# Thomas B. Roelofs v. Secretary of the Air Force

> Court of Appeals for the D.C. Circuit · February 6, 1980 · 628 F.2d 594

URL: https://www.frixlaw.com/law-library/cases/9467012

## Case

- **Full name:** Thomas B. ROELOFS, Appellant, v. SECRETARY OF the AIR FORCE
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** February 6, 1980
- **Citations:** 628 F.2d 594; 57 A.L.R. Fed. 748; 202 U.S. App. D.C. 307; 1980 U.S. App. LEXIS 20789
- **Precedential status:** Published
- **Opinion:** Concurrence by Bazelon
- **Judges:** Bazelon, Leventhal, Robb, Leven-Thal
- **Cited by:** 45 later opinions in the Frix Law Library

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## Opinion text

BAZELON, Senior Circuit Judge,
concurring in the result only:
I join the court in upholding 12-25 of AFM 39-12, § C (“12-25”), and remanding this case to the Air Force for an explanation of appellant’s discharge rating. I do so, however, because I find 12-25 consistent with the Air Force’s duty to base the characterization of appellant’s discharge solely on the quality of his military service.
In Harmon v. Brucker, 1 the Supreme Court observed that the purpose in grading discharges is “to specify the character of service rendered during the period covered by the discharge.” 2 Unlike the decision to discharge a serviceman, which depends upon the likelihood of his serving effectively if retained, the characterization of a discharge depicts the nature of the service he has actually rendered. Thus, although a wide range of behavior (including pre-service and off-duty behavior) may be pertinent to a discharge decision, only those activities that have in fact affected the performance of a serviceman’s military *602 duties are relevant in describing the quality of his past service. 3
Paragraph 2-25 does not, in my view depart from these requirements. By creating a presumption that certain civilian convictions will ordinarily warrant an Undesirable discharge, 4 H2-25 simply reflects the Secretary’s judgment that such a conviction (and the conduct underlying the offense) is likely to have adversely affected the quality of an airman’s military service. 5 As Department of Defense statistics reveal, those responsible for grading discharges have not blindly followed this presumption. 6 And both Department of Defense and Air Force regulations expressly require the final characterization of an airman’s discharge to depend solely on his record of military service. 7 Paragraph 2 — 25 thus does not re *603 quire, nor should it be interpreted to permit, a less-than-Honorable discharge to rest upon conduct that has not affected the quality of an airman’s military service. 8
My disagreement with the majority lies in their refusal to apply this fundamental principle here, where Airman Roelofs received a General rating. The majority apparently concludes that an Undesirable rating requires a reason related to service performance; a General rating does not. I believe that neither of the majority’s premises for this conclusion is supported by the record or by precedent. First, the majority assumes that 12-25 draws a distinction between Honorable and less-than-Honorable discharge ratings, creating a presumption in favor of the latter upon evidence of a civilian conviction. 9 The fallacy of this assumption is made apparent by the very terms of H 2 — 25, for the regulation creates only a presumption in favor of Undesirable discharge ratings. 10 Secondly, the majority speculates that the stigma borne by a felon who receives a General rather than an Undesirable rating is not substantial enough to warrant judicial concern. 11 I can simply find no support for this proposition. Our cases have uniformly recognized that because 90% of all discharges are graded Honorable, anything less than an Honorable discharge is considered derogatory and can inflict both social and economic injury upon its recipient. 12 Further, the injury from a less-than-Honorable discharge is often entirely independent of the underlying reason for the derogatory characterization. 13
*604 The appropriate course, in my judgment, is therefore to remand this case to the Air Force to ensure that appellant’s discharge rating was based solely upon proper considerations. At his hearing before the Discharge Board of Officers, appellant presented evidence that his civil conviction — which stemmed from an arrest while he was off base, off duty, and out of uniform — did not adversely affect the quality of his military service. 14 In these circumstances, it is incumbent upon the Air Force to provide some justification for the characterization of his discharge as less-than-Honorable.
The Air Force nevertheless argues, and the majority suggests, 15 that in view of the much-publicized drug problem in the military, “it is inconceivable that [the Discharge Board] could not have found that appellant’s conviction and the circumstances surrounding the offense adversely affected the quality of his military service.” 16 It may be that appellant’s less-than-Honorable rating could be lawfully justified on this or some other basis. 17 But the Air Force has thus far failed to provide a reason for the characterization. 18 It is well-settled that a court must judge challenged agency action solely on the grounds invoked by the agency, 19 and neither counsel’s nor the court’s post hoc rationalizations can substitute for the agency’s reasons. 20 To enable meaningful review of the Air Force’s discharge decision 21 and to fulfill the requirements of 5 U.S.C. § 555 (e), 22 I therefore join the court in remanding this case to the Air Force.
. 355 U.S. 579 , 78 S.Ct. 433 , 2 L.Ed.2d 503 (1958).
. Id. at 583 , 78 S.Ct. at 436 (citing Army regulations).
. Significantly, the Supreme Court reversed this court’s decision in Harmon precisely for our failure to recognize this limitation. The majority opinion of this court had stated:
[I]f he can be discharged as a security risk, the Army can determine whether he is or is not a security risk. And in that determination surely no data is more relevant and material than are his past habits, activities and associations. . If it could make that determination, as admittedly it could, and upon that basis could determine whether a man was suitable for any service whatsoever, it could include that consideration among the factors to be considered in determining the value of his service and, consequently, in selecting the type of discharge to be given him.
Harmon v. Brucker, 100 U.S.App.D.C. 190, 197 , 243 F.2d 613, 620 (D.C. Cir. 1957). The Supreme Court accepted this court’s conclusion that preinduction activities were relevant in deciding whether to discharge a soldier, but the Court rejected the proposition that those same activities could be considered in selecting the type of discharge he is given.
The majority cannot successfully distinguish Harmon and succeeding cases from this appeal. See Maj. Op. at - of 202 U.S.App.D.C., at 597 of 628 F.2d. In Harmon , the Supreme Court reached its conclusion that discharge ratings must be based solely on a serviceman’s “records of military service” on statutory grounds, 355 U.S. at 583 , 78 S.Ct. at 435 , and the relevant statutes remain in force without substantive change. Compare 10 U.S.C. § 652 (1946) with 10 U.S.C. § 1168 (1976); compare 38 U.S.C. § 693h (1946) with 10 U.S.C. § 1553 (1976). See Stapp v. Resor, 314 F.Supp. 475, 478 (S.D.N.Y.1970); 1962 U.S.Code Cong. & Admin.News, pp. 2456, 2459. Subsequent cases thus uniformly recognize that the military’s statutory authority to issue derogatory discharges presumes those discharges will be based solely upon activities reflected in the serviceman’s military record. See, e. g., Kennedy v. Secretary of the Navy, 131 U.S.App.D.C. 39 , 401 F.2d 990 (D.C. Cir. 1968); Bland v. Connally, 110 U.S.App.D.C. 375 , 293 F.2d 852 (D.C. Cir. 1961); Doe v. Chafee, 355 F.Supp. 112 (N.D.Cal.1973); Stapp v. Resor, supra.
. “An airman discharged under this section should be furnished an undesirable discharge, unless the particular circumstances in a given case warrant a general or honorable discharge.” AFM 39-12, § C, li 2-25.
. Often, for example, the convicted servicemember will be forced to shorten or interrupt his tour of duty to serve prison time for his civilian offense. Even where the airman’s misconduct does not directly prevent him from continuing to perform his military duties, the nature of his criminal actions may often bear upon the character of his military service. Crimes committed while the servicemember is on duty or which involve the use of military facilities or supplies, for example, necessarily reflect adversely on his military record. In the present case, however, the Air Force has not in this record adduced any evidence that appellant’s conviction hampered his ability to serve effectively or interfered more generally with military affairs. See note 18 infra.
. See Maj. Op. page-of 202 U.S.App.D.C., page 598 of 628 F.2d.
. In 32 C.F.R. Part 41 (1978) the Department of Defense has provided “policies, standards, and procedures [to] govern the administrative separation of enlisted persons of the Armed Forces.” 32 C.F.R. § 41.1 (1978). Section 41.3 of these standards defines an administrative discharge characterization as “a determination reflecting a member’s military behavior and performance of duty during a specific period of service.” 32 C.F.R. § 41.3 (1) (emphasis added). A later provision requires “the characterization of service [in an administrative discharge to be] determined solely by the member’s military record during that enlistment or period of service.” 32 C.F.R. § 41.9 (b)(2) (1978) (emphasis added).
The Air Force’s own regulations contain parallel provisions. Paragraph 1-24 of AFM 39-12, § C, which serves as a guide for the application of II 2-25, requires the type of certificate issued upon administrative separation from the Air Force to be “determined solely by the member’s military record during [the current] enlistment or period of service.” And 11 1-22, entitled “Factors Governing Issuance of Honorable, General or Undesirable Discharge,” instructs *603 commanders to “consider all pertinent factors in each case to insure that the discharge accurately refiects the military record of the individual while a member of the Air Force.” AFM 39-12, § C, 1: 1-22 (emphasis added).
. Because 2-25 does not mandate an Undesirable rating in every case, it differs from military regulations that have been declared unconstitutional for failing to permit individualized determinations. See Crawford v. Cushman, 531 F.2d 1114 (2d Cir. 1976) (Marine regulation mandating discharge for pregnancy); Martinez v. Brown, 449 F.Supp. 207 (N.D.Cal.1978) (Navy regulation mandating discharge upon finding of homosexual conduct). Cf. International Harvester Company v. Ruckelshaus, 155 U.S.App.D.C. 411, 437 , 478 F.2d 615 , 641 (D.C. Cir. 1973):
Considerations of fairness will support comprehensive and firm, even drastic, regulations, provided a “safety valve” is also provided — ordinarily a provision for waiver, exception or adjustment, in this case a provision for suspension.
. Maj. Op. at-of 202 U.S.App.D.C., at 597 of 628 F.2d. The majority is not entirely consistent on this point, however. Compare id. (“[“ 2-25 creates] presumption that discharge will ordinarily be less than honorable.”) with Maj. Op. at - of 202 U.S.App. D.C. at 598 of 628 F.2d (“The case before us involves a general regulation establishing a presumption of an undesirable discharge . . .”).
. See note 4 supra.
. Maj. Op. at---of 202 U.S.App.D.C., at 598-599 of 628 F.2d.
. See Kauffman v. Secretary of the Air Force, 135 U.S.App.D.C. 1, 5 , 415 F.2d 991, 995 (D.C. Cir. 1969); Van Bourg v. Nitze, 128 U.S.App.D.C. 301, 302 , 388 F.2d 557 , 559 n. 1 (D.C. Cir. 1967); Bland v. Connally, 110 U.S.App.D.C. 375 , 293 F.2d 852, 858 (D.C. Cir. 1961). See also Giles v. Secretary of the Army, 475 F.Supp. 595, 602 (D.D.C.1979); Stapp v. Resor, supra, 314 F.Supp. at 478 ; AFM 39-12, § C, ¶ 1-22; Comment, Punishment of Enlisted Personnel Outside the UCMJ: A Statutory and Equal Protection Analysis of Military Discharge Certificates, 9 Harv.Civ.Rights-Civ.Lib.Rev. 227, 228-333 (1974); Lunding, Judicial Review of Military Administrative Discharges, 83 Yale L.J. 33 , 34-35, 43 (1974). As the court stated recently in Giles, supra:
It is well-recognized . . . that a general discharge carries with it a stigma with many harmful features, of an undesirable discharge. Not only is a person’s reputation injured and jeopardized, but employment opportunities are restricted, both in the public and private sector.
475 F.Supp. at 598 . Further, many states, including appellant’s home state of Texas, distinguish between Honorable and General discharge ratings in providing veterans’ benefits. See, e. g., Tex.Educ.Code Ann. § 54.203(a) (Vernon 1972 & Supp.1977) (exempting only honorably discharged veterans from tuition and fees at state institutions of higher education); Tex. Rev.Civ.Stat. art. 4413(31) (Vernon 1976) (providing employment preferences only to honorably discharged veterans).
. See, e. g., Tex.Rev.Civ.Stat. art. 4413(31) (Vernon 1976) (veterans benefits denied regardless of reason for less-than-Honorable discharge); Jones, The Gravity of Administrative Discharges: A Legal and Empirical Evaluation, *604 59 Mil.L.Rev. 1, 25 (1973) (significant proportion of employers in nationwide survey reported they automatically reject applicants with a General discharge).
. J.A. 24-26.
. See Maj. Op. at-n. 16 of 202 U.S.App. D.C., at 597 n. 16 of 628 F.2d.
. Brief for Appellee at 11-12.
. Appellee notes, for instance, that in addition to a civil court conviction, Roelofs had also been absent without leave for twenty days during his period of service. Brief for Appellee at 11 n. 11.
. As described by the majority, neither the Discharge Board of Officers nor the administrative review board offered any explanation for its actions.
. See, e. g., Burlington Truck Lines v. United States, 371 U.S. 156, 168-69 , 83 S.Ct. 239, 245-46 , 9 L.Ed.2d 207 (1969); SEC v.. Chenery Corp., 332 U.S. 194, 196 , 67 S.Ct. 1575, 1577 , 91 L.Ed. 1995 (1947).
. E. g., Matiovich v. Secretary of the Air Force, 192 U.S.App.D.C. 243, 251-52 , 591 F.2d 852 , 860-61 n. 20 (D.C. Cir. 1978); Van Bourg v. Nitze, supra, 128 U.S.App.D.C. at 309 , 388 F.2d at 565 .
. We have previously emphasized the need for administrative findings to permit meaningful review of military discharges. See, e. g., Matiovich v. Secretary of the Air Force, supra, 192 U.S.App.D.C. at 248 — 49, 591 F.2d at 857-58 ; Van Bourg v. Nitze, supra, 128 U.S.App.D.C. at 307-09 , 388 F.2d at 563-65 ; Davis v. Brucker, 107 U.S.App.D.C. 152 , 275 F.2d 181 (D.C. Cir. 1960); Olenick v. Brucker, 107 U.S.App.D.C. 5 , 273 F.2d 819 (D.C. Cir. 1959).
. See Maj. Op. at---of 202 U.S.App. D.C., at 599-600 of 628 F.2d.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9467012. Public record. Not legal advice.