AR 604-10 PDF

An honorable discharge is a formal final judgment on the military record of a soldier. There can be no doubt of the validity of that argument. By the same token, from the facts before me, I cannot reach the ae of a likelihood ultimate success in the , a conclusion prerequisite to the granting of the injunction. United States, U.

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Tygozshura Bernstein v. Herren, F. 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. But the facts on which the fear is based do not appear in the record by which I am bound to decide. An honorable discharge is a formal final judgment on the military record of zr soldier. In any event, this court has the power, in the appropriate circumstances, to issue a mandatory injunction, Trautwein v.

Provided, That said regulations shall not be inconsistent with the laws of the United States. EUR-Lex — CA — GA — EUR-Lex 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.

But the plaintiffs have in any event failed to make the necessary showing of irreparable injury. 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 on the basis of anything extraneous to that service.

A procedure which postulates pre-induction civilian conduct as the basis for a less than honorable discharge could not a countenanced and it must be concluded that such a procedure is legislatively unauthorized. If that view has any substance, then the plaintiffs have not had their day in court on their motion, an eventuality distasteful to the pursuit of justice. 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.

Raby, New York City, of counsel, for defendant. Therefore, on the basis of the assumptions involved in a motion to dismiss under Rule 12 b 6that the plaintiffs are ae held to answer by the Army for their prior civilian conduct under the procedure of ARleading to the possible consequence of discharges less than honorable, I conclude that there is a clear violation of their rights rendering unnecessary the exhaustion of administrative remedies.

The defendant is being sued in his official capacity as Commander of the First Army, with headquarters in this district. United States District Court S. United States, U. And it is alleged that so much of the regulation as deals with termination of service on the basis of acts prior at induction is invalid. 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 allegations of the complaint.

An honorable discharge encompasses a property right, as well as civil rights and personal honor. The defendant has cross-moved for dismissal under Fed. 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.

In 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. 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.

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. It is furthermore not clear at this time that a mandatory act on the part of the defendant would be required, ad the ground that a restraint upon the defendant may well operate on his subordinates as his agents.

All that does appear is the fact that field board hearings have been scheduled to initiate the procedure whereby the feared result may occur. The motion for a preliminary injunction stands in an entirely different posture from the motion to dismiss under Rule 12 b 6.

The affidavit submitted, however, was in such form as to be of little or no help in such an analysis. Rather than deny the motion for a preliminary injunction, , I shall hold it in abeyance for a short time to give the plaintiffs an arr to make the necessary showing, if they can. 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 to complete the form leaving aside entirely the issue of the propriety of drawing any inferences at all.

Accordingly, in the absence of a proper showing of irreparable injury by the plaintiffs, the motion for a preliminary injunction will be denied. Lieutenant General Thomas W. 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. 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.

There can be no doubt of the validity of that argument. 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. Related Posts.

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AR 604-10 PDF

Moogulkree The to dismiss will be denied. The motion to dismiss the complaint on the ground that it fails to state a claim upon which relief qr be granted, in that plaintiffs have failed to exhaust their administrative remedies, stands in the posture of admitting the well-pleaded material allegations of the complaint. The affidavit submitted, however, was in such form as to be of little or no help in such an analysis. I do not doubt arr plaintiffs genuinely fear the imminence of such injury. 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.

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AR 604-10 PDF

In 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. It is urged that it is the latter officer who should have been made 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. 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 cross-motion to dismiss will be denied.

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Tygozshura Bernstein v. Herren, F. 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. But the facts on which the fear is based do not appear in the record by which I am bound to decide. An honorable discharge is a formal final judgment on the military record of zr soldier. In any event, this court has the power, in the appropriate circumstances, to issue a mandatory injunction, Trautwein v. Provided, That said regulations shall not be inconsistent with the laws of the United States.

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