Waller v. United States, No. 392-70

No. 392-70 | Ct. Cl. | Jun 16, 1972

Per Curiam :

This case was referred to Trial Commissioner Mastín G. White with directions to make findings of fact and recommendation for conclusions of law under the order of reference and Eule 134(h). The commissioner has done so in an opinion and report filed on March 14,1972. Plaintiff has filed no exceptions to or brief on this report and the time for so filing pursuant to the Buies of the court has expired. On May 1,1972, defendant filed a motion for judgment, moving that the court adopt the commissioner’s opinion, findings of fact and recommended conclusion of law as the basis for its judgment in the case. Since the court agrees with the commissioner’s opinion, findings of fact and recommended conclusion of law, as hereinafter set forth, it hereby adopts the same as the basis for its judgment in this case without oral argument. Therefore, plaintiff is not entitled to recover and the petition is dismissed.

OPINION OE COMMISSIONER

White, Oommissioner: The plaintiff, a career airman in the Air Force, was honorably discharged effective November 13,1964,¹ after having served in the Air Force for a total of 18 years, 4 months, and 23 days. The discharge of November 13, 1964, was accomplished by the Air Force administratively, and contrary to the wishes of the plaintiff, at a time when the plaintiff still had 1 year, 7 months, and 18 days to serve under his final enlistment, which was for a 5-year term that began on July 2,1961.

In the present action, the plaintiff seeks (as a minimum recovery) “a sum of money equal to the amount of pay and allowances he would have been entitled to had he remained a member of the United States Air Force from the date of his discharge until the end of his then current enlistment * *

It is my opinion that the plaintiff is not entitled to recover.

The plaintiff’s difficulties with the Air Force began in May of 1964, when he was stationed at Bergstrom Air Force Base, Travis County, Texas. On May 13, 1964, the plaintiff was taken into custody by a Travis County Deputy Sheriff after he had been accused of having exposed himself indecently in the sight of two women, Mrs. Annie Mae Brown and Mrs. Ethel Walker, while they were fishing in the Colorado Eiver at a point near the bridge which carries Highway 973 across the river.

The deputy sheriff interrogated the plaintiff while he was under arrest and obtained from him a written statement which contained the following incriminating admission:

* * * Previous to today I have been fishing on the Colorado River near the bridge on Highway 973 between Hwy 71 and Manor, Texas. Several times while here I saw a colored woman or colored women on the opposite bank of the river. On numerous occasions I have stripped off ail my clothing and exhibited myself to them. Several times I shook my penis at them. The woman or women always ignored this, apparently and kept fishing. I suppose I have done this 10 times in the past iy2 years. * * *

The Travis County Sheriff’s Department also took written statements in affidavit form from Mrs. Annie Mae Brown and Mrs. Ethel Walker concerning the plaintiff’s conduct.² According to Mrs. Brown’s affidavit, the plaintiff had indecently exposed himself in her sight on several occasions when she had been fishing near the Highway 973 bridge across the Colorado River.

The Travis County authorities did not prosecute the plaintiff for the alleged offense of indecent exposure. However, they informed the military authorities at Bergstrom Air Force Base regarding the complaint that had been made against the plaintiff, and they turned over to the military authorities the written statements that were taken from the plaintiff and from the other persons who were present at the scene of the alleged offense on May 13,1964.

Subsequently, in October 1964, the plaintiff’s unit commander instituted against him administrative proceedings to determine whether the plaintiff should be separated from the Air Force under the provisions of paragraph 4b of Air Force Regulation 39-17. That regulation prescribed a procedure, which included a hearing before a board of officers, for the discharge of airmen because of unfitness. Paragraph 4b of AFR 39-17 provided in part that an airman was subject to discharge under the regulation for “Sexual perversion, including but not limited to * * * (4) indecent exposure * *

A bearing relative to the plaintiff’s case was beld before a board of officers at Bergstrom Air Force Base on. October 21, 1964. An Air Force officer represented the plaintiff as counsel, in accordance with the plaintiff’s previously expressed wish. The written statements which the Travis County Sheriff’s Department had taken from the plaintiff and from Mrs. Annie Mae Brown were received in evidence by the board of officers, along with other documentary exhibits and oral testimony from the plaintiff and from a number of other witnesses who testified in behalf of the plaintiff.

In his testimony before the board of officers, the plaintiff, in effect, admitted the wrongdoing of which he had been accused, but he expressed a strong desire to remain in the military service. The plaintiff justified his request for retention in the service on the basis of his more than 18 years of service and his previous excellent record. A number of members of the Air Force also testified in support of the plaintiff’s request that he be retained in the military service'. Such testimony emphasized the plaintiff’s high technical qualifications, his excellent record, and his value to the military service.

At the conclusion of the hearing, the board of officers found (on the basis of the plaintiff’s written admission, as supplemented by Mrs. Brown’s affidavit and the plaintiff’s oral admission before the board) that the plaintiff had indecently exposed himself on 10 occasions during the preceding iy2 years. The board concluded that such actions were manifestations of a personality disorder under paragraph 4b of Air Force Begulation 39-16; and the board recommended that the plaintiff be discharged from the service because of unsuitability under the provisions of AFB 39-16.

Air Force Begulation 39-16, referred to in the decision of the board of officers, prescribed a procedure (which included a hearing before a board of officers) for the discharge of airmen on the ground of unsuitability. Paragraph 4b of that regulation stated in part that an airman was subject to discharge for unsuitability when one or more of the following conditions existed:

Character and behavior disorders, * * * and transient personality disorders due to acute or special stress * * *.

The administrative proceedings ultimately resulted in the plaintiff being discharged by the Air Force for unsuitability effective November 13, 1964, under Air Force Regulation 39-16.³

The plaintiff contends in the present action that he was illegally discharged from the Air Force because of the introduction in evidence against him of (1) the self-incriminating statement which the Travis County Deputy Sheriff obtained from him, and (2) the affidavit which the Travis County Sheriff’s Department obtained from Mrs. Annie Mae Brown.

Before considering the specific grounds of illegality referred to in the preceding paragraph, it may appropriately be noted that an enlisted man in the military service does not have a contractual right to remain in the service until the expiration of his enlistment term. Birt v. United States, 180 Ct. Cl. 910" court="Ct. Cl." date_filed="1967-07-20" href="https://app.midpage.ai/document/birt-v-united-states-8593690?utm_source=webapp" opinion_id="8593690">180 Ct. Cl. 910, 913 (1967); Keef v. United States, 185 Ct. Cl. 454" court="Ct. Cl." date_filed="1968-10-18" href="https://app.midpage.ai/document/keef-v-united-states-8593923?utm_source=webapp" opinion_id="8593923">185 Ct. Cl. 454, 471 (1968). On the other hand, an administrative discharge issued to a serviceman prior to the expiration of his enlistment term is void if it exceeds applicable statutory authority, or ignores pertinent procedural regulations, or violates minimum concepts of basic fairness. Birt v. United States, supra, 180 Ct. Cl. at p. 913; Keef v. United States, supra, 185 Ct. Cl. at p. 461.

The Plaintiff’s Self-Incriminating Statement

Following the complaint that the plaintiff had indecently exposed himself in the sight of Mrs. Annie Mae Brown and Mrs. Ethel Walker on May 13, 1964, the plaintiff was taken into custody by a Travis County Deputy Sheriff and was transported from the scene of the alleged offense to the sheriff’s office in the county courthouse, arriving there sometime between 12:00 noon and 12:30 p.m. on May 13. The deputy sheriff then interrogated the plaintiff for several hours. During the course of the interrogation, the plaintiff on three or four occasions requested permission to call an attorney, and was told that he might do so at a later time. On the basis of the interrogation, the deputy sheriff prepared a written statement, which the plaintiff signed in the late afternoon. The self-incriminating portion of this statement has been quoted previously in the opinion. After the plaintiff signed the statement, he was permitted to call an attorney on the telephone; and he telephoned an attorney-bondsman, who posted bond for the plaintiff and secured his release from custody.

Under the circumstances, the refusal of the deputy sheriff to permit the plaintiff to consult an attorney during the course of the interrogation would have made the self-incriminating statement which the deputy sheriff obtained from the plaintiff inadmissible in evidence against the plaintiff if the Travis County authorities had subsequently instituted a criminal prosecution against the plaintiff. The requirement in the Sixth Amendment to the Constitution that “In all criminal prosecutions, the accused shall enjoy the right * * * to have the assistance of counsel for his defense” is made applicable to the States and their political subdivisions by the Fourteenth Amendment to the Constitution, and it is effective in a situation where a person is being interrogated while in custody for the alleged commission of a criminal offense. Escobedo v. Illinois, 318 U.S. 478 (1964).

It is not necessary, however, for the court to determine whether the board of officers, in conducting the administrative hearing relative to the possible discharge of the plaintiff from the military service, was obligated to apply the same test of admissibility with respect to the plaintiff’s self-incriminating statement that would have been required at a criminal trial of the plaintiff for the alleged offense of indecent exposure. The reason is that the plaintiff’s present contention concerning the inadmissibility of his written statement in the administrative proceedings before the board of officers has been interposed too late.

At the outset of the hearing before the board of officers, the recorder of the board offered in evidence a number of documentary exhibits, including the written statements which the Travis County Sheriff’s Department had taken from the plaintiff and from Mrs. Annie Mae Brown. The plaintiff stated to the board (through his counsel) that there was no objection to such documents being received in evidence by the board, with the exception of Mrs. Brown’s affidavit (winch will be discussed subsequently in this opinion) . The plaintiff having consented to the admission of his self-incriminating statement, it was received in evidence by the board of officers. Thus, any objection which the plaintiff might otherwise have made against the admission of his statement was effectively waived by his consent to its admission (I J. TI. Wigmore, Evidence § 18(D) (3d ed. 1940)); and his present collateral attack against the legality of his discharge from the Air Force on the ground that his self-incriminating statement was inadmissible in evidence before the board of officers comes too late.

Mrs. Annie Mae Brown's Affidavit

As previously indicated in this opinion, the recorder of the board of officers offered in evidence, at the outset of the hearing before the board relative to the plaintiff’s case, the affidavit which the Travis County Sheriff’s Department had obtained from Mrs. Annie Mae Brown, and in which Mrs. Brown stated that the plaintiff had indecently exposed himself in her sight on several occasions when she had been fishing near the Highway 973 bridge across the Colorado Fiver. The plaintiff (through his counsel) objected to the admission of Mrs. Brown’s affidavit on the ground of the lack of any opportunity to cross-examine her, and that her statement was prejudicial to the interests of the plaintiff. The board’s legal advisor inquired whether the plaintiff desired that Mrs. Brown be called to testify before the board in person, to which a negative answer was given. The objection to the admission of Mrs. Brown’s affidavit was then overruled, and the affidavit was admitted in evidence by the -board.

Because of its hearsay character and the absence of any showing of circumstances bringing Mrs. Brown’s affidavit within some exception to the general rule of evidence excluding hearsay, the affidavit would not have been admissible in evidence at a trial before a court bound by the common law rules of evidence (VI J. H. Wigmore, Evidence § 1709 (3d ed. 1940)). However, tbe 'admission of Mrs. Brown’s affidavit in evidence at the hearing before the board of officers did not contravene the rules promulgated by the Air Force to govern such administrative proceedings. Paragraph 13a of AFR 39-17 (under which the proceedings against the plaintiff were instituted) and paragraph 15a of AFR 39-16 (under which the proceedings were concluded) both provided in identical language that:

* * * Strict rules of evidence need not be followed, but reasonable bounds of relevancy, competency, and materiality will be maintained. * * *

No constitutional or statutory provision has been cited by the plaintiff — and none is otherwise known — that would cast doubt on the authority of the Air Force to relieve its boards in discharge proceedings from the necessity of strict adherence to the common law rules of evidence. Consequently, the circumstance that the board of officers, at the hearing on the plaintiff’s case, received hearsay evidence in the form of Mrs. Annie Mae Brown’s affidavit over the plaintiff’s objection does not provide a valid basis for the plaintiff’s attack on the legality of his administrative discharge from the Air Force at the conclusion of the proceedings before the board of officers.

Furthermore, it is difficult to perceive how the admission of Mrs. Brown’s affidavit in evidence substantially prejudiced the plaintiff’s interests, since Mrs. Brown’s affidavit merely corroborated the plaintiff’s own self-incriminating statement, which was received in evidence by the board of officers with the plaintiff’s consent.

Conclusion

As the plaintiff has failed to establish that his administrative discharge from the Air Force prior to the expiration of his last enlistment term exceeded applicable statutory authority, or ignored pertinent procedural regulations, or violated minimum concepts of basic fairness, the legality of the discharge must be upheld in the present judicial proceedings. This requires the dismissal of the petition.

FindxNgs OK Fact

1. (a) The plaintiff was bom in Portland, Oregon, on October 19, 1927.

(b) After graduating from high school, the plaintiff entered the U.S. Merchant Marine during the latter part of World War II.

(c) On April 25, 1946, when the plaintiff was 18 years of age, he enlisted in the United States Air Force. The plain-* tiff thereafter served in the Air Force as an enlisted man for a total of 18 years, 4 months, and 28 days, as indicated in subsequent findings.

(d) The plaintiff was married in December 1952. He and his wife subsequently became the parents of four daughters, who were born in about the years 1954,1956,1958, and 1962.

2. (a) As previously indicated in finding 1(c), the plaintiff enlisted in the United States Air Force on April 25,1946. He was promoted to Private First Class on March 13, 1947, to Corporal on July 1,1948, and to Sergeant on February 1, 1949. The plaintiff was honorably discharged from this enlistment on April 24,1949.

(b) After being in civilian life for approximately 2 months, the plaintiff enlisted in the Air Force again on June 21, 1949, in the grade of Sergeant. He was promoted to Staff Sergeant on December 19, 1950. The plaintiff was honorably discharged from this enlistment on June 21,1951.

(c) Without a break in service, the plaintiff reenlisted in the Air Force on June 22,1951, in the grade of Staff Sergeant. He was promoted to Technical Sergeant on June 18, 1953. The plaintiff was honorably discharged from this enlistment on July 1,1955.

(d) Without a break in service, the plaintiff reenlisted in the Air Force on July 2,1955, in the grade of Technical Sergeant. He continued in this same grade until he was honorably discharged from the 1955 enlistment on July 1, 1961.

(e) Without a break in service, the plaintiff reenlisted in the Air Force for a 5-year term on July 2, 1961, in the grade of Technical Sergeant. He continued to serve in this grade until 1964, when the events occurred that gave rise to the present litigation.

(f) Up until May 1964, the plaintiff had an excellent and unblemished record in the Air Force. The Airman Performance Keports that were prepared relative to the plaintiff during his last enlistment characterized him variously as “an exceptional airman of great value to the service,” as “an excellent airman,” and as an “outstanding” airman.

3. (a) In 1964, at the time of the happening of the events which gave rise to the present litigation, the plaintiff was assigned to the Headquarters Squadron Section, 340th Combat Support Group, 340th Bombardment Wing, Second Air Force, Strategic Air Command; and he was stationed at Bergstrom Air Force Base, Texas. The plaintiff was working as a Flight Simulator Technician and Team Chief in the Mobile Simulator Program.

(b) Bergstrom Air Force Base is located in Travis County Texas, and near Austin, Texas, which is the county seat of Travis County and also the State Capital of Texas. The Colorado River is in the vicinity of the base.

4. (a) During an off-duty period in the morning of May 13, 1964, the plaintiff went to the Colorado River, in the vicinity of Bergstrom Air Force Base, for the purpose of fishing. He had fished in that same neighborhood on previous occasions. At about 11:00 a.m. on May 13, while the plaintiff was fishing from the river bank near the bridge which carries Highway 973 across the Colorado River, and two women (Mrs. Annie Mae Brown and Mrs. Ethel Walker) were fishing on the opposite side of the river and slightly upstream from the plaintiff, the plaintiff was arrested by two patrolmen of the Texas Highway Patrol for the alleged offense of having indecently exposed himself in the sight of the two women previously mentioned. The arrest was made because, as the highway patrolmen had been traveling in a patrol car along Highway 973 a short time previously, they had been hailed at a point near the bridge across the Colorado River by a man named Wesley S. Sims, Jr., who reported to the patrolmen that a man (indicating the plaintiff) had been exposing himself in the sight of Sims and of two women (Mrs. Brown and Mrs. Walker).

(b) Immediately after the highway patrolmen arrested the plaintiff, they took him across the bridge to the opposite side of the river, where Wesley Sims, Mrs. Brown, and Mrs. Walker confronted the plaintiff and accused him of having indecently exposed himself. The highway patrolmen then communicated by radio with the office of the Travis County Sheriff in Austin, Texas. Deputy Sheriff Leffingwell soon came to the site, and the highway patrolmen then turned the plaintiff over to the deputy sheriff.

(c) Deputy Sheriff Leffingwell took the plaintiff to the sheriff’s office in the county courthouse, arriving there between 12 noon and 12:30 p.m. Thereafter, Deputy Sheriff Leffingwell interrogated the plaintiff for several hours. During the course of the interrogation, the plaintiff on three or four occasions requested permission to call an attorney, and was told that he might do so at a later time. On the basis of the interrogation, Deputy Sheriff Leffingwell prepared a written statement, which the plaintiff signed in the late afternoon. This statement declared in part as follows:

* * * Previous to today I have been fishing on the Colorado Eiver near the bridge on Highway 973 between Hwy 71 and Manor, Texas. Several times while here I saw a colored woman or colored women on the opposite bank of the river. On numerous occasions I have stripped off all my clothing and exhibited myself to them. Several times I shook my penis at them. The woman or women always ignored this, apparently and kept fishing. I suppose I have done this 10 times in the past 1% years. * * *

(d) After the plaintiff signed the statement referred to in paragraph (c) of this finding, he was permitted to call an attorney on the telephone. The plaintiff telephoned an attorney-bondsman named Holt, who posted bond for the plaintiff and secured his release from custody. The plaintiff then returned to Bergstrom Air Force Base.

5. (a) In addition to taking a written statement from the plaintiff, the Travis County Sheriff’s Department also took written statements in the form of affidavits from Wesley S. Sims, Jr., Mrs. Annie Mae Brown, and Mrs. Ethel 'Walker concerning the incident on May 13, 1964.

(b)According to Mrs. Brown’s affidavit, tbe plaintiff bad indecently exposed himself in her sight on or about May 1, 1964, and on several other occasions when she had been fishing near the Highway 973 bridge across the Colorado River.

6. The Travis County authorities did not prosecute the plaintiff for the alleged offense of indecent exposure, but they informed the military authorities 'at Bergstrom Air Force Base regarding the complaint which had been made against the plaintiff, and they turned over to the military authorities the statements that were taken from the plaintiff and from Wesley S. Sims, Jr., Mrs. Annie Mae Brown, and Mrs. Ethel Walker.

7. (a) A few days after the plaintiff was released by the Travis County authorities, he was sent by his unit to the Wilford Hall USAF Hospital at Lackland Air Force Base, Texas, for an evaluation by the hospital’s Department of Psychiatry. The plaintiff was hospitalized on that occasion for 2 weeks. On the basis of the examination of the plaintiff by the hospital’s Department of Psychiatry, a psychiatric report on the plaintiff was prepared.

(b) Under the heading of “Present Illness,” the psychiatric report concerning the plaintiff stated in part as follows:

* * * He states * * * that on a number of occasions he has in full consciousness and knowing that he was doing wrong exposed his genitalia to some women sitting on the opposite side of the Colorado River near his base where he was fishing * * *. He states he just felt compelled to do this and when he relieved himself he felt satisfied.

(c) Under the heading of “Final Diagnosis,” the psychiatric report concerning the plaintiff stated in part as follows:

000-X636 — Sexual deviation, voyeur-exhibitionist type, chronic, mild, manifested by indecent exposure on a number of occasions * * *.

(d) The psychiatric report recommended that the plaintiff be returned to duty.

8. (a) On the basis of the material which the Travis County authorities furnished to the military authorities at Bergstrom Air Force' Base, the military authorities preferred court-martial charges against the plaintiff. The charges were to the effect that on or about May 1,1964, the plaintiff had committed the offense of indecent exposure, in violation of Article 134 of the Uniform Code of Military Justice.

(b) The plaintiff was tried by a Summary Court-Martial at Bergstrom Air Force Base on July 31,1964. The plaintiff was represented by military defense counsel. Prior to the trial, the defense counsel stated to the plaintiff that, in view of the written confession which the plaintiff had given to the Travis County Sheriff’s Department, it would be advisable for the plaintiff to plead guilty and throw himself on the mercy of the court. In this connection, the defense counsel expressed the opinion that if the plaintiff followed such a course of action, the penalty assessed by the Summary Court-Martial would consist of a small fine.

(c) Acting on the advice of his defense counsel, the plaintiff entered a plea of guilty at his trial before the Summary Court-Martial on July 31, 1964. Notwithstanding the plea of guilty, the prosecution introduced in evidence the written statements which the Travis County Sheriff’s Department had taken from the plaintiff and from Mrs. Annie Mae Brown.

(d) The Summary Court-Martial found the defendant guilty of the offense as charged, and sentenced him to be reduced to the grade of Staff Sergeant and to forfeit $100 of his pay.

(e) Pursuant to the sentence imposed by the Summary Court-Martial, the plaintiff was reduced from the grade of Technical Sergeant to the grade of Staff Sergeant effective July 31,1964.

9. (a) Subsequent to the trial and conviction of the plaintiff by the Summary Court-Martial, the commander of the Headquarters Squadron Section, 340th Combat Support Group, 340th Bombardment Wing, informed the plaintiff by means of a communication dated October 8,1964, that he proposed to initiate action looking toward the plaintiff’s separation from the Air Force under the provisions of paragraph 4b of Air Force Regulation 39-17. On the same date, the commander of the Headquarters Squadron Section submitted to the 340th Combat Support Group a request that the plaintiff be separated from the Air Force under the provisions of paragraph 4b, AFR 39-17.

(b) Air Force Regulation 30-17 prescribed a procedure, including a hearing before a board of officers, for the discharge of airmen because of unfitness. Paragraph 4b of AFR 39-17 provided in part that an airman was subject to discharge under the regulation for “Sexual perversion, including but not limited to * * * (4) indecent exposure * *

(c) In a communication dated October 12, 1964, the recorder of a board of officers appointed by the 340th Combat Support Group at Bergstrom Air Force Base notified the plaintiff that the board of officers would hold a hearing relative to the plaintiff’s case in a designated room at Bergstrom Air Force Base beginning at 9:00 a.m. on October 21, 1964. The notice indicated that the purpose of the hearing was to investigate whether the plaintiff should be discharged from the service on the basis of (1) his conviction by a Summary Court-Martial on July 31, 1964, of the offense of indecent exposure, and (2) the statement which the plaintiff made to the Travis Comity Sheriff’s Department on May 13, 1964, relative to having indecently exposed himself on a number of occasions.

(d) In response to the notice mentioned in paragraph (c) of this finding, the plaintiff informed the recorder of the board of officers that he desired First Lieutenant Charles R. Marvin to represent him as counsel before the board.

(e) The board of officers held a hearing relative to the plaintiff’s case at Bergstrom Air Force Base on October 21, 1964. The plaintiff appeared in person and gave testimony before the board. He was represented in the board proceedings by First Lieutenant Charles R. Marvin as counsel.

(f) At the outset of the hearing before the board of officers, the recorder of the board offered in evidence the record of the plaintiff’s conviction by a Summary Court-Martial on July 31, 1964, the statements which the Travis County Sheriff’s Department took from the plaintiff and from Mrs. Annie Mae Brown, the psychiatric report concerning the plaintiff prepared by the Department of Psychiatry at the Wilford Hall USAF Hospital, and other papers reflecting the plaintiff’s record in the Air Force tip to that point in time. The plaintiff stated (through his counsel) that there was no objection to such documents being received in evidence by the board, with the exception of Mrs. Brown’s affidavit. Mrs. Brown’s affidavit was objected to on the ground of the lack of any opportunity to cross-examine her, and that her statement was prejudicial to the interests of the plaintiff. The legal advisor of the board inquired whether the plaintiff desired that Mrs. Brown be called to testify before the board in person, to which a negative answer was given. The objection to the admission of Mrs. Brown’s affidavit was then overruled, and the affidavit was admitted in evidence by the board, along with the other documents previously mentioned in this paragraph.

(g) In his testimony before the board of officers, the plaintiff, in effect, admitted the wrongdoing of which he had been accused, but he expressed a strong desire to remain in the military service. The plaintiff justified his request for retention in the service on the basis of his more than 18 years of service and his previous excellent record.

(h) The plaintiff’s request that he be retained in the military service was supported at the hearing before the board of officers by the testimony of a number of members of the Air Force — a Major, two Master Sergeants (one retired), two Technical Sergeants, a Staff Sergeant, four Airmen First Class, and an Airman Second Class. They testified concerning the plaintiff’s high technical qualifications, his excellent record, and his value to the military service.

(i) The plaintiff’s wife also testified before the board of officers in support of his request that he be retained in the military service.

(j) At the conclusion of the hearing, the board of officers made the following findings and recommendations:

Findings:

1. That on 31 July 1964 the respondent was convicted upon a guilty plea of willfully and wrongfully exposing in an indecent manner his penis to public view.

2. That on ten occasions during the past one and a half years, the respondent, while fishing in the Colorado Kiver, and in the presence of colored women fishing in the vicinity, stripped off all of his clothing and exhibited himself to them, and, on several occasions, shook his penis at them.

3. That the incidents contained in Findings 1 and 2 above are manifestations of a personality disorder under paragraph 4b (1), AFB, 39-16, is supplemented (Beference: Standard Nomenclature of Diseases and Operations, Code: 000-X636).

4. That Staff Sergeant Waller, by virtue of his extensive technical training, job knowledge, and excellent performance of duty, is amenable to rehabilitation.

Recommendations :

1. That the respondent be discharged because of unsuitability under AFB 39-16 and that he be furnished a General Discharge.

2. That execution of the discharge be suspended in accordance with the Probation and Behabilitation Program implemented by Headquarters USAF on 19 December 1963.

(k) Air Force Begulation 39-16, referred to in the board’s finding 3 and recommendation 1, prescribed a procedure, including a hearing before a board of officers, for the discharge of airmen on the ground of unsuitability. Paragraph 4b of that regulation, as amended March 16, 1964, stated in part that an airman was subject to discharge for unsuitability when one or more of the following conditions existed:

Character and behavior disorders, * * * and transient personality disorders due to acute or special stress * * *.

10. (a) The record of the proceedings before the board of officers mentioned in finding 9, including the findings and recommendations of the board, was forwarded by the commander of the 340th Combat Support Group to the commander of the Second Air Force at Barksdale Air Force Base, Louisiana, for final action. The letter of transmittal stated that the commander of the 340th Combat Support Group did not concur with the recommendation of the board that the discharge be suspended, but recommended that a general discharge be furnished to the plaintiff, since suspension of the discharge was not considered appropriate.

(b) On November 10, 1964, the Second Air Force approved the findings and recommendations of the board of officers, with the exception of the recommendation that the discharge be suspended, which was disapproved. The Second Air Force directed that the plaintiff be separated from the military service under the provisions of AFB, 39-16 and that he be issued a general discharge certificate.

(c) Pursuant to the action of the Second Air Force, the plaintiff was discharged from the Air Force with a general discharge under honorable conditions effective November 13, 1964. AFB 39-16 was cited as authority for the discharge.

11. (a) Under the date of February 5, 1965, the plaintiff submitted to the Air Force Discharge Beview Board an application asking that his general discharge of November 13, 1964, be set aside and that he be issued an honorable discharge.

(b) A hearing on the plaintiff’s application was held by the Air Force Discharge Beview Board at Washington, D.C., on June 7,1965. The plaintiff appeared in person and gave testimony before the board. He was represented at the hearing by civilian counsel.

(c) In his testimony before the Air Force Discharge Be-view Board, the plaintiff denied the truthfulness of the statement which he had given to the Travis County Sheriff’s Department on May 13,1964, and denied that he had exposed himself in the manner stated in such document. When asked why he signed the statement if it was incorrect, the plaintiff replied in part as follows:

* * * I wasn’t given a chance to contact an attorney * * *; and I wanted to get out of there as soon as I could; and so I just let them write anything they wanted down there. And so I signed it; and I thought I’d get the heck out; because I could counteract it afterwards.

(d) In a decision dated June 24,1965, the Air Force Discharge Beview Board concluded that the plaintiff should be given an honorable discharge in lieu of the general discharge previously issued to him.

(e) After tbe decision of the Air Force Discharge De-view Board bad been approved by the Secretary of the Air Force, the plaintiff was notified of such decision by means of a communication dated July 22, 1965. A new honorable discharge was furnished to the plaintiff at that time, such discharge being retroactively effective as of November 13,1964, and being a replacement for the general discharge previously issued to the plaintiff.

12. (a) Under the date of October 27, 1967, the plaintiff submitted an application for the correction of his military record to the Air Force Board for the Correction of Military Records. In the application, the plaintiff requested that his conviction and sentence by the Summary Court-Martial on July 31, 1964, be set aside; that his discharge from the Air Force on November 13, 1964, be set aside; and that he be reinstated in the Air Force, with full pay and allowances retroactive to the date of his discharge.

(b) A hearing relative to the plaintiff’s application was held by the Air Force Board for the Correction of Military Records at Washington, D.C., on February 19, 1969. The plaintiff appeared in person and gave testimony before the board. He was represented in the board proceedings by civilian counsel.

(c) The Air Force Board for the Correction of Military Records had before it information concerning the plaintiff’s conviction by the Summary Court-Martial on July 31,1964; the statements which the Travis County Sheriff’s Department had taken from the plaintiff and from Wesley S. Sims, Jr., Mrs. Annie Mae Brown, and Mrs. Ethel Walker; the psychiatric report relative to the plaintiff that was prepared by the Department of Psychiatry, Wilford Hall USAF Hospital; information concerning the discharge proceedings before the board of officers and before the Air Force Discharge Review Board; and other data concerning the plaintiff’s record.

(d) In his testimony before the Air Force Board for the Correction of Military Records, the plaintiff asserted that the statement which he had given to the Travis County Sheriff’s Department on May 13,1964, was false. In explaining why be gave incorrect information to Deputy Sheriff Leffingwell, the plaintiff stated in part that “this is what the deputy sheriff wanted,” and that he (the plaintiff) “wanted to get out of there” and “didn’t know how to get out of there,” as it was the first time 'he had ever been “picked up.”

(e) The decision of the Air Force Board for the Correction of Military Records on the plaintiff’s application was dated May 14, 1969. It contained the following conclusions and recommendations:

Conclusions:

The Board upon careful consideration of the testimony presented, the evidence submitted and of record concludes that:

a. Applicant has failed to demonstrate that an error or injustice exists with respect to the findings and sentence of the Summary Court-Martial.

b. Applicant has failed to demonstrate that an error or injustice exists with respect to his discharge.

c. Applicant’s contentions are unfounded.

The Board Recommends That:

1. The application of CARL A. WALLER, AF 19254208, Docket Number 68-057, before the Air Force Board for the Correction of Military Records, be denied.

2. All necessary and appropriate action be taken in consonance with this recommendation.

(f) The plaintiff was duly informed regarding the decision of the Air Force Board for the Correction of Military Records, and that an Assistant Secretary of the Air Force had reviewed the proceedings of the board and had approved the decision of the board.

13. The plaintiff’s petition in this court was filed on November 10,1970.

CONCLUSION OR LAW

Upon the foregoing findings of fact and opinion, which are adopted by the court and made a part of the judgment herein, the court concludes as a matter of law that the plaintiff is not entitled to recover, and the petition is dismissed.

1 The plaintiff was initially given a general discharge, but this was later changed to an honorable discharge.

2 An affidavit -was also obtained from a man named Sims, who was present at tlie scene of the alleged offense on May 13, 1964.

3 As Indicated in footnote 1, tile plaintiff was originally issued a general discharge by the Air Force, but this was later changed to an honorable discharge.