Van Bourg v. Nitze

• Decision Date: 17 October 1967
• Docket Number: No. 20584.,20584.
• Citation: 388 F.2d 557
• Parties: Mitchell VAN BOURG, Appellant, v. Paul H. NITZE, Secretary of the Navy, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

388 F.2d 557 (1967)

Mitchell VAN BOURG, Appellant, v. Paul H. NITZE, Secretary of the Navy, Appellee.

No. 20584.

United States Court of Appeals District of Columbia Circuit.

Argued April 10, 1967.

Decided October 17, 1967.

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Mr. Chester C. Shore, Washington, D. C., with whom Messrs. Jack Wasserman and David Carliner, Washington, D. C., were on the brief, for appellant.

Mr. George B. Searls, Attorney, Department of Justice, with whom Asst. Atty. Gen. J. Walter Yeagley, Mr. Kevin T. Maroney and Mrs. Lee B. Anderson, Attorneys, Department of Justice, were on the brief, for appellee.

Before BASTIAN, Senior Circuit Judge, and TAMM and LEVENTHAL, Circuit Judges.

LEVENTHAL, Circuit Judge:

This is an appeal from a grant of summary judgment in favor of appellee, defendant below in a declaratory judgment action instituted by appellant to compel the Secretary of the Navy to change the nature of his discharge from "under conditions other than honorable" to "honorable".¹

In 1944 appellant received a commission as an officer in the United States Naval Reserve and was called to active duty. Upon termination of his active service in 1946, he was separated from active Navy duty "under honorable conditions" and transferred to inactive duty in the United States Naval Reserve. During the next five years appellant's contact with the Navy appears to have been negligible. He attended Harvard as a graduate student under the GI Bill of Rights and subsequently became a member of an architectural firm in California.

On August 10, 1951, the Chief of Naval Personnel, acting through the Commandant of the Twelfth Naval District, sent appellant a memorandum advising him that information concerning his conduct or associations had cast doubt upon his loyalty. The memorandum referred to the Navy regulations setting forth the procedure to be followed in determining whether appellant should be discharged from the service.² Accompanying the memorandum was a set of interrogatories for appellant to answer if he be so advised, and a "Narrative Statement of Facts Disclosed By Investigation" prepared by the Office of Naval Intelligence. The "Narrative Statement" contained the following charges: (1) that appellant was known to have been a member of the Communist Party, USA, since 1946 and to have held an office in that organization in 1947; (2) that appellant was known to have subscribed in 1949 to the "Daily People's World," the official West Coast organ of the Communist Party, USA; (3) that appellant attended an American Student Union Camp, cited in 1939 by the Special House of Representatives Committee on Un-American Activities as a Communist Front, from August 18th to August 25, 1940; and (4) that appellant, in 1948, circulated petitions to qualify the Independent Progressive Party on the California ballot.

Appellant retained counsel and was informed that although he could request a hearing before a board of three officers, under then existing Navy regulations the board could rely upon undisclosed confidential information and sources, as well as reports of ex parte investigations. Alternatively, appellant was informed that he could submit his resignation "for the good of the service" and receive a discharge under conditions other than honorable.³ Appellant took the latter course and tendered his resignation.⁴ It was accepted and he was given a discharge "under conditions other than honorable."

On April 8, 1963, appellant filed an application for review of the nature of his discharge with the Navy Discharge Review Board (hereinafter Review Board). The statute authorizing the creation of the Navy Discharge Review Board,⁵ now 10 U.S.C. § 1553 (1964), provides in pertinent part:

"(a) The Secretary concerned shall, * * * establish a board of review, consisting of five members, to review the discharge or dismissal (other than a discharge or dismissal by sentence of a general court-martial) of any former member of an armed force under the jurisdiction of his department upon its own motion or upon the request of the former member * * *. A motion or request for review must be made within 15 years after the date of the discharge or dismissal." Emphasis added.

Subject to review by the Secretary of the Navy, the Review Board may "change a discharge or dismissal, or issue a new discharge, to reflect its findings." 10 U.S.C. § 1553(b) (1964). It is further provided by regulation that the jurisdiction of the Review Board includes "every separation from the naval service, irrespective of the manner evidenced or brought about, except separations by reason of the sentence of a general court-martial." Emphasis added. 32 C.F.R. § 724.2(a) (1967).⁶

Appellant's application for review of the nature of his discharge was made within the 15 year statutory period. Accordingly the Review Board set the matter for hearing. In order to warrant the relief sought, appellant was required to show to the satisfaction of the Review Board that the nature of his discharge "was improperly or inequitably issued under standards of naval law and discipline existing at the time" or since made retroactively applicable. 32 C.F.R. § 724.15(e) (4) (1967).

Appellant appeared at the hearing and was represented by counsel. In his opening statement, counsel requested an opportunity to confront appellant's accusers and explained that had appellant's right to confront his accusers at a hearing been recognized in 1951, appellant would not have submitted his resignation "for the good of the service."⁷ Appellant then testified concerning the charges and the reasons for the course of action he had taken. He denied that he was ever an officer or member of the Communist Party, USA. Although he admitted that he had subscribed to the Daily People's World from 1946 to 1948, he stated that this was prompted by an intellectual and not a political interest and that since then he has not read that newspaper. At age 19 he did attend the American Union Camp for one week, but only because his future wife was going to be there.⁸ And, finally, appellant testified that while he was not a member of the Independent Progressive Party he started a petition to qualify that Party on the California ballot in order "to have a third voice on the political scene" and because of his admiration for its presidential candidate, former Vice-President Henry Wallace.

In connection with the circumstances at the time he tendered his resignation, Appellant testified that in light of then existing Navy regulations⁹ and the political climate existing in 1951, he was afraid to make an issue of the charges even though he felt he was innocent. This was in part due to his desire not to hurt people associated with him, including his partners in his architectural firm. With the change in the climate of the times, an established architectural practice with new partners willing to accept the possible risk attendant upon making the nature of appellant's discharge public knowledge, and a change in the governing law, appellant testified that he felt able to answer the charges against him and seek a change in the nature of his discharge.

On September 25, 1963, the Review Board concluded that the nature of appellant's discharge was proper and that no change was warranted. On the Review of Discharge Form NAVEXOS-2409 (REV.: 6-61) used in appellant's case, under the heading "Conclusion" the Review Board remarked:

"After careful consideration of the testimony given, the facts presented in all available records of the Department of the Navy and of the claims and evidence submitted, the Board finds that the discharge was proper and equitable under standards of law and discipline applicable at the time, or since made applicable, and that the discharge accurately reflects petitioner\'s conduct and character during the period of service which was terminated by the discharge. Not finding sufficient evidence to support a contrary conclusion, the Board concludes that no change, correction or modification should be made in the type or character of the discharge."

That the Review Board failed to make the findings of fact required of it by its own regulations is readily apparent.¹⁰

Less than a month after the above decision, appellant wrote a letter to the Secretary of the Review Board inquiring inter alia, whether the Review Board considered ex parte reports of the Office of Naval Intelligence in reaching its decision. An answer to this letter was not forthcoming until six months later, and at this time appellant was officially advised that ex parte reports of the Office of Naval Intelligence were considered by the Review Board. The Review Board was of the view that appellant's failure, prior to tendering his resignation, to "appear for or request a hearing" or "ask that he be confronted with witnesses against him * * * distinguishes his case from that of Bland" — referring to this court's opinion in Bland v. Connally, 110 U.S.App.D.C. 375, 293 F.2d 825 (1961). The letter went on to say that "by tendering his resignation upon receiving the narrative statement and interrogatories, it was felt that he tacitly admitted the substantial validity of the matter alleged against him and waived all procedural rights."

After being thus advised that ex parte reports were considered by the Review Board, and the Secretary of the Review Board having noted that further review could be sought before the Board for Correction of Naval Records¹¹ (hereinafter Correction Board), appellant promptly filed an application for review with that Board. The record of proceedings before the Review Board was made a part of that proceeding and no further hearing was held. On September 29, 1965, the Correction Board held that insufficient evidence had been presented to indicate probable material error or injustice and denied the application.

Having exhausted his administrative remedies, appellant filed this action for declaratory judgment in the...