John H. Harmon, III v. Wilber M. Brucker, Individually and as Secretary of the Department of the Army

613 coercion, duress, sub- subjected undue courteous to and and inconsiderate co-workers, yelling us- and ordinates and ing no evidence to influence. We find expres- stenographers toward such effect. you sions as here and “You come over Of- Law the Chief Point eleven that hell, and “God damn come fast” Commission Service ficer of Civil right” why you things to- can’t and do and bias decide the issue of the failed to “ignora- ward co-workers such terms as Baughman. Chief Law interest ; (2) that he mus” and “imbecile” and support specifically for no Officer found office, property and used Government allegations superiors that his Green’s personnel per- quantities for in notable ethics, law, ignorant lacked of the were delay causing affairs, sonal business and incompetent, that Officer and specifically and were postponement When and of officialwork. personnel ac- found that thе sustained, surely charges the Association was arbitra- tion of potent more reasons capricious. More- ry, unreasonable good can service of the Government Baughman out, over, we good assigned. It is essential to authority in the was Association, the ultimate employees devote such service that charge of bias and no to Government Government time against the Chairman made. operate superiors at levels and all point final is that and The twelfth regard the rudi- least with a decent Commission Law Officer of the Chief accepted sub- ments of toward manners failing to ask his abused discretion ordinates. appear employees to at the Government Affirmed. hearing. passed on matter We Deviny Campbell.8 v. upon all have commented We merely appellant’s points because arbitrary persistent affirmations of capricious part actions dealing with officials his case because HARMON, III, Appellant, John H. suggest procedural points in some of the beyond peradven firmities. settled It is BRUCKER, Individually Wilber M. ture of doubt that courts will not ex Department discharges into amine the merits Army, Appellee. employees in the executive branch No. 13230. procedural All the Government.9 re quirements fully present met in Appeals United States Court of long findings case. The record contains District of Columbia Circuit. Baughman (seventeen printed of fact Argued Sept. 19, 1956. pages) when recommended the dis Decided Jan. charge Officer of the Chief Law (twenty- the Civil Service Commission May 13, Writ Certiorari Granted printed pages) three when he made his See 77 S.Ct. 863. appeal. recommendation Green arbitrary insists charges against capricious. him, evidence,

and the fall into two main (1) unbearably

parts: dis- States, U.S.App.D.C. v. United 177 8. 90 20 194 F.2d S.Ct. (1900) Keyton ; (1952), 44 L.Ed. 774 certiorari v. An denied 344 U.S. derson, U.S.App.D.C. L.Ed. F. (D.C.Cir.1956); Benenati States, Young, Eberlein United 220 F.2d ; (1921) (D.C.Cir.1955); Kеim Cravens, Williams v.

614 (D.C.Cir.1952); U.S.App.D.C. 380, (D.C. Forrestal, 210 F.2d 874 871 Carter v. U.S.App.D.C. (D.C. Cir.1954), denied 348 U.S. 175 F.2d 364 certiorari Cir.1949), (1954); Black- certiorari denied ‍​‌​‌​‌​​​​​‌‌​​‌‌‌‌​‌​‌‌‌‌​​‌​​​‌​​​‌‌‌​‌‌​​‌​​‌‍75 S.Ct. U.S.App.D.C. (1919); Lee, 47, 94 L.Ed. 507

mon Levy Woods, (D.O.Cir.1953); Powell F.2d (D.C.Cir.1948). U.S.App.D.C. 16, Brannan, F.2d 171 F.2d 145 derogatory had been information which deroga- concerning received him. This tory information itemized in seven “g”. specifications, “a” “a” to Items through “g” “d” and Item concerned reported part, activities on Harmon’s activity part, Item “e” father’s on his stepmoth- Item “f” his activities on part. replied er’s items to the concerning himself, Items “e” but as to ” deepest and “f he mor- said: “It is with indignity coupled al sense with a devout piety, of filial derogatory that I to answer refuse al- statements made under legations my e and As neither father f. any stepmother employed nor government, capacity by federal deroga- I am led to the conclusion that concerning tory information them City, Shapiro, York New I. David Mr. wholly hand.” irrelevant to the case at Appeals of Court of the bar Thereafter Harmon was informed by special vice, pro leave York, hac New disloyal as or subversive H. Hel- Court, James Mr. whom with Army Regulation had not under 615-370 brief, C., Washington, on the ler, D. was favorably he been considered and that appellant. in his would be retained in the service then-present MacGuineas, Atty., B. Donald Mr. grade. Shortly thereafter Atty. Justice, Dept, whom Asst. Secretary the 5210.9, of Defense Directive issued George Doub, Mr. Oliver Cochran Atty., Gen. Gasch, purpose apply of which was to and Messrs. Samuel U. S. military personnel security pro- Attys., Shapiro, E. and Howard D. Slade grams established Executive Order brief, Justice, were on the Dept, of note, respect U.S.C.A. 631 § appellee. employees. civilian Government PRETTYMAN, BAZELON and directed that standard for retention Before Judges. DANAHER, within the armed services Circuit should be “that on all the available information it is de- * * * Judge. PRETTYMAN, Circuit termined that thе retention clearly consistent with interests of Harmon, III, Henry was inducted John security.” 1952, national The directive was ac- Army on October into the Training companied Military a memorandum from the Universal under directing May, 1953, Secretary, some that a Act.1 In review be and Service concerning membership in and questions of all cases which had made theretofore Party, Thereupon Communist been cleared. with the Harmon’s case relations matters, reviewed, Army him were addressed was and the Personnel similar by replied officials. He Board found that his further retention answering questions oath, and re- some service was inconsistent with the fusing answer others of national interests and recom- self-incrimination; discharged possible his an- mended that with an writing signed reduced On swers undesirable June February, no- In he was him. undesirable. Har- Adjutant appealed Discharge General of the the the mon tified reply to certain Board to have the that he Review character (1948), (1951), amended, U.S.C.A.Appendix, seq. 65 Stat. 75 1. 62 Stat. 604 451 et discharge changed Discharge from undesirable General hearing, to honorable. He was Under Honorable Conditions appeared, at which he and thereafter his from the Armed Forces of the application change for a was denied. He United States of America applied to the Board for the Cor- certify This is to Military rection of Records for Henry John Harmon III US51 change discharge, applica- in his and that ' n Private AUS tion was denied. then made a direct Discharged from the request to the for award of an discharge, request of the United States Secretary, reviewed an Assistant who day on the 2d of June 1954 referred it to the Board the Correc- under honorable conditions Military tion of Records. Harmon de- hearing Board, clined a before that stat- [Signed] R L Richstatter ing that he had no additional facts to R L Richstatter present. position He took the Captain Adjutant Corps General’s discharge accurately certificate must and adequately Secretary suggested reflect character his the to this court that opposed the case thus that, became moot. Harmon service and inasmuch as ground suggestion, upon service, the character of this as set forth controversy that record, “excellent”, was whether he in his service honorable, discharge. receive should receive an honorable August court, 17, 1956, by This order against The Board recommended Secretary’s suggestion denied the change discharge, and the Assist- mootness. Secretary approved ant that recommen- alleged derogatory dation. information concerning incorpo- Harmon which was complaint Harmon filed a in Dis- “a”, in rated Items “b” and “c” of Court, praying trict that the action of Adjutant initial notice of the General discharging him with concerned activities 1951 and 1952 discharge null, an undesirable be declared camp reported in a to be Communist- illegal void and violation of the operated, employment in 1949 in an or- Constitution, statutes, Army reg- ganization reported subversive, ulations; discharge his that be or- registration in 1952 with the American changed dered from undesirable to hon- Party, Labor cited the House Com- February 3, 1956, orable. On the Dis- being mittee as under Communist control. granted Secretary’s trict Court mo- alleged All prior these activities were summary judgment, tion for on the Army. Harmon’s induction into the Item authority that the court lacked “d” was that Harmon “Solicited contribu- granting review, compel control or money per- tions of for the defense of discharge types particular certificates sons under indictment for violation of Army.2 persons Act.” Smith Within a month after appealed. Thereafter Harmon Discharge his induction into the Board, Review in the course suggesting friends, wrote a letter to two general military person- of a review of they make a financial contribution security cases, nel reviewed Harmon’s to assist in the defense of two individuals discharge case, character of and the had who been indicted under the Smith changed general “g” from undesirable to Act. Item was that Harmon had persons honorable conditions. been “Associated with who were thereupon sympathiz- issued certificate Communists or Communist reading: response In ers.” this item Harmon D.C., Brucker, F.Supp. 2. Harmon v. Army discharges. had he ever view Indeed the nor he was not then said Party provides statute that decisions Communist

been member appearances be- boards shall final.3 Thus Har- that in the course of but argument many groups was mon’s must consti- and audiences rest fore quite grounds: possible tutional process a matter of known been due that he had acquainted law or constitu- their other with Communists some requirement sympathizers. tional he was entitled to court review of the respect In to Harmon’s given. should be Secretary says (Harmon’s) “excellent” service record was marked provides The Constitution periods for the July 24, 1953, November President shall Commander August and from Navy Chief of April 24, 1954, bal- and that Congress United States4 and that shall ance of his was marked service his record power govern for the to make rules efficiency. “unknown” as to character and regulation ment of the land and naval us, ques- As the the case is now before forces.5 Title 10 of the United States (1) de- tions are whether the court can clearly Congressional expresses Code a null action of the clare and void the Army intent the administered that be Secretary discharging Harmon with solely by the of thе executive branch Gove Discharge “General Honorable Under rnment.6 The the statute in effect at (2) Conditions” and whether the court discharge provided7 of time Harmon’s chang'e Secretary order can the Har- lawfully person, “No that enlisted induct mon’s Dis- from “General into the ed of the United charge Under Conditions” Honorable discharged States, shall be from said agree Discharge”. “Honorable We discharge, service without a of certificate Judge the District cannot that the court person enlisted shall take either of such actions. from said service before his term of serv expired, except pre has ice in the manner The nub of Harmon’s contention on the by Secretary Depart scribed the the first he is entitled that of judicial Army, Army’s ment the sentence of a review of the action. of general special (Em does not court-martial.” He discharged; contend thаt could goes phasis ours.) Throughout complaint history to the our discharge given type of him. He was ac- the Articles of War and similar statutes procedural steps corded all Secretary estab- entrusted have of War Army regulations agents granting lished for the and his of certifi discharge.8 consideration and determination cates The statute which propriety discharges Secretary from the authorized the to establish a pointed out, service. As types we have to review board and natures of specifically Army discharges specifically told provided authorities that findings present. that he had no further facts to of such a board be “final misapplied process subject No statute was to review discharge. Army”.9 or the substance of No courts The ‍​‌​‌​‌​​​​​‌‌​​‌‌‌‌​‌​‌‌‌‌​​‌​​​‌​​​‌‌‌​‌‌​​‌​​‌‍held have judicial many they statute directs or authorizes re- power times that have no 22, 3944, (Supp. 3. Act of 1956) June as 652a § Stat. [now C.A. 10 U.S. amended, (1956)]. 38 U.S.O.A. 6931i. § § 3811 C. Winthrop, Military 8. Law and Precedents II, 4. Art. § cl. 1. 547, 931, (2d 1920) ; ed. April 10, 361; Act 2 Stat. I, 5. Art. § cl. 14. (2d 1878); § Rev.Slat. Art. 4 ed. 4(b), Sec. Selective Service Act of (3956) [formerly 6. 10 § U.S.C. amended, Stat. 50 U.S.C.A. U.S.C.A. § Stat. Appendix, 454(b). § (1920), Supra amended, Stat. 809 note processes import opinion Su review the administrative Willoughby12 preme which Secretaries the President Orloff Court Army, opinions we administer the affairs of is the same as that physician has the nature inducted this doctrine extended to cited. There discharges On into Draft from the service.10 Doctors under the subject (in we said Gentila v. Act13 refused whether he to state Party. Pace:11 Be a member of the Communist cause com of this was not refusal he Congress “We think intended given missioned or of an the duties Discharge the Board’s [the applied court doctor. He to a federal ‘final’ re- Review full and Board’s] corpus subjected habeas and for a to a view should not be urged prac reviews, that it had been a uniform review, further or series and, suppose in the Congress tice courts. We to commission doctors heavy furthermore, bur- considered the his induction imposed den that would be contemplated and the Doctors Draft Act required they required to re- courts if a commission. he be findings upon view the which Supreme held that the courts Court discharges matter, As Su- based. power have no to review regard preme to a Court has said which fell within the executive duties dispute Rail- Army. the President and the The Court way Labor Act U.S.C.A. [45 observed: seq.] provides, seems the ‘intent et top “We know that from to bot- dispute plain reach its was to —the complaint tom is of the point the admin- terminal when last made, jus- often and sometimes with finding There made. istrative was tification, discrimina- there is dragging of the no out was be tion, objectiona- favoritism other controversy tribunals into other handling judges ble But of men. of North Union law.’ Switchmen’s given running are not tаsk Mediation v. National America Army. responsibility 305, Board, 297, 64 S.Ct. 320 U.S. through setting up channels 99, 95, 61.” L.Ed. 88 grievances can be considered foregoing statement is said that fairly upon settled rests not, so or Whether dictum. Congress the President of We is correct. statement we think the the United and his application States subordi- adopt it for adhere to nates. constitutes a here. (2 1956) ; 291, 2d Eliason, 434 Cir. Weeks v. United 41 Pet. 16 v. United States States, App.D.C. (D.C. ; 195, 51 (1842) F. 277 594 291, 968 L.Ed. 10 U.S. Cir.1922), Creary Ainsworth, affirmed sub nom. v. 219 U.S. v. Reaves Weeks, 336, 509, (1911), 259 42 S.Ct. 66 230, U.S. 306, L.Ed. 225 55 31 S.Ct. 973, (1922); Wyman, (D.C.Cir. L.Ed. Marshall v. App.D.C. affirming 157 28 F.Supp. (D.C.N.D.Cal.1955); 336, Weeks, 132 169 Creary ; 42 1908) U.S. v. 259 Woodring, F.Supp. (1922); Nordmann v. 28 573 French v. L.Ed. 973 66 (D.C.W.D.Okl.1939); McKenzie Kirk Weeks, L. 42 S.Ct. 66 259 patrick, F.Supp. (D.C.N.D.Cal. States, 141 49 (1922); Reid v. United Ed. 965 1956). (D.C.S.D.N.Y.1908), writ F. 469 161 dismissed, 29 S.Ct. 211 U.S. error U.S.App.D.C. 75, 77, 11. 90 193 F.2d (1909); Davis v. L.Ed. 313 53 (1951), denied, 927 certiorari App.D.C. 111 F Woodring, 72 (1952). 72 S.Ct. 96 L.Ed. 702 ; (D.C.Cir.1940) v. Hor Schustack 523 (2 1956); Nel ren, Cir. F.2d 134 12. 345 U.S. (4 Peckham, Cir. F.2d 574 son F.Supp. Herren, 1954); Bernstein F.Supp. Id., (1950), U.S.C.A.Ap- 13. 64 Stat. 826 (D.C.S.D.N.Y.1955), pendix, 454(i). affirmed F. (D.C.S.D.N.Y.1956), governed community pose appalling burden, specialized an with which cope. discipline wholly unequipped separate from courts are governmеnt Orderly re- civilian. type Harmon’s is that insistence scrup- judiciary quires asbe discharge given him must deter- legiti- interfere ulous not to mined the character of his Army matters as the mate regard pre-induc- service and without scrupulous to intervene must be events, activities, tion But etc. judicial While matters. question. not our Our to deter- occasion courts have found ought type what lawfully whether one has been mine given; it is whether a can review court within inducted and therefore discharge. and determine the jurisdiction and sub- of the says Harmon must do a court can and orders, ject have found we to its so. To reach that conclusiona number assumed has where this Court case suggested. propositions are duty one law- orders as to to revise fully in service.”14 proposition The first such con procedural process. cerns due Harmon practicalities dictate and the Reason given opрortunity reply have found rule which we alleged derogatory flowing Reason, information and the doc- cases. was then separation powers, Thereafter dic- issued of the trine given hearing many he was Discharge before the fields the administra- tates that in appealed Review Board. branch executive tive discretion leg- legislative that Board’s adverse decision to the and the discretion subject Board for Mil to inter- the Correction of be not branch islative itary Records, again In no without success. the courts. ference or review Later, pertinent appeal more connection with a direct is this doctrine field Secretary, operation important than in the was offered a sec hearing, ond for the estab- which he declined. forces. Provisions armed operation pro forces thus of such full measure of lishment rights security country Congress necessаry cedural of this afforded the to persons legislative matters, military wholly service. The very Supreme of those forces is the Court held in administration Reaves v. Ains worth; “Besides, process action. The Con- essence of executive what is due Only provides. in most so stitution of law must be determined circum judiciary interfere extreme cases can military stances. To those in the or oper- practicality As a in this area. naval service of the United States the military requires expe- forces ation military process. law is due The de instant, ditious, action and sometimes cision, therefore, military of a tribunal discipline. requires From the thus acting scope pow within the of its lawful Army easy standpoint of the it is to see ers cannot be reviewed or set aside discipline upon if effect the disastrous the courts.” discharge giv- type which could be urges Harmon Army man were not within the enlisted en an by failing violated Directive 5210.9 commanding officer or the power give hearing. litigation him a subject He was Secretary, notified on were but May 26, 1954, proposed discharge. of his and decision a court review provides opportunity The Directive wholly “an from necessities of removed present 'upon request any why As a further matter of affairs. cause separated.” standpoint not be so from the practicality, request. Later, made no of such matters would im- review as we courts pages 93-94, (1911). Wilson, And 73 S.Ct. at see 14. 345 U.S. Burns v. page 73 S.Ct. 97 L.Ed. 55 L.Ed. 15. 219 U.S. hearing out, Army he was afforded a reasonable for authorities to be- require- before security Review Board. lieve that a risk is not usable procedural many process types military ments of required due service fully , soldiers, met. of other and that factor well affect the value of the We find no of substan person and, of such consequently, process. tive due Thе consideration type discharge given him.

pre-induction frivolous, activity was not arbitrary discharge discriminatory; An or it from the is, grounds. Activity is, based as Harmon reasonable claims it a mark of dis- in the Communist involves tinction. The movement courts cannot dictate to participation dangerous give conspiracy in a it must this mark security. Surely to our to an finds, national enlisted man when it on the pre-induction compelled activities, cannot be a basis of to retain that his security presence Surely risk in in its service. the armed forces is not con- may apply military person security. President sistent with national program policies nel the same as to suggested general It is that a dis security loyalty applies which he to charge under honorable conditions im personnel positions civilian in sensitive “stigma” poses punishment. and so is in the Government civilian service.16 Punishment, said, is cannot in Harmon does not contend that he could judicial scrutiny. flicted without separated not be from service because impose punishment, can even pre-induction so, If conduct. that be punishment death, judicial without rev security if can as a discharge iew.17 Moreover the of a risk, can whether determine punishment ju is not in the sense that he is or is not risk. And process finding required. dicial guilt, is No surely that determination no data liberty no loss of are involved. The more relevant material than are penalty is the same as that which results past habits, activities and associations. many unhappy experiences. Con universally data Such material “penalties” begin sideration of such must from which a determination of charac perspective. A from civil suitability made, if ter indeed it is ian, employment pen commercial carries not the material from which it can stigma, alties in a real loss of sense— making Army, bе made. The that de pay, difficulty subsequent employment; trying termination, was find him suggest employ but no one would that an guilty guilty or not of some act of employee er cannot without trying fense. to determine his judicial scrutiny. employee A civilian of security as a risk vel character non and upon can be Government dismissed suitability consequent for serv charges ju of a criminal offense without determination, If could make that ice. it dicial review.18 The courts do inter admittedly could, upon it fere in such matters. When the same could determine whether a man basis “penalties” arise from action of any whatsoever, for service suitable it authorities, they thereby do not become among include that consideration could “punishment” necessitating judicial ac in the factors ing considered determin tion. and, of his service the value conse selecting Stigma quently, rejection of dis attaches оn from mil- charge itary security be him. Indeed, to Moreover it is aas risk. Young, Wilson, v. Cole U.S. See 17. Burns v. (1956); 861, 100 L.Ed. 1396 (1953). cf. S.Ct. 97 L.Ed. 1508 Summerfield, v. Jason 197, (D.O.Cir.1954), g., See, States, 214 F.2d ‍​‌​‌​‌​​​​​‌‌​​‌‌‌‌​‌​‌‌‌‌​​‌​​​‌​​​‌‌‌​‌‌​​‌​​‌‍e. Eberlein cer v. United denied U.S. (1921). tiorari S.Ct. 66 L.Ed. 140 L.Ed. 662 carry them promotion of entirely, tions on account rejected if one be to the President risk, over head of the being security effects adverse a may be, litigated, receiving courts, it there greater upon Gen- a than through years, upon the a course of Discharge Honorable Condi- Under eral injustice in the assertion of error or Many status attach to benefits tions. rulings decisions, such or to board’s not attach which do under the latter explicitly stigma intangibles intention have would been rejection. of And the of it declared. The embarrassment Nevertheless attach certainly either event. right service, indeed a to urged such cannot imag- it, may review, judicial detriment reject, may without registered security serv- ined.” risk one аs a ice. margin an “Hon- is a There of value suggested dis- is It Discharge” Dis- over orable charge a “General charge great man a is value of so Conditions”. Under Honorable only if be afforded be denied one can of value aBut considerable measure right judicial to that hold to review. To job, such involved a Government dis- to the whole effect would be vitiate Cravens,21 involved in Williams charge process provided the Secre- rights contractor, in the authority tary.19 to courts The v. Domestic involved in Larson as were arrogate They cannot take such action. utility Foreign public Corp.,22and & in a authority supervisory over to themselves business, in Kansas such as was involved Army. point Apt is another on this Light City Company Mc- Power & Ainsworth, su- quotation from Reaves Supreme Kay.23 Yet in all instances these pra. said: Court rights deprived of holders without court review. them power re- have no “The cоurts not the view. The courts are suggested that the consideration government. instrumentalities happenings pre-induction is in conflict regulate They Army. command or policies cannot traditional army. promoted or to be certainly To be Most we cannot order right practices. of an of- retired be the adhere traditional ficer, many his commis- value to him of new forces in 1953-54 faced armed problems sion, greater operation but even than not involved in the 1770’s, country, and, it services of the the welfare of the may 186Q’s, through safety, or even be, the early its even * * * Activity

efficiency army. in the Communist 1940’s. If possible con- movement now involves had intention of been the Con- dangerous participation gress spiratorial give right to an officer the country. The efforts of this issues and raise controversies parts to infiltrate all movement elements, with the board physical pose problems, new the Government mental, qualifica- of his U.S.App.D.C. 380, 210 F.2d 874 Stevens, 21. 93 19. On T. March Robert (D.C.Cir.1954), certiorari Army, denied Wil then of told the Sen- Robbins, U.S. 75 S.Ct. liams ate Armed Services Committee: “When (1954). 99 L.Ed. the evidence fails to that he show is dis- loyal, subversive, or is hut does establish US. 69 S.Ct. 22. 387 L.Ed. security that he is otherwise a risk (1949). eliminated, separated should be un- conditions, usually der honorable with a U.S.App.D.C. 273, 225 F.2d 23. 96 general discharge.” Hearings on S. (D.C.Cir.1955), denied certiorari 350 U. Cong., 2d Sess. 75. S. page page 306, 20. 219 at 31 S.Ct. at Judge BAZELON, (dissent- which rules and must with new Circuit be met ing). regulations. Appellant youth plucked is a who argues pre-induction soldier, out of civilian life and made a po- Army by events considered many others, threshold validly opinions litical could not and so planning career he Be- for himself. First- Amend- considered under service, fore the end of his term of ment. Activity was hung status, in the world Communist restored to his civilian but long passed about his neck was the millstone has since movement “security of Army risk.” The has in- opinion. political boundaries It of mere formation about his civilian activities and associations may and, security risk, well make a man a on the basis out, we have courts can- it believes it would not be in the national compel Army not in its to retain soldier, interest him retain as a but security service a risk. service is admitted been “excellent” and he is not claimed second of We come now to the illegal anything reprehen- to have done prayers, Harmon’s direct court that the during duty. sible his tour He does the issuance to him of an dis challenge the discretion of the Secre- charge. beyond question is settled tary judge whether the by that the courts man will direct dismissing national is served any damus action which lies executive only complains that, a soldier. He within the realm executive discreti discretion, exercise there is nei- inflicting necessity authority quite apart on.*24 ther This is a rulе of law nor gratuitous him a wound which peculiar from the insulation of plague days. him all the of his rest judicial scrutiny. affairs from Har Appellant was inducted into prayer mon’s court direct the that the on October February 9, 1954, as a draftee. On issuance to him an honorable dis Adjutant General charge certainly prayer for manda informed him mus, certainly Congress has “derogatory” received had information lodged within the area executive dis reply about him and ordered him to types cretion the selection of dis writing replied thereto. on March charges given military personnel. 11,1954. April 2,1954, Adjutant On prayer complaint So Harmon’s acting Army, General of the order of jurisdiction does not lie within the appellee, appellant that, upon informed general applica the court under the rule derogatory review of the information types to all ble of executive action. Even replies appellant’s thereto, it had mandatory prayer if direction been determined that would not ran to a civilian matter which had AR 615-370 as dis loyal subversive, none of the elements of a but would af be retained grade completion fair, in his authority until courts would have no serv period, ice at which time he would re respect to it. discharge “appropriate ceive a to the Affirmed. character of service” he had rendered.1 McKay, Anderson v. governed entirely record, the service (D.C.Cir.1954), 11, 211 F.2d 798 certio disqualification absent some covered rari denied ‍​‌​‌​‌​​​​​‌‌​​‌‌‌‌​‌​‌‌‌‌​​‌​​​‌​​​‌‌‌​‌‌​​‌​​‌‍348 U.S. regulation. specific Thus, though a less (1954). See discussion L.Ed. 660 and discharge than honorable certificate can County, cited Clackamas Or. v. cases given drug homosexual, addict, to a a be McKay, 10S, 219 F. alcoholic, shirker, a a chronic habitual (D.C.Cir.1954). 2d 479 person psychopathic personalty, a with comported repeated petty (AR the a This with traditional offender 635- Army policy discharge 208, formerly 615-368); that the be AR to a de- discharge Secretary Defense void and undesirable was days later, Five the 5210.9, changed pur honorable order that be to an it promulgated his Directive summary personnel the for Cross-motions porting apply to to judgment program, security were made. District criteria the civilian 1953, concluding jurisdic- 27, Court, April 10450, that it lacked Executive Order appellant’s cause, dis mo- tion of Fed.Reg. authorize the denied 2489, and to security summary judgment if risk tion and entered as a soldier missal a against appeal it him. followed. This information “on all the available is [not] retention that Army determined [his] derogatory information the interests clearly the with consistent appellant had he had been about was that May security.” On national employed a “reported was to be at what appellant com to let the determination operated camp”; Communist that had he was and plete his was reversed service employed by been the Detroit Urban given an “un he would be informed that League, “reported or- to a subversive discharge 615-370 AR under desirable” “regis- ganization”; he had once that pe expiration his service prior the City to tered to New York with vote * * * such he received riod. On June Party cited American Labor discharge.2 a by Un-American House Committee on unsuccessfully being sought Activities as under Communist Appellant * * * ”; changed “honora- control that had solicit- have his Army Dis- ble,” by appeal ed contributions for the defense Smith first turn, defendants; then, prosecution Act fa- charge and his Board Review reported Mil- Army ther was a Communist Board of Correction to the Secretary organizations itary connected with various Records Attorney Having possible ad- all Army. cited as subversivе Gen- exhausted registered many remedies, he commenced eral and to have times ministrative seeking Party; his his declaration that Labor a with American this suit serter, has entered Par. wiio feeted.” YHI-F-6. Juno On solidier a fraud, Army convicted one who is when un- 635-206, specific (AR discharge, civil court desirable there in a of crime security 615-366); dealing formerly one who or to directive AR AR investigation 615-370, dis- which was cited risks. is “determined separation authority report (AR as loyal for or subversive” Regs. discharge, by Special permits implemented 600-220- an undesirable discharge only fault, 1) an hon- ; is no determination that where there “disloyal if called for soldier is or subversive.” the No such orable having been rated at been has made conduct determination soldier’s efficiency regarding appellant, “good” at not AR 615-370 was in- than less 8). 635-200, par. appellee (AR applicable. Indeed, asserts “fair” less than mistake, Stevens the real it was basis cited Former appellant’s discharge being Committee: Directive a Senate told policy has 5210.9 itself. “The traditional discharge given re- been Discharge By the time the Re- In other rendered. service flect appellant’s discharge view Board reviewed words, been man whose conduct has April 11, upgraded during the time in honest faithful the “General,” already pro- had separa- entitled to would be specific Security mulgated “Personnel its conditions, notwith- under tion regulations, 604-10, July AR Clearance” standing conduct what his regulations But those new entering prior the service.” been separation cited in corrected re- Hearings, Services Com- Senate Armed authority port as for the action. The Cong., Sess., 2d on S. mittee authority only additional cited 1954, p. March new action “Sec. P.L. 346” provides merely provision 5210.9 Directive which for review 2. Defense report procedure. separation (1944), of a soldier dis- Stat. 286 charged risk “will 693h. Thus the cite as U.S.C.A. for basis appropriate appellant’s discharge authority Armed Service remains De- separation is ef- fense Directive 5210.9. directive step-mother registered had with the answer, been “excellent.” In his first Party American years; July Labor for ten about filed appellee admitted this allegation. and that he associated with Com- On November how- sympathizers.3 munists or Communist ever, by answer, amended out he reply In his written of March that July for about a week in and appellant employment admitted summer period for ly April 24,1954 (short- after camp kitchen-helper as a as- and ordered) ap- before his was sistant breakfast cook and the Urban pellant’s rating was recorded as “un- League camp as a for counselor its But, Army regulations, known.” under under-privileged negro children. Con- “ratings ratings of ‘unknown’ and for cerning registration with the American periods of less than two months are Party, Labor he had admitted it when ” 6 ‘disqualifying.’ interrogated May 1953,4 first and now only that, legally added Appellant since it was a alleged also that he was not recognized political party, felt he he and had never been a member of the properly Similarly, could vote for it. he Party, any Communist or or- Communist soliciting had earlier admitted funds ganization, any organization or advocat- indictees, the defense of two Smith Act ing government overthrow of ad- or merely and now added that he felt he vocating approving deny- or violence in right had a to do so. He denied he that ing any rights, others constitutional was or had ever been a member of the organization seeking to alter our form Party, Communist said that it but government by unconstitutional possible that had known or been ac- he means, any organization which, so quainted sympa- with Communists or knew, engagеd far as he had ever in sub- allegations concerning thizers. The alleged versive activities. He also that parents to, reply refused he as he had always “completely he was and had been interrogation. at his earlier The District unswervingly loyal to the Govern- opinion in continuing Court noted its that “Save ment of the United States” and he that plaintiff’s association with parents writing lay “would not his questing and for hesitate to one letter re- down his life legal contribution for the against de- in defense of the United States persons fense two indicted under the any and all of its enemies whomsoever.” charges against Act, plaintiff Smith all Appellee allegations, denied these not on antedating were on conduct based that he believed them to be Army.” into the induction knowledge untrue but because of “lack of alleged appellant complaint, In his and information sufficient to form a be- efficiеncy ratings had concerning his character lief” them. May 7, 1953, Army, lege without re- On apprehension as a result fear derogatory ap- vealing information growing out of the circumstances pellant, interrogation used it as the basis for inter- and the fact appel- rogating him. On that occasion n without counsel. questions as to that he or had lant denied ever been privilege which he had invoked the any or a put again member of sub- a Communist February 9, 1954, himto gave organization, some details versive them, except order and he answered all of concerning persons whom relating about he was parents. those to his As asked, described the circumstances under those, privi- his refusal was based not on solicited funds for the which he defense lege, indignity but rather “moral Act, [sio],” § Smith U.S.C.A. piety,” “filial and the assertion sundry gave defendants, other in- they were irrelevant. respect With to a number formation. questiоns, privilege invoked his Supra note 3. the Fifth Amendment under of the Uniform Code Article 31 tary of Mili- Brucker, D.C.D.C.1956, 5. Harmon v. U.S.C.A, Justice, 64 Stat. F.Supp. 475, 476. 602, against self-incrimination. He later privi- explained par. had invoked his 6. AR 8b. they por- vastly we view are different. Appellee’s that first contention holding population question tion of our wheth- honorable should not reach the even discharge correctly declined from the armed certificates er the District Court that, great services is jurisdiction. us after that an adverse informs now so reflection is certificate inherent a Adjutant filed, appeal Gen- this which is other “honorable.” This than appellant the character eral that notified is, course, of confirmed the statement discharge upgraded from of his had been argument appellee’s of counsel in oral (under hon- “undesirable” to “General “every gets that honorable dis- soldier an conditions)” he asserts that orable charge unless blemish on there is some longer judicially is, therefore, a there no his record on which receives account of controversy.7 cognizable This case discharge a other than honorable.” however, discharge, new form of discharge Nor is the de new form of legal equivalent dis- the charge of the honorable separa fensible on sought. appellant report indicate tion on its face does not states, may be, appellee It well security consid it was based on available dis- of none charged the benefits could erations. The same observation under federal law soldiers concerning made “undesirable” dis holder such a withdrawn from the “general” discharge charge. instances, however, In a both Many bene- as this. person sufficiently interested check however, by conferred, stat- fits are regulations army would discovеr “se York, ap- utes of the State New where curity” In character of the resides, pellant and those statutes all use discharge, the case “undesirable” language discharge” or “honorable security was the reference to ci “honorably discharged.” Although the reg “disloyal tation or subversive” New York have not decided wheth- courts ulation, 615-370, AR “Reason discharge a er excludes holders of en- this Authority separa Separation.” (under report accompanying titled “General tions),” condi- tion the “General” Judge Frank the late “Para. AR recited that regulation applies.” Appeals 615-120 This Court suggested for the Second Circuit according cited, appellee, “to inform it But that would.8 whatever recruiting officers in legal equiva- be said of the technical Regular eligible for enlistment types lence or difference between two Army.” anyone may discover, As discharge, pоint from a real-life McK.Consol.Laws, Law 32.” expresses specific § c. majority opin- 7. The Herren, Cir.1956, Schustack 234 F. seem, ion as to would tills contention. 135 n. however, majority proceeds since the deal with the District Supreme 9. What Court said in Wie- rejected jurisdiction, Court’s Updegraff, 1952, man v. longer judi- contention that there is no a 190-191, cognizable cially controversy. case or concerning employee an disloyalty grounds think, is, we “Although Discharge (Un- a General inapplicable here: Conditions) apparently der Honorable en- dispute “There can be no about most, all, titles a if not veteran to bene- consequences person visited ex- law, fits under federal the statutes of public employment cluded on dis- plaintiff York, New dent, of which is a resi- loyalty grounds. In the view of requires [sic} that a veteran community, deep one; the stain is in- Discharge Honorable in order to deed, badge infamy. it has become eligible for various benefits under Especially is in time this so of cold war gee g. Military state e. York law. New begins and hot emotions when ‘each man McK.Consol.Laws, Law c. §§ ” eye neighbor possible enemy.’ aas 250; Municipal Law, New York General 148; McK.Consol.Laws, Compare, Bailey connection, c. § New in this Law, McK.Consol.Laws, York Richardson, U.S.App.D.C. 248, Education 86 46, 55-56, 16, 609; c. New York General Business F.2d affirmed 626 604-10, charge paragraph is a reference not be revised AR Review Board shall to 15d, page provides: U.S.App.D.C. a court.” 90 at Although 77, page the 193 F.2d at 927. applicant appointed “No will be recognized in District Court the specific ap- or enlisted the without law, it questions stant case involved proval Secretary of of the the controlling thought nevertheless Gentila separation previous if his serv- in cases also the that both ice indicates that he relieved findings upon volve “a review of the duty ei- from active * * separation which the was based security rea- ther as a risk or for D.C.D.C.1956,137 Brucker, F. v. security un- sons other while than Supp. 475, the District In this dergoing investigation the “findings wrong. Court was regulations provisions ofor of these separation present the which the [in regulations security corresponding challenged at was based” are not case] depart- issued the other Indeed, majority opinion all. the applies ments. AR respect 615-120 challenge points out, appellant not does the to former members of appellee’s power him from the to remove seeking armed enlistment services suspicion is that he on mere Army.” reenlistment in security But, a not risk.11 whether or Department See Directive also Defense security justify interests of national the dismissing 5210.9,par. II. suspicion, a soldier on mere ap jurisdiction entertain the Our claims that those interests being question pеal unimpaired, next by branding not served such soldier ruling to consider is Court’s the District through passes a gate.12 risk as he that, in v. under our decision Gentila raises is issue one he Pace, 1951, U.S.App.D.C. 75, F. appellee may an whether withhold law: 924, it was to disclaim

2d “constrained” discharge from a soldier whose honorable jurisdiction of cause. ratings efficiency never conduct and assuming “excellent,” less than even been “Stripped of and le- self-contradiction gal of the information conclusions, the correctness all all that com- [Gentila’s] being upon. allege appellee relies That claim plaint was that dishonor- [d]” upon “wholly dependent upon for desertion rested able finding he jurisdiction law,” erroneous fact” “an it within the is forming mentally capable in- an Court. United States v. District liams, Wil “merely 1929, 255, 257-58, desert. held tent to We findings 314; 98, fact Dis- 97, Note, erroneous 73 L.Ed. S.Ct. 1951, equally Court, suspects. divided 341 U.S. an There no Government is 1352, why in which in the reason Constitution Pres- sustaining validity training Govern- not ident should limit staff loyalty program, employee loyalty beyond persons civilian ment’s whose is suspicion.” “mere dismissal from out that we shadow of ‍​‌​‌​‌​​​​​‌‌​​‌‌‌‌​‌​‌‌‌‌​​‌​​​‌​​​‌‌‌​‌‌​​‌​​‌‍faintest punish- service” not the Government in the of a civilian Even case Govern- position permanent pro- ment sense employee, sought ment who scription from Government service had holds, being drafted, rather he though than al- Lovett, States held to be in United v. been said we that “mere dismissal” punishment and that there is no re- L.Ed. 1252. injury process “in the dress suffered Bailey Richardson, supra dismissal,” recognized authority we 11. Cf. note page U.S.App.D.C. gratuitous injury at 182 F. inflict over and above page Bailey Richardson, 61: at “The Constitution does dismissal. require supra pages the President continue note training pages 55-56, to use personnel, Government 182 F.2d at performed the work person appellant, loyalty whose void, Noth him an order that 539-40 Harv.L.Rev. ing my supra, not, Pace, does Gentila accept as set contrary. view, I deprive ju- Nor can Court District Supreme (either by this court or tled If, upon review, risdiction. dis- Court) in circum that courts charge given appellant is declared issuance review the stances like these void, we must assume As a less than discharge would void. issue a which is not Herren, 2 v. out in Schustack Denby Moreover, Berry, supra. if the 1, 134, Cir., 1956, note 234 F.2d District of an hon- Court finds the denial spoken yet Supreme has “The Court discharge legally orable insuf- to rest on to what of ‘whether on the enjoin grounds, may, least, ficient it power to review the courts have extent a denial for Elg, 1939, such reasons. Perkins Department’3 action or control the War 325, 307 U.S. fixing certifi 884, 1320; S.Ct. Shachtman omit issued to soldiers [footnote cates 294, Dulles, 1955, U.S.App.D.C. 287, ** Lamb, 329 Patterson v. ted] 225 F.2d 539, 542, 91 L. Supreme footnote, In Ed. 485.” parties request Both that we decide thе authorities, among referred, other Court controversy namely, merits of — Denby v. of this court decision Training Military whether the Universal App.D.C. F. Berry, and Service Act of 62 Stat. grounds, on other reversed U.S.C.A.Appendix, 454(b),14 pur- L.Ed. 148. suant to which Directive 5210.9 was “void and without we held In authority case promulgated, of less authorizes issuance thought law” what we discharge” than an certifi- “honorable comport with did not cate, in of this case. the circumstances statutory procedure.13 Davis v. See also Court I think that since the District 83, 85, But 1940, U.S.App.D.C. Woodring, of the mer- reached consideration never 111 F.2d practice requires judicial its, sound seeks, in addition That opportunity have that discharge given first a declaration that sets the draftee’s term of statute 14. the Su- was reversed decision Our years, “unless sooner re- at two preme that what Court transferred, leased, ac- actually discharge was we considered prescribed by procedures cordance merely inac- active to a transfer * * Secretary of Defense wholly something status, within tive the commander-in-chief. discretion

Case Details

Case Name: John H. Harmon, III v. Wilber M. Brucker, Individually and as Secretary of the Department of the Army

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jan 31, 1957

Citation: 243 F.2d 613

Docket Number: 13230

Court Abbreviation: D.C. Cir.