AR 604-10 PDF

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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 604-100 a discharge after its issuance or to enjoin the issuance of a discharge.

The kindest view I can take of the matter is that plaintiffs’ counsel have labored under a misapprehension about admissions or concessions by the defendant. 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. Accordingly, in the absence of a proper showing of irreparable injury by the plaintiffs, the motion for a preliminary injunction will be denied.

United States ex rel. 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.

Thus, considering the motion as a “speaking motion” under Rule 12 b 12 Moore’s Federal Practice,2d ed. Lieutenant General Thomas W. 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, In support of this part of the motion to dismiss, an 604-1 has been submitted by counsel, on information and belief, concerning the defendant’s lack of authority.

Raby, New York City, of counsel, for defendant. 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.

United States, U. The defendant has also moved to dismiss on the ground of lack of jurisdiction over the subject matter, zr that the conduct of a field board of the Army [5] insofar as the plaintiffs are concerned is not subject to the control of the defendant in this suit.

The cross-motion to dismiss will be denied. I do not doubt that plaintiffs genuinely fear the imminence of such injury. Inasmuch as the charges against the plaintiffs have not yet been decided, or 604–10 heard, a showing of irreparable injury can obviously not be predicated upon them, for the charges may conceivably be held groundless.

It is certainly not contended that the Army could try a soldier for a crime alleged to have been committed prior to his entry upon service.

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The motion to dismiss the complaint on the ground that it fails to state a claim upon which relief can be granted, in that plaintiffs have failed to exhaust their administrative remedies, stands in the posture of admitting the well-pleaded material 604-0 of the complaint.

The purpose to be served by such proof would be to 6604-10 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. 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.

But the facts on which the fear is based do not appear in the record by which I am bound to decide. 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.

The complaint is directed at the conduct by the Army of certain proceedings under ARleading possibly to the termination of plaintiffs’ Army service with discharges other than honorable. The defendant has cross-moved for dismissal under Fed.

With this position, on the basis of the assumptions made, I am in agreement. General Railway Signal Co. An honorable discharge encompasses a property right, as well as civil rights and personal honor. It would seem basic, therefore, that sr 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.

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 ag that service. In any event, this court has the power, in the appropriate circumstances, to issue a mandatory injunction, Trautwein v.

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.

United States At Court S. The essential averments in the affidavit are not only without personal knowledge but they are largely conclusory in nature.

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. The exercise 6004-10 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. 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.

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There are general statements in a memorandum about charges made 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”. And the plaintiffs have 064-10 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.

I would not assume, and could not if I would, for the purposes of preliminary injunction, the existence of facts warranting the court’s intervention. But the plaintiffs have in any event failed to make the necessary showing of irreparable injury.

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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.

The affidavit submitted, however, was in such form as to be of little or no help in such an analysis.

The distinction is urged that an injunction against the defendant would call for an affirmative act which he is powerless to perform. 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.

The motion for a preliminary injunction stands in an entirely different posture from the motion to dismiss under Rule 12 b 6.

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 at, but who was inducted with knowledge on the part of the Army, actual or constructive, of his civilian background.

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.