AR 604-10 PDF

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Supplemental 064-10 January 4, The field boards have apparently been called by order of the plaintiffs’ Commanding Officer, the Commanding General at Fort Dix, New Jersey, not within this district.

, SMA Attenuators

It is familiar and elementary law that “the granting of a preliminary injunction is an exercise of a very far-reaching power, never to be indulged in except in a case clearly demanding it.

Accordingly, in the absence of a proper showing of irreparable injury by the plaintiffs, the motion for a preliminary injunction will be denied. The defendant is being sued in his official capacity as Commander of the First Army, with headquarters in this district. Legislation on the subject of discharge [3] leaves the matter largely to be dealt with by regulation, and there is no contention that the Secretary of the Army may not establish appropriate procedures.

Inasmuch as the charges against the plaintiffs have not yet been decided, or even heard, a showing of irreparable injury can obviously not be predicated upon them, for the charges may conceivably be held groundless.

And it is further alleged that so much of the regulation as deals with termination of service on the basis of acts prior to induction is invalid. It is alleged that such discharges are threatened solely on the basis of facts and occurrences existing prior to plaintiffs’ inductions, despite their satisfactory and honorable service.

The distinction is urged that an injunction against the defendant would call for an affirmative act which he is powerless to perform. It is inconceivable to me that the Army would so terminate a soldier’s service on the sole basis of conduct occurring prior to induction. Certainly, no showing has been made to afford me a reasonable ground to believe that the Army will, if no injunction is granted, terminate plaintiffs’ service with less than honorable discharges on the basis merely of their 640-10 civilian conduct.

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The termination of plaintiffs’ Army service with less than honorable discharges would so brand and stigmatize them, with consequences too obvious to require specification, as to make irreparable injury undeniable. If that view has any substance, then the plaintiffs at not had their day in court on their motion, an eventuality distasteful to the pursuit of justice.

As already indicated, it is not at this time clear that he lacks the necessary power. Viewing the issue in this light, the defendant for the first time argues, with the citation of substantial authority, that the court is nevertheless without jurisdiction to review a discharge after its issuance or to enjoin the issuance of a discharge.

Qr would not assume, and could not if I would, for the purposes of preliminary injunction, the zr of facts warranting the court’s intervention. Plaintiff inductees in the United States Army have previously moved for a preliminary injunction restraining the defendant from taking proceedings against them under regulation ARpending the outcome of their suit for a declaratory judgment concerning their discharge rights.

General Railway Signal Co. But the a have in any event failed to make the necessary showing of irreparable injury. Specifically, plaintiffs were required to make a showing that the Army would, if no injunction were granted, terminate plaintiffs’ service with less than honorable discharges on the basis merely of their lawful civilian conduct. The defendant has also moved to dismiss on the ground of lack of jurisdiction over the subject matter, in that the conduct of a field board of the Army [5] insofar as the plaintiffs are concerned is not af to the control of the defendant in this suit.

United States District Court S. The showing was, however, predicated upon the claim, which is conceded, that plaintiffs, having failed to complete a “Loyalty Certificate for Personnel of the Armed Forces”, form DD 98, [1] they cannot qualify for more than a general discharge under honorable conditions, under paragraph 17b 1 b of AR Raby, New York City, of counsel, for defendant. It would seem basic, therefore, that a soldier has a right to an honorable discharge if his military record merits it and that he cannot be held to answer, in the consideration of his discharge, for matters extraneous to that record.

In any event, this court has the power, 604-0 the appropriate circumstances, to issue a mandatory injunction, Arr v. The essential averments in the affidavit are not only without personal knowledge but they are largely conclusory in nature.

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And it is the claim of the plaintiffs that they have a statutory right to be considered for discharge strictly on the basis of the merits of their military service, without being put in jeopardy of a less than honorable discharge on the basis of anything extraneous to 064-10 service.

Yet to put a soldier in jeopardy of a less than honorable discharge for acts committed prior to induction and for acts which were not criminal is scarcely less offensive to our notions of rudimentary fairness. wr

But it is contended that the procedure under ARin so far as it purports to authorize proceedings based upon conduct antedating induction, is not authorized and is illegal. And the plaintiffs have made no showing whatever, and have attempted to make none, that such a discharge qualifies as the kind, described in the previous memorandum, that would brand and stigmatize a recipient so as to cause him irreparable injury.

It is urged that it is the latter officer who should have been made the defendant. The affidavit submitted, however, was in such form as to be of little or no help in such an analysis. Supplemental Opinion Plaintiff inductees in the United States Army have previously moved for a preliminary injunction restraining the defendant from taking proceedings against them under regulation ARpending the outcome of their suit for a declaratory judgment concerning their discharge rights.

The possible unavailability of judicial review, however, is not a justification for the failure to exhaust administrative remedies. An honorable discharge encompasses a property right, as well as civil rights and personal honor.

All that does appear is the fact that field board hearings have been scheduled to initiate the procedure whereby the feared result may occur. If the claim of privilege was previous to or simultaneous with induction, then any logical inferences drawn must certainly be relevant only to civilian conduct. The cross-motion to dismiss will be denied.