finding that the plaintiffs discharge could not be based upon a military review board’s decision that was rendered in violation of the plaintiffs due process rights and entitlements under the applicable military regulations
How later courts described this case
- finding that the plaintiffs discharge could not be based upon a military review board’s decision that was rendered in violation of the plaintiffs due process rights and entitlements under the applicable military regulations
- voiding an Air Force proceeding that formed the basis for subsequent discharge because it failed to comply with Air Force regulations granting the right to counsel and the right to a verbatim transcript, among other things
- finding that the plaintiff's discharge could not be based upon 6 Interestingly, the Love court explicitly noted: The law is clear that “the proper focus of a reviewing court is on the reasons given by the (administrative authority
- court of appeals ordered reinstatement of Air Force officer denied promotion and discharged for expressing moral reservations about use of nuclear weapons to cause massive civilian casualties, where Air Force did not accord procedural protections set out in Air Force regulations
Written by the judges who cited it.
The opinion
ROBB, Circuit Judge,
dissenting:
VanderMolen, an officer in the United States Air Force, announced that he doubted his ability to execute a missile launch order unless he approved the target of the missile. In view of his attitude the Air Force gave him an honorable discharge. Now the majority of this court holds that he must be reinstated on active duty with back pay; and the majority goes further and intimates that he is entitled to promotion. I cannot accept these conclusions. I think the Air Force was entitled to discharge an officer who might refuse to obey a legal order and I find no prejudicial defect in the discharge proceedings.
The majority says “There is a disagreement in the record, . . . about the exact nature of the doubt expressed by VanderMolen. Appellant claims in his affidavit before the district court that he objected only to ‘the use of nuclear weapons on civilians,’ whereas the Summary of the Faculty Board Proceedings records a broader objection ‘to the release of nuclear weapons or CB agents.’ ” The majority speculates that “serious prejudice might have resulted” if VanderMolen’s position was mischaracterized by the Faculty Board. Assuming that there was a misstatement of the “exact nature” of the doubt, I cannot agree that there was prejudice. VanderMolen does not deny that he objected and continues to object to deployment of missiles against civilian population centers, and that because of his objection he was and still is disqualified from nuclear missile duty. Nor does VanderMolen or the majority question the policy of the Air Force, to discharge any line officer who seeks to limit or select the orders he will obey. Indeed, that policy cannot be successfully challenged; a soldier whose obedience to legal orders is qualified or selective has no place in the military. Accordingly, even if the Faculty Board had stated VanderMolen’s objections in narrower terms the Board of Inquiry would still have been obliged to recommend his discharge. He would still *629 have been disqualified from missile duty; he would still have been seeking to qualify his obedience to orders. The “exact nature” of the doubt prompting his disobedience was immaterial.
The purpose of the Faculty Board was only to inquire into VanderMolen’s qualifications for participation in the Missile Launch Officer’s Course. According to VanderMolen the atmosphere “throughout the entire counseling process” was one of “informality and good will”. [VanderMolen affidavit filed in District Court, J.A. 64] He has conceded that “The Administrative processing and handling of my case at Chanute was conducted as impartially and fairly as possible”. [VanderMolen letter responding to Notification of Selection to Show Cause for Retention, J.A. at 127,128] The Faculty Board concluded that Vander-Molen should be removed from the Missile Launch Officer’s Course, and he agreed. [Affidavit, J.A. 63]
Even if the Faculty Board proceedings were defective for failure to conform to the requirements of AFR 11-1, the full hearing afforded VanderMolen by the Board of Inquiry was sufficient to cure any errors. At the Board of Inquiry VanderMolen was represented by counsel and had the opportunity to call witnesses, and all the other rights provided by AFR 11-1. Moreover, before the hearing VanderMolen wrote to the Board of Inquiry explaining that he was opposed only to the destruction of civilian population centers. [J.A. 138-43] In his four-page single-spaced statement he fully explained his position, saying in part:
Based on my limited knowledge, I currently have no moral objections to their [nuclear weapons’] potential deployment against military installations, war goods producing factories, or other strategic targets.
However, I do morally object to the existence and deployment of any nuclear weapon system which has the primary objective of destroying essentially civilian population centers. The crucial factor is what the primary mission of a particular nuclear weapon is as stated in the pertinent war plan. Is the weapon constructed, designed, and targeted to effect destruction of a strategic factory in a large city but yet involving as few casualties as possible? Or is the weapon designed and targeted with the primary purpose being to destroy as many people as possible?
When confronted with these questions, my instructors at Chanute informed me that they had access to only limited information regarding the mission or design of the weapons which they controlled. They further stated that they could not determine the exact targets of their weapons. Therefore, they could neither confirm nor deny the possible deployment of nuclear weapons against civilian population centers.
This almost total lack of knowledge by experienced missile personnel plus various unclassified sources which alleged the existence of nuclear weapons programmed towards population centers plus the fact the U.S. did employ such weapons for that express purpose during World War II, were all contributing factors in my reservations concerning missile duty.
[J.A. 138-39]
There is no indication that the Board of Inquiry failed to consider or credit this explanation. Any misunderstanding of VanderMolen’s views was thus remedied. Antonuk v. United States, 445 F.2d 592, 597-98 (6th Cir. 1971); Nurnberg v. Froehlke, 489 F.2d 843, 848 (2d Cir. 1973). If Vander-Molen felt that further elaboration of his views was needed, he was free to appear before the Inquiry Board and explain. That he chose not to do so was his fault, not that of the Air Force.
In their zeal to find something wrong with the discharge proceedings, so that this officer may be returned to duty, the majority violates the sound and established principle that it is not the business of the courts to run the military. I dissent.
ON SUA SPONTE REQUEST FOR REHEARING EN BANC
Statement of TAMM, MacKINNON, ROBB and WILKEY, JJ.
In our judgment the majority opinion is wrong as a matter of law and will subvert *630 discipline in the armed services. For these reasons we have voted sua sponte to rehear this case en banc.