AR 604-10 PDF

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It is urged that it is the latter officer who should have been made the defendant.

Accordingly, in the absence of a proper showing of irreparable injury by the plaintiffs, the motion for a preliminary injunction will be denied. Finally, it is argued that the failure to join the Secretary of the Army, at whose instance final action would be taken under ARis a failure to join an indispensable party, an incurable defect because the Secretary’s residence is in the District of Columbia.

The defendant is being sued in his official capacity as Commander of the First Army, with headquarters in this district. The issue, however, to which it is addressed is not the determination of the security status of an individual soldier, nor even his retention in the army, but the infliction of harm by means of a discharge without honor in the case of one who not only does not merit such a discharge on the basis of his actual service, but who was inducted with knowledge on the part of the Army, actual or constructive, of his civilian background.

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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 that service. The termination of plaintiffs’ Army service with less than honorable discharges would so brand and stigmatize them, with consequences too obvious to require aar, as to 60410 irreparable injury undeniable.

It is true that under AR the field board hearings scheduled [1] are merely first steps in an administrative process which ends with recommendations of the Department of the Army Review Board in Washington, and the plaintiffs have failed to make any attempt to exhaust this administrative process. No testimony was offered, no affidavits were submitted sr no proof of any fact was undertaken.


Provided, That said regulations shall not be inconsistent with the laws of the United States. 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 64-10 declaratory judgment concerning their discharge rights.

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 lawful civilian conduct.

Xr a memorandum dated November 18,the court held the motion in abeyance pending the making of a showing by plaintiffs which they had not attempted of the imminence of irreparable injury. 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 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.

A procedure which postulates pre-induction civilian conduct as the basis for a less than honorable discharge could not be countenanced and it must be concluded that such a procedure is legislatively unauthorized.

Raby, New York City, of counsel, for defendant. The field boards have apparently been called ag order of the plaintiffs’ Commanding 640-10, the Commanding General at Fort Dix, New Jersey, not within this district.

Bernstein v. Herren, 136 F. Supp. 493 (S.D.N.Y. 1956)

The exercise of military jurisdiction to inflict painful and injurious consequences, if not “punishment”, upon a service man for prior civilian conduct would be a shocking perversion of the elementary canons of due process. The motion for a preliminary injunction stands in an entirely different posture from the motion to dismiss under Rule 12 b 6.

But the plaintiffs have in any event failed to make the necessary showing of irreparable injury. Consequently, for the purposes of the motion to dismiss under Rule 12 b 6the following facts are deemed admitted: 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. Supplemental Opinion January 4, The possible unavailability of judicial review, however, zr not a justification for the failure to exhaust administrative remedies.


Bernstein v. Herren, F. Supp. (S.D.N.Y. ) :: Justia

Legislation on the subject of discharge [3] leaves the matter largely to be dealt with by regulation, 6604-10 there is no contention that the Secretary of the Army may not establish appropriate procedures. But it is contended that the procedure under ARin so far as it purports to authorize proceedings based upon conduct antedating induction, 604-01 not authorized and is illegal.

As already indicated, it is not at this time clear that he lacks the necessary power. 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.

With this position, on the basis of the assumptions made, I am in agreement. The purpose to be served by such proof would be to determine the effective time of inferences which could be drawn from the claim of privilege in refusing to complete the form leaving aside entirely the issue of the propriety of drawing any inferences at all.

There are general statements in a 60-10 about charges 640-10 against the plaintiffs, and there is also a conclusory statement that the plaintiffs are threatened with a discharge, no matter how any field board hearing might go, no better than a “general discharge under honorable circumstances”, on the ground that they refused to complete DD 98 forms “Loyalty Certificates for Personnel in the Armed Forces”.

Plaintiffs, inductees now serving in the Army at Fort Dix, New Jersey, have sued for a declaratory judgment concerning their discharge rights, and have moved for a preliminary injunction restraining the defendant from taking proceedings against them under regulation AR July 29, It is alleged that such discharges are 604-110 solely on the basis of facts and occurrences existing prior to plaintiffs’ inductions, despite their satisfactory and honorable service.

If that view has any substance, then the plaintiffs have not had their day in court on their motion, an eventuality 6041-0 to the pursuit of justice. An honorable discharge encompasses a property right, as well as civil rights and personal honor.