The opinion
BAZELON, Circuit Judge
(dissenting).
Appellant is a youth who was plucked out of civilian life and made a soldier, as are many others, at the threshold of the career he was planning for himself. Before the end of his term of service, he was restored to his civilian status, but hung about his neck was the millstone of “security risk.” The Army has information about his civilian activities and associations on the basis of which it believes it would not be in the national interest to retain him as a soldier, but his military service is admitted to have been “excellent” and he is not claimed to have done anything illegal or reprehensible during his tour of duty. He does not challenge the discretion of the Secretary of the Army to judge whether the national security is served by dismissing a soldier. He complains only that, in the exercise of that discretion, there is neither necessity nor authority for inflicting upon him a gratuitous wound which may plague him all the rest of his days.
Appellant was inducted into the Army on October 31, 1952, as a draftee. On February 9, 1954, the Adjutant General of the Army informed him that the Army had received “derogatory” information about him and ordered him to reply thereto. He replied in writing on March 11,1954. On April 2,1954, the Adjutant General of the Army, acting by order of appellee, informed appellant that, upon review of the derogatory information and appellant’s replies thereto, it had been determined that appellant would not be discharged under AR 615-370 as disloyal or subversive, but would be retained in his grade until completion of his service period, at which time he would receive a discharge “appropriate to the character of service” he had rendered. 1 *623 Five days later, the Secretary of Defense promulgated his Directive 5210.9, purporting to apply to military personnel the criteria of the civilian security program, Executive Order 10450, April 27, 1953, 18 Fed.Reg. 2489, and to authorize dismissal of a soldier as a security risk if “on all the available information it is determined that [his] retention is [not] clearly consistent with the interests of national security.” On May 26, 1954, the determination to let appellant complete his service was reversed and he was informed that he would be given an “undesirable” discharge under AR 615-370 prior to the expiration of his service period. On June 2, 1954, he received such a discharge. 2
Appellant sought unsuccessfully to have his discharge changed to “honorable,” first by appeal to the Army Discharge Review Board and then, in turn, to the Army Board of Correction of Military Records and the Secretary of the Army. Having exhausted all possible administrative remedies, he commenced this suit seeking a declaration that his undesirable discharge was void and an order that it be changed to an honorable discharge. Cross-motions for summary judgment were made. The District Court, concluding that it lacked jurisdiction of the cause, denied appellant’s motion and entered summary judgment against him. This appeal followed.
The derogatory information the Army had about appellant was that he had been employed at what was “reported to be a Communist operated camp”; that he had been employed by the Detroit Urban League, “reported to be a subversive organization”; that he had once “registered to vote in New York City with the American Labor Party * * * cited by the House Committee on Un-American Activities as being under Communist control * * * ”; that he had solicited contributions for the defense of Smith Act prosecution defendants; that his father was reported to be a Communist and connected with various organizations cited as subversive by the Attorney General and to have registered many times with the American Labor Party; that his *624 step-mother had registered with the American Labor Party for about ten years; and that he associated with Communists or Communist sympathizers. 3 In his written reply of March 11, 1954, appellant admitted summer employment by the camp as a kitchen-helper and assistant breakfast cook and by the Urban League as a counselor in its camp for under-privileged negro children. Concerning registration with the American Labor Party, he had admitted it when first interrogated in May 1953, 4 and now added only that, since it was a legally recognized political party, he felt he could properly vote for it. Similarly, he had earlier admitted soliciting funds for the defense of two Smith Act indictees, and now merely added that he felt he had a right to do so. He denied that he was or had ever been a member of the Communist Party, but said that it was possible that he had known or been acquainted with Communists or sympathizers. The allegations concerning his parents he refused to reply to, as he had at his earlier interrogation. The District Court noted in its opinion that “Save for plaintiff’s continuing association with his parents and for writing one letter requesting contribution for the legal defense of two persons indicted under the Smith Act, all charges against plaintiff were based on conduct antedating his induction into the Army.” 5
In his complaint, appellant alleged that his character and efficiency ratings had been “excellent.” In his first answer, filed July 19, 1955, appellee admitted this allegation. On November 29, 1955, however, by amended answer, he pointed out that for about a week in July 1953 and for the period after April 24,1954 (shortly before his discharge was ordered) appellant’s rating was recorded as “unknown.” But, under Army regulations, “ratings of ‘unknown’ and ratings for periods of less than two months are not ‘disqualifying.’ ” 6
Appellant also alleged that he was not and had never been a member of the Communist Party, or any Communist organization, or any organization advocating overthrow of the government or advocating or approving violence in denying others constitutional rights, or any organization seeking to alter our form of government by unconstitutional means, or any organization which, so far as he knew, had ever engaged in subversive activities. He also alleged that he was and always had been “completely and unswervingly loyal to the Government of the United States” and that he “would not hesitate to lay down his life in defense of the United States against any and all of its enemies whomsoever.” Appellee denied these allegations, not on the ground that he believed them to be untrue but because of “lack of knowledge and information sufficient to form a belief” concerning them.
*625 Appellee’s first contention is that we should not even reach the question whether the District Court correctly declined jurisdiction. He informs us that, after this appeal was filed, the Adjutant General notified appellant that the character of his discharge had been upgraded from “undesirable” to “General (under honorable conditions)” and he asserts that there is, therefore, no longer a judicially cognizable case or controversy. 7 This new form of discharge, however, is not the legal equivalent of the honorable discharge which appellant sought.
It may well be, as appellee states, that none of the benefits available to discharged soldiers under federal law are withdrawn from the holder of such a “general” discharge as this. Many benefits are conferred, however, by the statutes of the State of New York, where appellant resides, and those statutes all use the language “honorable discharge” or “honorably discharged.” Although the New York courts have not decided whether this excludes holders of a discharge entitled “General (under honorable conditions),” the late Judge Frank of the Court of Appeals for the Second Circuit suggested that it would. 8 But whatever may be said of the technical legal equivalence or difference between the two types of discharge, from a real-life point of view they are vastly different. The portion of our population holding honorable discharge certificates from the armed services is now so great that an adverse reflection is inherent in a certificate which is other than “honorable.” 9 This is, of course, confirmed by the statement of appellee’s counsel in oral argument that “every soldier gets an honorable discharge unless there is some blemish on his record on account of which he receives a discharge other than honorable.”
Nor is the new form of discharge defensible on the ground that the separation report does not on its face indicate that it was based on security considerations. The same observation could be made concerning the “undesirable” discharge. In both instances, however, a person sufficiently interested to check army regulations would discover the “security” character of the discharge. In the case of the “undesirable” discharge, the only reference to security was the citation of the “disloyal or subversive” regulation, AR 615-370, as the “Reason and Authority for Separation.” The separation report accompanying the “General” discharge recited that “Para. 10, AR 615-120 applies.” This regulation was cited, according to appellee, “to inform recruiting officers that appellant is ineligible for enlistment in the Regular Army.” 10 As anyone may discover, this *626 is a reference to AR 604-10, paragraph 15d, which provides:
“No applicant will be appointed or enlisted without the specific approval of the Secretary of the Army if his separation from previous service indicates that he was relieved from active duty or discharged either as a security risk or for reasons other than security while undergoing investigation under the provisions of these regulations or of corresponding security regulations issued by the other military departments. AR 615-120 applies with respect to former members of the armed services seeking enlistment or reenlistment in the Army.”
See also Defense Department Directive 5210.9, par. II.
Our jurisdiction to entertain the appeal being unimpaired, the next question to consider is the District Court’s ruling that, under our decision in Gentila v. Pace, 1951, 90 U.S.App.D.C. 75 , 193 F.2d 924 , it was “constrained” to disclaim jurisdiction of the cause.
“Stripped of self-contradiction and legal conclusions, all that [Gentila’s] complaint allege [d]” was that his dishonorable discharge for desertion rested upon “an erroneous finding of fact” that he was mentally capable of forming an intent to desert. We held that “merely erroneous findings of fact by the Discharge Review Board shall not be revised by a court.” 90 U.S.App.D.C. at page 77, 193 F.2d at page 927 . Although the District Court recognized that the instant case involved questions of law, it nevertheless thought Gentila controlling on the ground that both cases also involve “a review of the findings upon which the separation was based * * Harmon v. Brucker, D.C.D.C.1956, 137 F.Supp. 475, 477 . In this the District Court was wrong. The “findings upon which the separation [in the present case] was based” are not challenged at all. Indeed, as the majority opinion points out, appellant does not challenge the appellee’s power to remove him from the Army on mere suspicion that he is a security risk. 11 But, whether or not the interests of national security justify dismissing a soldier on mere suspicion, appellant claims that those interests are not served by branding such a soldier as a security risk as he passes through the gate. 12 The issue he raises is one of law: whether appellee may withhold an honorable discharge from a soldier whose conduct and efficiency ratings have never been less than “excellent,” even assuming the correctness of all of the information appellee relies upon. That claim being “wholly dependent upon a question of law,” it is within the jurisdiction of the District Court. United States v. Williams, 1929, 278 U.S. 255, 257-58 , 49 S.Ct. 97, 98 , 73 L.Ed. 314 ; Note, 70 *627 Harv.L.Rev. 533, 539-40 (1957). Nothing in Gentila v. Pace, supra, is to the contrary. Nor can I accept it as settled (either by this court or the Supreme Court) that courts may not in circumstances like these review the issuance of a less than honorable discharge. As was pointed out in Schustack v. Herren, 2 Cir., 1956, 234 F.2d 134 , 135 note 1, “The Supreme Court has not yet spoken on the question of ‘whether and to what extent the courts have power to review or control the War Department’3 action in fixing the type of discharge certificates issued to soldiers [footnote omitted] * * Patterson v. Lamb, 329 U.S. 539, 542 , 67 S.Ct. 448, 449 , 91 L.Ed. 485 .” In the footnote, the Supreme Court referred, among other authorities, to the decision of this court in Denby v. Berry, 1922, 51 App.D.C. 335 , 279 F. 317, 320 , reversed on other grounds, 1923, 263 U.S. 29 , 44 S.Ct. 74 , 68 L.Ed. 148 . In that case we held “void and without authority of law” what we thought to be a discharge which did not comport with statutory procedure. 13 See also Davis v. Woodring, 1940, 72 U.S.App.D.C. 83 , 85, 111 F.2d 523, 525 .
That appellant seeks, in addition to a declaration that the discharge given him was void, an order that he be given an honorable discharge does not, in my view, deprive the District Court of jurisdiction. If, upon review, the discharge given appellant is declared to be void, we must assume that the Secretary would issue a discharge which is not void. Denby v. Berry, supra. Moreover, if the District Court finds the denial of an honorable discharge to rest on legally insufficient grounds, it may, at least, enjoin a denial for such reasons. Perkins v. Elg, 1939, 307 U.S. 325, 349-350 , 59 S.Ct. 884 , 83 L.Ed. 1320 ; Shachtman v. Dulles, 1955, 96 U.S.App.D.C. 287, 294 , 225 F.2d 938, 940 .
Both parties request that we decide the merits of this controversy — namely, whether the Universal Military Training and Service Act of 1948, 62 Stat. 606 , 50 U.S.C.A.Appendix, § 454(b), 14 pursuant to which Directive 5210.9 was promulgated, authorizes issuance of less than an “honorable discharge” certificate, in the circumstances of this case. But I think that since the District Court never reached consideration of the merits, sound judicial practice requires that it should first have that opportunity
. This comported with the traditional Army policy that the type of discharge be governed entirely by the service record, absent some disqualification covered by specific regulation. Thus, though a less than honorable discharge certificate can be given to a homosexual, a drug addict, a chronic alcoholic, a habitual shirker, a person with psychopathic personalty, or a repeated petty offender (AR 635-208, formerly AR 615-368); to a de *623 serter, a solidier wiio has entered the Army by fraud, or one who is convicted of crime in a civil court (AR 635-206, formerly AR 615-366); or to one who is “determined by investigation to be disloyal or subversive” (AR 615-370, as implemented by Special Regs. 600-220-1) ; where there is no such fault, an honorable discharge is called for if the soldier’s conduct has been rated at not less than “good” and his efficiency at not less than “fair” (AR 635-200, par. 8). Former Secretary of the Army Stevens told a Senate Committee:
“The traditional policy of the Army has been that the discharge given should reflect the service rendered. In other words, a man whose conduct has been faithful and honest during the time in the service would be entitled to separation under honorable conditions, notwithstanding what his conduct may have been prior to entering the service.” Hearings, Senate Armed Services Committee on S. 3096, 83d Cong., 2d Sess., March 18, 1954, at p. 75.
. Defense Directive 5210.9 provides that the separation report of a soldier discharged as a security risk “will cite as authority the appropriate Armed Service directive under which separation is ef-feeted.” Par. YHI-F-6. On Juno 2, 1954, when appellant was given his undesirable discharge, there was no specific Army directive dealing with security risks. AR 615-370, which was cited in the separation report as authority for the discharge, permits an undesirable discharge only upon a determination that the soldier is “disloyal or subversive.” No such determination having been made regarding appellant, AR 615-370 was inapplicable. Indeed, appellee asserts that it was cited by mistake, the real basis for appellant’s discharge being Directive 5210.9 itself.
By the time the Army Discharge Review Board reviewed appellant’s discharge on April 11, 1956, and upgraded it to “General,” the Army had already promulgated its specific “Personnel Security Clearance” regulations, AR 604-10, July 29, 1955. But those new regulations were not cited in the corrected separation report as authority for the action. The only additional authority cited for the new action was “Sec. 301, P.L. 346” which is merely the provision for review procedure. 58 Stat. 286 (1944), 38 U.S.C.A. § 693h. Thus the only basis for appellant’s discharge remains Defense Directive 5210.9.
. On May 7, 1953, the Army, without revealing this derogatory information to appellant, used it as the basis for interrogating him. On that occasion appellant denied that he was or had ever been a Communist or a member of any subversive organization, gave some details concerning persons about whom he was asked, described the circumstances under which he solicited funds for the defense of the Smith Act, 18 U.S.C.A. § 2385 , defendants, and gave sundry other information. With respect to a number of questions, appellant invoked his privilege under the Fifth Amendment and under Article 31 of the Uniform Code of Military Justice, 64 Stat. 118 , 50 U.S.C.A, § 602, against self-incrimination. He later explained that he had invoked his privilege as a result of fear and apprehension growing out of the circumstances of the interrogation and the fact that he was ■without counsel. The questions as to which he had invoked the privilege were put to him again in the February 9, 1954, order and he answered all of them, except those relating to his parents. As to those, his refusal was based not on privilege, but rather on “moral indignity [sio],” “filial piety,” and the assertion that they were irrelevant.
. Supra note 3.
. Harmon v. Brucker, D.C.D.C.1956, 137 F.Supp. 475, 476 .
. AR 615-360, par. 8b.
. The majority expresses no specific opinion as to tills contention. It would seem, however, since the majority proceeds to deal with the question of the District Court’s jurisdiction, that it rejected the contention that there is no longer a judicially cognizable case or controversy.
. “Although a General Discharge (Under Honorable Conditions) apparently entitles a veteran to most, if not all, benefits under federal law, the statutes of New York, of which plaintiff is a resident, requires [sic} that a veteran have an Honorable Discharge in order to be eligible for various benefits under state law. gee e. g. New York Military Law McK.Consol.Laws, c. 36, §§ 245, 250; New York General Municipal Law, McK.Consol.Laws, c. 24, § 148; New York Education Law, McK.Consol.Laws, c. 16, § 609; New York General Business Law McK.Consol.Laws, c. 20, § 32.” Schustack v. Herren, 2 Cir.1956, 234 F.2d 134 , 135 n. 2.
. What the Supreme Court said in Wie-man v. Updegraff, 1952, 344 U.S. 183, 190-191 , 73 S.Ct. 215, 218 , 97 L.Ed. 210 , concerning the discharge of an employee on disloyalty grounds is, we think, not inapplicable here:
“There can be no dispute about the consequences visited upon a person excluded from public employment on disloyalty grounds. In the view of the community, the stain is a deep one; indeed, it has become a badge of infamy. Especially is this so in time of cold war and hot emotions when ‘each man begins to eye his neighbor as a possible enemy.’ ”
. Compare, in this connection, Bailey v. Richardson, 1950, 86 U.S.App.D.C. 248 , 257-258, 182 F.2d 46, 55-56 , affirmed by *626 an equally divided Court, 1951, 341 U.S. 918 , 71 S.Ct. 669 , 95 L.Ed. 1352 , in which in sustaining the validity of the Government’s civilian employee loyalty program, we pointed out that “mere dismissal from the Government service” is not punishment in the sense that permanent proscription from Government service had been held to be in United States v. Lovett, 1946, 328 U.S. 303, 316 , 66 S.Ct. 1073 , 90 L.Ed. 1252 .
. Cf. Bailey v. Richardson, supra note 10, 86 U.S.App.D.C. at page 263, 182 F.2d at page 61 : “The Constitution does not require the President to continue to use in the training of Government personnel, the work performed by this appellant, a person whose loyalty to the Government he suspects. There is no reason in the Constitution why the President should not limit the training staff to persons whose loyalty is beyond the faintest shadow of suspicion.”
. Even in the case of a civilian Government employee, who sought the position he holds, rather than being drafted, although we said that “mere dismissal” is not punishment and that there is no redress for injury suffered “in the process of dismissal,” we recognized no authority to inflict gratuitous injury over and above the dismissal. Bailey v. Richardson, supra note 10, 86 U.S.App.D.C. at pages 257-258, 265, 182 F.2d at pages 55-56, 63.
. Our decision was reversed by the Supreme Court upon the ground that what we considered a discharge was actually merely a transfer from active to inactive status, something wholly within the discretion of the commander-in-chief.
. The statute sets the draftee’s term of service at two years, “unless sooner released, transferred, or discharged in accordance with procedures prescribed by the Secretary of Defense * *