identify "action initiated under AFR 36-2" on any of the grounds of unfitness or unacceptable conduct described in that regulation other than of homosexuality which was assigned SDN 587. In other words, any certificate of discharge bearing the designation SDN 588 carries on its face a statement that the officer concerned had been discharged under Air Force Regulation 36-2 dealing only with "unfitness, unacceptable conduct or in the interest of national security." Moreover, as was readily conceded during oral argument, such a discharge would make such officer ineligible for recall to active duty. Furthermore, the order to discharge Sims "from all appointments in the United States Air Force" means, as we understand it, cancelling his commission in the Air Force Reserve.

Simply stated, an honest inquiry into the basis for Sims' discharge would demonstrate that he had been given a discharge for reasons that would greatly undercut the status of the discharge as "an honorable discharge." The question we are to face therefore is whether a lieutenant in the Air Force can not only have his normal period of active duty terminated for cause, and be deprived of his Reserve Commission, but also have his future jeopardized by having to carry as his certificate of release from the service a document which impugns his character or reputation without having at least an opportunity to make an oral presentation and witnesses on his behalf at some kind of proceeding beyond that authorized under prevailing regulations. We of course are not considering, as we have no right to, what the Air Force Board of Officers, under a proper regulation, should, or would, be likely to do if Lt. Sims had been afforded a hearing in the true sense of the word. We have cited some favorable aspects of his case above...