Wood v. Secretary of Defense, Civ. A. No. 77-0684.

• Decision Date: 25 August 1980
• Docket Number: Civ. A. No. 77-0684.
• Citation: 496 F. Supp. 192
• Parties: Perry S. WOOD et al., Plaintiffs, v. SECRETARY OF DEFENSE et al., Defendants.
• Court: U.S. District Court — District of Columbia

496 F. Supp. 192

Perry S. WOOD et al., Plaintiffs, v. SECRETARY OF DEFENSE et al., Defendants.

Civ. A. No. 77-0684.

United States District Court, District of Columbia.

August 25, 1980.

Ronald Simon, Barton F. Stichman, David F. Addlestone, National Military Discharge Review Project, Washington, D. C., for plaintiffs.

Stephen S. Cowen, Asst. U. S. Atty., Washington, D. C., Kenneth M. Raisler, Asst. U. S. Atty., Washington, D. C., for defendants.

MEMORANDUM OPINION

BARRINGTON D. PARKER, District Judge:

This action challenges the authority of the military to issue less than fully honorable administrative discharges¹ to members of the inactive reserves because of civilian misconduct not found to have affected adversely the quality of their military service. The four plaintiffs were issued such discharges for civilian misconduct ranging from an alleged and unprosecuted sexual offense to a conviction for unarmed robbery. They argue that the Department of Defense (DOD) policy underlying their discharges exceeds the military's statutory and constitutional authority in that it does not require a connection between their civilian misconduct and their military service. The plaintiffs seek a declaratory judgment and an injunction requiring the DOD officials to review and upgrade their discharges unless the civilian misconduct relied upon is found to have affected their military service. They also seek certification of this suit as a class action on behalf of similarly situated former members of the inactive reserves. Named as defendants are the Secretary of Defense and the Secretaries of the three services — the Navy, the Army, and the Air Force.

Cross motions for summary judgment have been filed. In addition, the Army has moved to dismiss or for summary judgment on grounds that it no longer engages in the practice complained of. All of the defendants have raised a statute of limitations defense under 28 U.S.C. § 2401(a) seeking dismissal of the complaint.

The Court rules for the plaintiffs and concludes that the DOD regulation and policy as applied, characterizing plaintiffs' discharges as less than honorable without any finding of adverse impact, exceeds the defendants' statutory authority. The Court also grants plaintiffs' motion for class certification. The Army's motion to dismiss is denied and the defendants' statute of limitations defense is rejected. The proceeding is remanded to the DOD in light of this opinion for appropriate action.

I.

The material facts are not in dispute. The four individual plaintiffs were all members of the inactive reserves. As such, they had no military obligations, not even to attend drills or training weekends. They were not required to perform any duties other than keeping the military informed of their current addresses.

Plaintiff Wood, after nearly three years of active duty during which he received the Silver and Bronze Stars, was released to inactive duty with an honorable discharge. Several years later while a member of the volunteer reserve, he was placed on probation by a civilian court after pleading guilty to contributing to the delinquency of a minor, a misdemeanor. He was subsequently issued an undesirable discharge² for "misconduct." No finding was made that his activities affected the quality of his military service. After a period of successful probation, he was allowed to substitute a not guilty plea and the misdemeanor charge was dismissed.

Plaintiff Akers was similarly released from active duty to the inactive reserves with an honorable discharge. Shortly thereafter, criminal sodomy charges were brought against him. They were later dropped. Nonetheless as a result of those charges and the circumstances, Akers was subsequently separated from the inactive reserves with an undesirable discharge for "unfitness."³ His undesirable discharge was later upgraded to a general discharge by a Naval administrative review agency.

Plaintiffs Kruger and Conomos, whose active duty service was characterized as general and honorable respectively, were released from the inactive reserves following civilian felony convictions. Kruger received an undesirable discharge following a grand larceny conviction. Conomos received a similar discharge for an unarmed robbery conviction. Each served a prison term.

After discharge, each plaintiff was denied a full upgrade in discharge by one or more administrative review agencies of the military. At no time during any of the administrative review proceedings, in which the four plaintiffs challenged the characterization of their discharges, was a finding made that the civilian "misconduct" affected the quality of the individual plaintiff's military service or the service generally.

II.

The DOD Directive⁴ in question and at issue here creates a presumption that a discharge for "misconduct" shall be "under other than honorable conditions," i. e., an undesirable. Specifically, the Directive provides that a servicemember's discharge for specified types of misconduct⁵ rendering him unqualified for further military service shall be a

separation under other than honorable conditions, unless the particular circumstances in a given case warrant a general or an honorable discharge. . . .

Only recently in Roelofs v. Secretary of the Air Force⁶ our Court of Appeals upheld an Air Force regulation⁷ nearly identical to the Directive challenged here as authority for the issuance of a general discharge to a servicemember convicted of a federal narcotics offense while on active duty. Roelofs was sentenced to 18 months imprisonment, followed by probation for 3 years. The execution of the sentence was stayed to enable Roelofs to complete his military service. Before he did so, the Air Force discharged him administratively, issuing an undesirable discharge because of his conviction. Roelofs later applied for and was granted an upgrade in discharge characterization to a general discharge.⁸

Roelofs' judicial challenge to his general discharge was virtually identical to that advanced by the plaintiffs. He contended that the Air Force exceeded its authority in issuing him a less than honorable discharge for civilian misconduct without considering the impact of that conduct on the quality of his military service. Because of the similarity of the issues in the two cases, Roelofs provides the legal framework and serves as a guide to the Court for resolution of this proceeding.

Roelofs was on active-duty when charged with and convicted of criminal activity. He was thus subject to military authority 24 hours a day and "expected to respond on short notice and without restriction to orders that might direct expeditious movement from one location to another . .." Crawford v. Cushman, 531 F.2d 1114, 1117 (2d Cir. 1976). To an active duty servicemember, "the Government is often employer, landlord, provisioner and lawgiver rolled into one." Parker v. Levy, 417 U.S. 733, 751, 94 S.Ct. 2547, 2559, 41 L.Ed.2d 439 (1974).

Roelofs makes clear that a discharge for civilian misconduct cannot be characterized as less than honorable absent a showing that the misconduct in some fashion adversely affects the military. The court distinguished between the showing necessary to support a general and an undesirable discharge. For the former, the military need show that the misconduct had an impact on "the overall effectiveness of the military." At 598. For the latter, the conduct must be "service-related." At 598.

The court found the Air Force regulation reasonable in its indication that a good record would warrant either an honorable or general discharge, thus creating the clear impression that

an undesirable discharge indicates the absence of a good record of performance in the service. This is an adverse finding, over and above the stigma of the felony, because it is equivalent to a finding that the serviceman has performed inadequately on the job. The presumption that an undesirable discharge will result from a civilian conviction is warranted if it results in deficiency in performance of military duties or has a direct impact upon military service.

At 599 (emphasis in original).

Since Roelofs retained a general discharge, the Air Force could take into account "the impact of his `outside' actions in diminishing the overall effectiveness of the military."⁹ At 598. The Court of Appeals offered two reasons why a general discharge could be issued Roelofs even though his narcotics conviction was not directly related to the quality of his particular performance of assigned chores. First, it considered a general discharge less deleterious ("different in kind") than an undesirable discharge. Second, it found the stigma of a general discharge comparable to that already borne by the felon. At 598. The court emphasized that its consideration of the regulation was limited to the application presented by Roelofs' case, namely:

the issuance of a general discharge for an act that is a felony under Federal law.

We are not concerned with other provisions or applications of the regulation, such as discharge for an offense that involves moral turpitude.

* * * * * *

We do not have here a case where an undesirable discharge was issued based upon conduct which was not "service-related."

At 597 (emphasis in original).

Nor was the court presented with the application of the regulation to the discharge characterization of inactive reservists. The critically differing nexus with the military between the active duty serviceman and the inactive reservists compels under Roelofs differing treatment of their discharge characterizations. In their reconsideration of this matter the defendants must consider whether the varying acts of "misconduct" for which plaintiffs and the various class members were discharged, had a sufficient impact, under the standards set forth in Roelofs, to justify the particular discharge characterizations they now possess.

Roelofs makes clear that the DOD Directive's...