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154 Ct. Cl. Conclusion of Law herself and assisted her younger sisters financially during this period. At no time from May 1942 to 1950 did she have sufficient uncommitted income or funds to meet the taxes and mortgage payments on her Imperial farm, unless she had defaulted in meeting the necessary cost of farm operation.

57. Tom earned ten cents per day while interned in 1942, and $18 per month while evacuated to the relocation center at Poston. On his release in 1944 he obtained $200 from Mary to start a four-acre farm near Henderson, Colorado. His net profit from farming in each of the years 1945 through 1948 was, respectively, $593.98, $186.83, $2,773.40 and $645.04. In 1949 he lost $872.23. In 1950 his net profit was $934.05. With his modest post-war income he supported himself, his wife, and a widowed daughter and her children. Thus Tom had no money between 1942 and 1950 to meet taxes and mortgage payments on the defaulted Imperial and Niland farms, and no funds or equipment in 1950 to operate the Niland farm even if he or Mary had redeemed it.

58. The defendant asks that there be set off against any recovery found to be due the plaintiff certain items, including $700 for fertilizer said to have been purchased by the plaintiff prior to evacuation. There is no record or recollection by the witnesses of this bill ever having been paid, and the evidence as to the charge itself is based upon hearsay contained in an exhibit. The evidence does not satisfactorily establish the conclusion requested, namely, that evacuation resulted in plaintiff escaping payment of a bill that she would have otherwise been obliged to pay.

CONCLUSION OF LAW

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that plaintiff is entitled to recover, and it is therefore adjudged and ordered that she recover of and from the United States the amount of twenty-seven thousand nineteen dollars and forty-nine cents ($27,019.49).

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Syllabus

JESSE FREDERICK MURRAY v. THE UNITED

STATES

[No. 237–57. Decided June 7, 1961)

ON THE PROOFS

Military pay; active duty pay; discharge-general under honorable

conditions.-In an action by plaintiff, a former master sergeant in the Air Force, to recover active duty pay and allowances from May 9, 1956, on the ground that his administrative general discharge under honorable conditions, pursuant to Air Force Regulation 35–66 pertaining to homosexual conduct or tendencies, was illegal because it was based on conduct occurring in a prior enlistment, it is held that under applicable Air Force Regulation 39–10, dated October 27, 1953, and in effect at the time of plaintiff's discharge in 1956, the type of discharge to be issued had to be determined solely on the basis of the plaintiff's military record during his currrent enlistment and since plantiff's conduct and performance met all the requirements for an honorable discharge, the giving of a less than honorable discharge violated plaintiff's rights under a valid regulation of the Air Force and plaintiff is entitled to recover. Service v. Dulles, 354 U.S. 363; Watson v.

United States, 142 Ct. Cl. 749. Court of Claims- jurisdiction; discharge of military personnel-re

view of discharge by Court of Claims.—The Court of Claims has jurisdiction to construe applicable law to determine whether the Secretary of one of the miltary services exceeded his powers in discharging a person from military service. Harmon v. Brucker, 355 U.S. 579; Clackum v. United States, 148 Ct. Cl.

404. Armed Services Cm 23.5 Military pay; active duty pay; discharge-general under honorable

conditions-effect of.-A general discharge under honorable conditions, containing a reference to Air Force Regulation 35–66 pertaining exclusively to homosexuality, carries with it the same stigma as an undesirable discharge and in the case of a female airman, it precludes her reeinlistment. AFR 39–10, October 27, 1953. It is certainly not the legal equivalent of an honorable discharge and the refusal of the Air Force to issue plaintiff an honorable discharge in the place of such a general discharge creates a controversy of which the court

may take judicial cognizance. Armed Services C 22 Regulations of executive department; binding effect of regulation on

department or agency.-An executive department of the Govern154 Ct. Cl. Opinion of the Court ment is bound by its own regulations. Service v. Dulles, 354

U.S. 363. Administrative Law and Procedure w 416 United States om 40 Military pay; active duty pay; regulations of executive department

discharge rendered in violation of.—Where applicable Air Force "Regulations (39–10, October 27, 1953) require that an honorable discharge must issue where certain standards of conduct and performance have been met by the airman during his current period of service, a serviceman who qualified under the regulation but who was given a general discharge based on misconduct in a prior enlistment, has been discharged in violation of the regulation of an executive department and is entitled to recover the pay lost during the unexpired period of his six-year enlistment. Service v. Dulles, 354 U.S. 363; Watson v. United

States, 142 Ct. Cl. 749. Armed Services Om 23.1 (6) Military pay; disability retired pay; administrative remedies-failure

to exhaust.—Where an airman discharged in violation of a valid regulation of the Department of the Air Force directed all his efforts at the administrative level to have his general discharge changed to an honorable discharge and to have deleted from his record all references to AFR 35–66, and where he took no steps to secure disability retirement with pay, his petition in the Court of Claims claiming for the first time the right to disability retired pay on the ground that he had a serviceincurred disability, will, to that extent, be dismissed for failure

to exhaust his administrative remedies. Armed Services Our 23.5 Military pay; active duty pay; regulations of executive department

discharge rendered in violation of-measure of recovery.--An airman discharged from military service in violation of a valid regulation of the Air Force, is entitled to recover his pay and allowances from the date of his wrongful discharge to the date on which his enlistment would ordinarily have expired. He is also entitled to recover all of his reinlistment bonus including

the allegedly unearned portion thereof. Armed Services C 23.1 (6)

Robinson 0. Everett for the plaintiff.

John R. Franklin with whom was Assistant Attorney General William H. Orrick, Jr. for the defendant.

DURFEE, Judge, delivered the opinion of the court:

On May 2, 1954, the Secretary of the Air Force directed that the plaintiff, then a master sergeant, be administratively discharged with a general discharge under honorable con

185

Opinion of the Court

ditions under the provisions of Air Force Regulation 35–66 dated May 31, 1954, which pertained to homosexual conduct or tendencies. He was accordingly discharged on May 9, 1956. In this action he questions the validity of his discharge and seeks to recover damages in the form of various items of pay and allowances.

Before commencing this action, plaintiff sought without success to have his discharge changed to an honorable discharge and all reference to AFR 35–66 deleted by an Air Force Discharge Review Board. He attempted to obtain the same relief from an Air Force Board for the Correction of Military Records but the Correction Board refused to grant the relief requested.

The first issue raised by the defendant questions the authority of this court to review and determine the legality of the Secretary's action in issuing a general discharge instead of an honorable one. The defendant's position is that the Government may terminate the enlistment of an airman at any time and that such matters are not properly subject to judicial review. In the administrative proceedings leading up to this case, plaintiff did not challenge the right of the Secretary to terminate his enlistment but he did challenge the Secretary's authority to issue the type of discharge herein involved.

In Harmon v. Brucker, 355 U.S. 579 (1958) the Secretary of the Army had issued discharges under conditions other than honorable to the plaintiffs in that case. In so doing, he took into account certain pre-induction activities rather than basing his action exclusively upon the records of their military service. The petition in the District Court requested a ruling that the Secretary's action was void as in excess of his powers and an order directing him to issue honorable discharge certificates. The District Court held that it was without authority to review the determination of the Secretary of the Army and the Court of Appeals affirmed. Of these decisions, the Supreme Court said, at page 582:

The District Court had not only jurisdiction to determine its jurisdiction but also power to construe the statutes involved to determine whether the respondent did exceed his powers. If he did so, his actions would

154 Ct. Cl. Opinion of the Court not constitute exercises of his administrative discretion, and, in such circumstances as those before us, judicial

relief from this illegality would be available. In considering an Air Force discharge under other than honorable conditions, this court said in Clackum v. United States, 148 Ct. C1, 404, 408:

It is late in the day to argue that everything that the executives of the armed forces do in connection with the discharge of soldiers is beyond the reach of judicial

scrutiny. (Citing Harmon v. Brucker, supra.) We shall therefore proceed within our jurisdictional authority to examine the legality of the action of the Secretary of the Air Force in issuing a general discharge under honorable conditions rather than an honorable discharge to the petitioner. In addition to challenging the court's jurisdiction over this matter, the Government has attempted to blunt the plaintiff's argument by minimizing the difference between the two types of discharges. It asserts that in a general discharge under honorable conditions mere reference by number only to AFR 35–66 (which pertains exclusively to homosexuality) does not carry with it any stigma or penalty such as resulted in Clackum v. United States, supra, where the petitioner was issued an undesirable discharge. This is an unmerited conclusion; the Air Force itself says that a general discharge "may be a disadvantage to an airman seeking civilian employment. A general discharge received by a female airman precludes her reenlistment.” AFR 39–10, dated October 27, 1953. The defendant has said in its brief that, in any event, the discharge was a reasonable and necessary precaution from the standpoint of the Air Force. Having rid itself of plaintiff, it goes on, the Air Force would hardly have wanted to make it possible for him to later reenlist somewhere else.

We need go no further in concluding that the discharge issued plaintiff is not the legal equivalent of the honorable discharge which he sought in the administrative review of his case. The refusal of the Air Force to issue plaintiff an honorable discharge in place of the general discharge does create a controversy of which we may take judicial cognizance.

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