Petition — Conaway v. Alexander

Court, U.S ~

FILED

JAN 2U 1979

#8-1145

IN THE SUPREME COUR

OF THE UNITED STATES OF GQHAAL RODAK, JR., CLERK

te

CAPTAIN JERRY D. CONAWAY,

Plaintiff/Appellant,

vs.

CLIFFORD L. ALEXANDER, Secretary cf the

Army; JAMES C. SMITH, Major General, Com-

mander, Fort Rucker, Alabama; LTC. NEAL

R. CHRISTENSEN; COL. CARL H. MCNAIR; LTC.

JOHN A. PHILLIPS, JR.; COL. CRAWFORD

BUCHANAN; LTC. DAN M. JANUTOLO,

Defendants/Appellees.

CIVIL ACTION NO.:

ON APPEAL FROM THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

CIVIL ACTION NO.: 77-3100

PETITION FOR WRIT OF CERTIORARI

Robert H. Ford

Attorney for Appellant

FORD, CALDWELL, FORD & PAYNE

Post Office Box 527

Huntsville, Alabama 35804

205/533-5030

John B. Crawley, Of Counsel

IN THE SUPREME COURT

OF THE UNITED STATES OF AMERICA

CAPTAIN JERRY D. CONAWAY,

Plaintiff/Appellant,

vs.

CLIFFORD L. ALEXANDER, Secretary of the

Army; JAMES C. SMITH, Major General, Com-

mander, Fort Rucker, Alabama; LTC. NEAL

R. CHRISTENSEN; COL. CARL H. MCNAIR; LTC.

JOHN A. PHILLIPS, JR.; COL. CRAWFORD

BUCHANAN; LTC. DAN M. JANUTOLO,

Defendants/Appellees.

CIVIL ACTION NO.:

ON APPEAL FROM THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

CIVIL ACTION NO.: 77-3100

PETITION FOR WRIT OF CERTIORARI

Robert H. Ford

Attorney for Appellant

FORD, CALDWELL, FORD & PAYNE

Post Office Box 527

Huntsville, Alabama 35804

205/533-5030

John B. Crawley, Of Counsel

TABLE OF CONTENTS

PAGE

Table OF Ceomeente . « 6 sis se & we elo «. &

Table of Authorities. . s-. «22s « sad

Official and Unofficial Reports of

Opiniones BOiGWs. & « + + 2 6 «+o 2 «ee « A

Statement or Grounds of Jurisdiction. . 1

Questions Presented for Review. .... 2

Provisions of Law Involved. ...... 6

Fifth Amendment to the Constitution

of the United States ....‘.« - « 6

28 U.8.Ci § geet? MASTe? «© se e «6G

10 U.S.C. § 1552(d) (1970) ....

10 U.S.C. § 1553 (1970). .... -~

The Administrative

Army

Statement

Argument.

§ 702 .

-C. § 704 .

-C. § 706.

Regulation 635-100 Section V

fer (Ba «© +

Procedure Act,

Regulation 623-105, 1-5(b).

Regulation 635-100,

of the Case

3-358. .

The Court of Appeals for the Fifth

Circuit, by affirming the opinion

~

PAGE TABLE OF AUTHORITIES

of the District Court, has ren- CASES PAGE

dered a decision in conflict in cehe ts. ttted

, ° ted States, 191 Ct.Cl. 89

several regards with other courts 423 F.2d 339 (1970) ae ec las seca é _ 28

of appeal in the United States

and also in conflict with the

United States Court of Claims.

25 Ashe v. McNamara, 355 F.2d 277, 281

? ee. Cee eee oa ee se ee el

The Court of Appeals for the Fifth

Circuit has, by affirming the

opinion of the District ong de-

cided an important question o

federal tae ane has not been de- poard 2° BEF Se ete aoe U.S.

cided by this Court, but should be :. 24 a4 Eas (a993) , 2706, 33

Gaciéel.:. «01s 3 eee eee ee i oe ea ea gt ig ee

Bland v. Connally, 293 F.2d 852 (D.C.

Gees EE os a es 8 ew ee

The Fifth Circuit Court of Appeals Ge oes States, 169 Ct.Cl.

has decided this case in conflict

Vi decisions of this 31 Bray v. United States, 515 F.2d 1383

OURS. « 6+ © Oe. F Flee ee SS: Pe ee a ere

a ed as ee Sa Ca a oe ae ae

APPENDTS: |... «le sk Hee Burns v. Wilson, 346 U.S. 137 (1953). . 30

Davis v. Stahr, 293 F.2d 860 (D.C.

EI rs ah a a a eT a a ee dere) le AO

Index to Appendix .....-+-+- 35

Dowler v. Schlessinger, 384 F.Supp.

in eens. - ~ «-» 2.6 # «.6 «&€-#. 6 OO

| Esgate v. United States, 186 Ct.Cl.

207, cert. denied 395 U.S. 913 (1968) . 28

Friedberg v. Resor, 453 F.2d 935 (2nd

Sh. + | rie cea ea renee

Goldberg v. Kelley, 397 U.S. 254 (1970) 32

Greene v. McElroy, 360 U.S. 474

ek ea ak a es ee ce ek ee ee

Hamlin v. United States, 183 Ct.Cl. 137,

Dene See Esc Seb, B43 (i968) . « « » « 29

-ii- -iii-

CASES PAGE CASES PAGE

Wisconsin v. Constantineau, 400 U.S.

See GET se se, ee Sa a ee ec ee

tn fee Geittitn, 413 0.8. 7iT, 720

[Serre wilt. a es he eee we 4 ee le 38

Joint Anti-Fascist Committee v.

McGarth, 341 U.S. 123, 183 (1951) ...

33 STATUTES, RULES and MISCELLANEOUS

Thea 207. &: 2s Vee «eae Ss aa SS

Jordan v. United States, 20. cr..Cl. 54

Pees ar a a an ae se ae ee we ow BD

Rule 19(b), Rules of the Supreme

Kenhans v. Callaway, 403 F.Supp. 290, Court of the United States... ..i«s« 2

Zoe Ae Ge SE. 6.36 oe Se ae ee vee 2B

Fifth Amendment to the Constitution

Lipp v. United States, 181 Ct.Cl. 355, of the United States. .......

F.2 l er ae oe a ee ee

04 o Ore (2967) > U.8.¢. § S52.

ee a ea ee ee ee ee ee es

Merson v. United States, 185 Ct.Cl. 48, 5 U.S.C

aon we eee eee GG kk ein we SO a a oe a ee se

Powers v. United States, 176 Ct.Cl. > UsBeSe SF 703. 6 6's wu we! Bee BRS

38 1 Ln See Sle ha tiga a eae ee eae aN

8 (1966) 2 ee Pe eee ; 10,17,25

Reed v. Frank, 297 F.2d 17 (4th Cir. 5

CR oS ar aS 6 og eugene oe a a

UemeG.. § 0G. le ol eid a« « ARES

Russell v. United States, 183 Ct.Cl. 40, U.8.C. § 159216) (S76). wee ee

rd Sn ee ag eg a Pg a a ow ie ee

( ) ay Uc 8.6. :.S: SSRRte) TESTS. co ko eS

Sims v. Fox, 505 F.2d 857 (1974). . .24,26

Me ee RL Se

Traux v. Raich, 239 U.S. 33, 35

Ce ee gee eg ee aloe ce ele ee

UNITED STATES ARMY REGULATIONS

United States v. Robel, 389 U.S. 258

a“ (1967). @ . . e . ° ° . . . . . © . .

33 AR G29°295, 2°S (BR). 5 sd es oe we BS

Walters v. United States, 175 Ct.Cl. AR 635-100 Section V, 5-13(g)(3). . . 4,12

215, 306 F.2G 957 (1966). « o/s «2 «© « 28

AR G35“i00; 3-56. . «6 els bs et we) RGR

Ward v. United States, 178 Ct.Cl. 210

(io) Fire Nar aie are ee oe ee ee ee ee

PETITION FOR WRIT OF CERTIORARI

OF1’ICIAL AND UNOFFICIAL REPORTS

OF OPINIONS BELOW

This petition is based on the opin-

ion of Judge Frank M. Johnson, Jr., Judge

for the United States District Court for

the Middle District of Alabama, delivered

August 1, 1977. There is no official re-

port of the opinion. The opinion is a

part of the record at pp. 1307 through

1315 of the record on appeal to the Fifth

Circuit Court of Appeals. This petition

for writ of certiorari is a prayer for re-

view of an opinion by the Fifth Circuit

Court of Appeals affirming Judge Johnson's

opinion. The Fifth Circuit's opinion is

dated October 23, 1978.

STATEMENT OF GROUNDS OF JURISDICTION

On October 23, 1978, the United

States Court of Appeals for the Fifth

Circuit affirmed the denial of relief for

-l-

the plaintiff based on the opinion of

Judge Frank M. Johnson, Jr., dated August

1, 1977.

This Court has jurisdiction to re-

view the opinion of the Fifth Circuit

Court of Appeals by writ of certiorari by

virtue of Title 28, §1254 and Rule 19(b)

of the Rules of the Supreme Court of the

United States.

QUESTIONS PRESENTED FOR REVIEW

Can the United States Army deprive a

serviceman of employment in his chosen

profession, label him guilty of criminal,

or quasi criminal activity, and deprive

him of the benefit of Army regulations

without affording him elementary due pro-

pane under the Fifth Amendment to the

Constitution of the United States?

Can the United States Army summarily

"convict" a serviceman of adultery and

theft through administrative channels

-2-

without affording the serviceman due pro-

cess of law as required by the Fifth Amend-

ment to the Constitution of the United

States?

Does the career serviceman have a

"liberty interest" to invoke due process

claims where derogatory information and

allegations of immoral or dishonest ac-

tivity adversely affecting his community

standing and future employability are

placed in his permanent military file and

become the basis for involuntary separa-

tion?

Is the expectation of continued em-

ployment in the United States Army by a

career officer a protected property in-

terest under the meaning of the Due Pro-

cess Clause of the Fifth Amendment to the

Constitution of the United States?

Is due process of law under the Fifth

Amendment to the Constitution of the

United States afforded in matters of ad-

ministrative discharge in the military

where such discharge is attended by alle-

gations of immorality and dishonesty?

Do civilian standards of due process

as announced by this Court and others ex-

tend to servicemen who are administrative-

ly discharged under.criminal or quasi

criminal activity?

Is Army Regulation 635-100 Section V,

5-14(g) (3) unconstitutional?

% Is the Army Board for Correction of

Military Records authorized by law to ap-

‘prove the violation by the Army of its

own regulations and thus validate a dis-

charge which is otherwise accomplished in

violation of the Army's own regulations?

Does the Army Board for Correction

of Military Records have exclusive au-

thority to interpret its own regulations

to the exclusion of the Court's authority?

SC, .

In the review of a decision of the

Army Board for Correction of Military

Records under the Administrative Procedure

Act or other applicable law, does the

plaintiff have the burden of proving that

the decision being reviewed was arbitrary

and capricious or should the decision of

the Board be reversed if "erroneous in

law" or violative of the individual's

constitutional rights?

| Can the Army's violation of its own

regulations in administrative matters or

involuntary separation procedures be

justified by reasoning that the outcome

would be the same even if the regulations

had been followed?

tion

PROVISIONS OF LAW INVOLVED

The Fifth Amendment to the Constitu-

of the United States:

No person shall be held to answer

for a capital, or otherwise infamous

crime, unless on a presentment or

indictment of a grand jury, except

in cases arising in the land or naval

forces or in the militia, when in

actual service in time of war or

public danger; nor shall any person

be subject for the same offense to

be twice put in jeopardy of life or

limb; nor shall be compelled in any

criminal case to be a witness against

himself, nor be deprived of life,

liberty, or property, without due

process of law; nor shall private

property be taken for public use,

without just compensation.

10 U.S.C. § 1552 (c) and (d) (1970):

(c) The department concerned may

pay, from applicable current appro-

priations, a claim for the loss of

pay, allowances, compensation, emol-

uments, or other pecuniary benefits,

or for the repayment of a fine or

forfeiture, if, as a result of cor-

recting a record under this section,

the amount is found to be due the

claimant on account of his or anoth-

er's service in the Army, Navy, Air

Force, Marine Corps, or Coast Guard,

as the case may be. If the claimant

is dead, the money shall be paid,

upon demand, to his legal representa-

tive. However, if no demand for

-6-

payment is made by a legal represen-

tative, the money shall be paid--

(1) to the surviving spouse,

heir, or beneficiaries, in the or-

der prescribed by the law applica-

ble to that kind of payment;

(2) if there is no such law cov-

ering order of payment, in the or-

der set forth in section 2771 of

this title; or

(3) as otherwise prescribed by

the law applicable to that kind of

payment.

A claimant's acceptance of a settle-

ment under this section fully satis-

fies the claim concerned. This sec-

tion does not authorize the payment

of any claim compensated by private

law before October 25, 1951.

(d) Applicable current appropri-

ations are available to continue the

pay, allowances, compensation, emol-

uments, and other pecuniary benefits

of any person who was paid under sub-

section (c), and who, because of the

correction of his military record, is

entitled to those benefits, but for

not longer than one year after the

date when his record is corrected

under this section if he is not reen-

listed in, or appointed or reappointed

to, the grade to which those payments

relate. Without regard to qualifica-

tions for reenlistment, or appoint-

ment or reappointment, the Secretary

concerned may reenlist a person in,

or appoint or reappoint him to, the

grade to which payments under this

section relate.

-7-

10 U.S.C. § 1553 (1970):

(a) The Secretary concerned shall,

after consulting the Administrator

of Veterans' Affairs, establish a

board of review, consisting of five

members, to review the discharge or

dismissal (other than a discharge or

dismissal by sentence of a general

court-martial) of any former member

of an armed force under the juris-

diction of his department upon its

own motion or upon the request of the

former member or, if he is dead, his

surviving spouse, next of kin, or

legal representative. A motion or

request for review must be made with-

in 15 years after the date of the

discharge or dismissal.

(b) A board established under this

section may, subject to review by

the Secretary concerned, change a

discharge or dismissal, or issue a

new discharge, to reflect its find-

ings.

(c) A review by a board established

under this section shall be based on

the records of the armed forces con-

cerned and such other evidence as may

be presented to the board. A witness

may present evidence to the board in

person or by affidavit. A person who

requests a review under this section

may appear before the board in person

or by counsel or an accredited repre-

sentative of an organization recog-

nized by the Administrator of Veter-

ans' Affairs under chapter 59 of

title 38.

The Administrative Procedure Act, 5

U.S.C. §§ 702, 703, 704 and 706:

§ 702

A person suffering legal wrong be-

cause of agency action, or adversely

affected or aggrieved by agency ac-

tion within the meaning of a relevant

statute, is entitled to judicial re-

view thereof. An action in a court

of the United States seeking relief

other than money damages and stating

a claim that an agency or an officer

or employee thereof acted or failed

to act in an official capacity or

under color of legal authority shall

not be dismissed nor relief therein

be denied on the ground that it is

against the United States or that the

United States is an indispensable

party. The United States may be

named as a defendant in any such ac-

tion, and a judgment or decree may be

entered against the United States:

Provided, That any mandatory or in-

junctive decree shall specify the

Federal officer or officers (by name

or by title), and their successors in

office, personally responsible for

compliance. Nothing herein (1) af-

fects other limitations on judicial

review or the power or duty of the

court to dismiss any action or deny

relief on any other appropriate legal

or equitable ground; or (2) confers

authority to grant relief if any

other statute that grants consent to

suit expressly or impliedly forbids

the relief which is sought.

§ 703

The form of proceeding for judicial

review is the special statutory re-

view proceeding relevant to the sub-

ject matter in a court specified by

statute or, in the absence or inad-

equacy thereof, any applicable form

of legal action, including actions

for declaratory judgments or writs of

prohibitory or mandatory injunction

or habeas corpus, in a court of com-

petent jurisdiction. If no special

statutory review proceeding is appli-

cable, the action for judicial review

may be brought against the United

States, the agency by its official

title, or the appropriate officer.

Except to the extent that prior, ad-

equate, and exclusive opportunity for

judicial review is provided by law,

agency action is subject to judicial

review in civil or criminal proceed-

ings for judicial enforcement.

§ 704

Agency action made reviewable by

statute and final agency action for

which there is no other adequate rem-

edy in a court are subject to judi-

cial review. A preliminary, proce-

dural, or intermediate agency action

or ruling not directly reviewable is

subject to review on the review of

the final agency action. Except as

otherwise expressly required by stat-

ute, agency action otherwise final is

final for the purposes of this sec-

‘tion whether or not there has been

presented or determined an applica-

tion for a declaratory order, for any

form of reconsideration, or, unless

the agency otherwise requires by rule

and provides that the action meanwhile

-16«

is inoperative, for an appeal to su-

perior agency authority.

§ 706

To the extent necessary to decision

and when presented, the reviewing

court shall decide all relevant ques-

tions of law, interpret constitution-

al and statutory provisions, and de-

termine the meaning or applicability

of the terms of an agency action.

The reviewing court shall--

(1) compel agency action unlaw-

fully withheld or unreasonably de-

layed; and

(2) hold unlawful and set aside

agency action, findings, and con-

clusions found to be--

(A) arbitrary, capricious,

an abuse of discretion, or

otherwise not in accordance

with law;

(B) contrary to constitu-

tional right, power, priv-

ilege, or immunity;

(C) in excess of statutory

jurisdiction, authority, or

limitations, or short of

statutory right;

(D) without observance of

procedure required by law;

(E) unsupported by substan-

tial evidence in a case sub-

ject to sections 556 and 557

of this title or otherwise

-ll-

reviewed on the record of an

agency hearing provided by

statute; or

(F) unwarranted by the

facts to the extent that the

facts are subject to trial de

novo by the reviewing court.

In making the foregoing determina-

tions, the court shall review the

whole record or those parts of it

cited by a party, and due account

shall be taken of the rule of prej-

udicial error.

Army Regulation 635-100 Section V,

5-14 (g) (3):

(g). The recommendations for elim-

ination received from commanders and

Headquarters, Department of the Army,

agencies will be reviewed in Head-

quarters, Department of the Army.

The following action may be taken:

(3) The recommendation may be

referred to an appropriate se-

lection board. The selection

board will consider the recom-

mendation for elimination and

all supporting evidence, the

overall record of the officer,

and the officer's statement to

determine whether he should be

required to show cause for re-

tention in the Army.

-12<

Army Regulation 623-105, 1-5(b):

(b). Reference will not be made to

punitive or administrative action

taken against an officer or to an in-

vestigation concerning an officer un-

less such action or investigation has

been processed to completion, adjudi-

cated, and final action taken within

the rated period. Should the officer

be absolved, comments pertaining to

the incident will not be included in

the report. The intent of this re-

striction is not to preclude or dis-

courage the inclusion by rating offi-

cials of verified derogatory informa-

tion on evaluation reports. It is

intended only to preclude the perma-

nent documentation in an officer's

official military evluation file of

charges or incidents of which he may

later be absolved and which, if in-

cluded, would be unjustly prejudicial

to him. To insure that acts or inci-

dents reflecting an officer's miscon-

duct, professional, or character de-

ficiencies, which occurred during the

reporting period, but the investiga-

tion of which had not been concluded

by the end of the reporting period,

are recorded in his official records,

the rater or the indorser, if the

rater has been reassigned, will sub-

mit, upon completion of an investiga-

tion or imposition of punitive ac-

tion, an addendum for attachment to

the previously submitted evaluation

report. The addendum will contain

the rater officer's complete name,

grade, SSN, and period of the evalu-

ation report; details of the act or

incident; and a summary of the find-

ings of the investigation and action

-13-

taken by the appointing authority.

If both the rater and indorser are

reassigned prior to completion of an

investigation involving the rated of-

ficer or the imposition on him of pu-

nitive action, the appointing author-

ity or the commander imposing the

punishment will inform the rater of

the results so that he can comply

with the above requirement. The ad-

dendum will be forwarded to the of-

ficer who reviewed the previously

submitted evaluation report for his

concurrence or further comment. Upon

completion and authentication of his

action, the reviewer will forward the

original addendum to HQDA (para 3,

app D for correct address) and a copy

to the rated officer. The reviewer

will indicate in his comments that a

copy was forwarded to the rated of-

ficer and the address to which it was

forwarded. If circumstances preclude

the reviewer from referring the ad-

dendum to the rated officer directly,

he may forward it to the rated offi-

cer through HQDA (see para 3, app D

for correct address).

Army Regulation 635-100, 3-58:

General. Officers on active duty

will be involuntarily relieved when

their degree of efficiency and manner

of performance or the needs of the

service require such action.

(a). Officer records will be

screened annually at Headquarters,

Department of the Army, by the CG

MILPERCEN; The Judge Advocate Gener-

al; Chief of Chaplains; or The

@14-

Surgeon General, to determine those

officers whose degree of efficiency

and manner of performance require re-

lief from active duty or elimination

from the service. These records will

be forwarded, without recommendation,

to the Department of the Army Active

Duty Board, or other desiynated board,

for consideration within the pre-

scribed guidance and criteria. Cases

of officers designated by the board

for release and elimination will be

considered for processing under AR

135-175 or NGR 20-6, immediately fol-

lowing their release from active duty.

(b). When budgetary or authoriza-

tion limitations require a reduction

of officer strength, a Department of

the Army Active Duty Board will be

convened to determine which officers

will be released from duty. Follow-

ing prescribed criteria, the CG

MILPERCEN; The Judge Advocate General;

Chief of Chaplains; and The Surgeon

General will forward officer records,

without recommendation, for consider-

ation by the board. Officers desig-

nated for release under this para-

graph are not considered ineffective

or substandard in duty performance.

Their release is dictated by the

needs of the service.

(c). The decision of these boards

is final.

(dad). Officers designated for re-

lease under this section may be re-

lieved from active duty on any date

between the date of notification and

the 90th day after receipt of notifi-

cation providing the release date is

=15<

mutually agreed upon by the individu-

al and the commander specified in

paragraph 3-60. The release date

will not be later than the 90th day

after receipt of notification by the

officer concerned. The officer will

not be released prior to the 90th

day without his consent.

(1) An officer who initiates

an evaluation report appeal under AR

623-105 or whose case is referred to

the Department of the Army Active

Duty Board by HQDA for reconsidera-

tion will continue to process for

separation as scheduled. If final

action on the appeal and/or the re-

consideration by the Board has not

been completed by the scheduled re-

lease date, the CG MILPERCEN will

direct the temporary suspension of

the officer's separation pending re-

ceipt of the outcome of the appeal/

reconsideration. If, after the orig-

inally scheduled release date, the

evaluation report appeal is denied

or the officer is again designated

for release, the release date will

not be later than 30 days from the

receipt of such notification by the

officer concerned.

(2) The statement in figure

3-3 will be completed and signed by

the officer concerned and placed in

his Military Personnel Records Jacket

(DA Form 201) as a permanent document.

(e). Officers who will complete 18

or more years of active Federal ser-

vice on their scheduled release date

will not be processed under this sec-

tion, unless such action is approved

-16-

by the Secretary of the Army, but

will be retained on active duty until

the last day of the month following

the month in which they complete 20

years of active Federal service.

(f). Release from active duty un-

der this section is involuntary;

therefore, release prior to the 90th

day after notification will have no

effect on entitlement to readjustment

pay. See rule l, table 4-4-8, DOD

Military Pay and Allowances Entitle-

ments Manual, concerning computation

of readjustment pay.

STATEMENT OF THE CASE

The basis for federal jurisdiction in-

voked by the plaintiff, Jerry D. Conaway in

the United States District Court of the

Middle District of Alabama was the Adminis-

trative Procedure Act, 5 U.S.C. §§ 702,

703, 704 and 706, the Freedom of Informa-

tion Act, 5 U.S.C. § 552, and the Fifth

Amendment to the Constitution of the United

States.

The appellant, Sgt. Jerry D. Conaway,

joined the United States Army in June, 1958,

at the rank of private. He served two

=17=

tours of duty in Viet Nam assigned to the

First Battalion, Fifth Artillery, First

Infantry Division, and later with the

164th Combat Aviation Group, First Avi-

ation Brigade. He has been awarded the

Bronze Star with V device, Bronze Star for

meritorious service, the Air Medal, —

Commendation Medal with first oak leaf

cluster, and the purple heart. He was

commissioned a second lieutenant of artil-

lery on July 6, 1965. In February, 1972,

he was stationed at Fort Rucker, Alabama

as a reserve officer (R. 2).

His service in the United States Army

has been characterized by loyalty, profes-

sionalism and devotion to duty throughout

his career as evidenced by voluminous let-

ters of appreciation as well as excellent

officer efficiency reports with the sole

exception of the final such report which

is part of the subject matter of this law-

suit.

-18-

-

On July 3, 1975, Carol Baumgardt, an

enlisted woman under the command of

Conaway, made a sworn statement accusing

Conaway of engaging in sexual relations

with her on two separate occasions, June

6th, 1975, and June 9th, 1975 (R. 972 -

973). There was contrary evidence includ-

ing two witnesses who saw Conaway at the

trailer in question on both occasions and

indicated that Conaway made no advances

toward Baumgardt. Further, Mrs. Jerry

Conaway states that on the occasion of

June 6, 1975, she had sent her husband to

Baumgardt's trailer to deliver some garden

vegetables (R. 935). However, on Monday,

July 7, 1975, Conaway was called in to the

C.I.D. office (Criminal Investigation De-

partment) and handed a sheet charging him

with adultery, unlawful cohabitation and

conduct unbecoming an officer. He was

photographed and fingerprinted. At this

time he decided to seek legal counsel

-19-

(R. 938). The record indicates that at

all times Conaway has denied the truth of

Baumgardt's allegations and at the time

this lawsuit was filed his verified affi-

davit was entered into the Court record

denying the charges (R. 16).

The record indicates that Ms.

Baumgardt had been promised that no action

would be taken against her for her state-

ments (R. 1046d) and had been promised and

actually received an early release from

the Army (R. 1046d). It had been her de-

sire to receive an early release for some

time and thus, the early release was a re-

ward for her statement (R. 975). The rec-

ord also reflects evidence of Baumgardt's

prior intent to blackmail Conaway for the

purpose of obtaining favorable work hours

(R. 975).

On July 3, 1975, Conaway was relieved

as Commander of the 43rd Company by the

-20=

Officer Christensen who rewarded Carol

Baumgardt for her statement.

On July 25, 1975, Col. Neal R.

Christensen issued an adverse officer ef-

ficiency report as a result of the alleged

incident. Although the report used the

term "fraternization," it is clear from

the record that the report was based on

the accusation of adultery made by

Baumgardt (R. 1006) .+ The record also

reveals that the Army Board for Correc-

tion of Military Records (ABCMR) recog-

nized the incident arose out of Baumgardt's

statement and not otherwise (R. 480).

1 The agent's investigative notes show the

following entry for July 17, 1975, approx-

imately two months before the August 22,

1975 polygraph test was given to Baumgaradt:

[Received] a call from Christensen,

who said that Conaway was going to

received (sic) a letter of reprimand

and a bad OER for this case and the

charge as was going to be reflected

in the letter would be "fraterniza-

tion" He said they wouldn't use the

charge of adultery.

-2l1-

Besides the use of the term "fraterniza-

tion," Christensen had also decided

Conaway's guilt before the investigation

was complete (R. 1006) .2

The officer efficiency report fur-

ther accused Conaway of using mess hall

food for a private party. Conaway denied

this charge in a sworn affidavit filed in

the record May 24, 1976 (R. 40).

On August 8, 1975, General William D.

Maddox, Jr. issued a letter of reprimand

based on the alleged adultery incident.

General Maddox did not mention the alleged

misuse of mess hall food (R. 19 - 20).

On April 5, 1976, Conaway received

notification that he had been selected for

release from active duty (R. 7).

2 army Regulation 623-105, 1-5(b) forbids

the reference to incomplete investigation,

which ‘apparently Colonel Christensen had

already decided to use regardless of the

outcome of the investigation.

-22-

Conaway was released on June 3, 1976,

just 59 days after his notification of

selection for release.

On the day of his release he was just

26 days short of having served 18 years in

the Army. 4

The plaintiff has never been given

adequate opportunity to rebut the charges

against him prior to the discharge and no

hearing has ever been afforded plaintiff

officer with regard to the dual charges

of adultery and theft which precipitated

his discharge.

By separate affidavits to the lower

court he has denied both the charges

3 army Regulation 635-100, 3-58(d) pro-

vides that an officer shall not be re-

leased prior to ninety (90) days from no-

tification of his release without his con-

sent.

‘ Army regulations prohibit an officer

who has served 18 years from being re-

leased under the provisions of AR 635-

100, 3-58.

-23-

involving adultery and those involving

theft. He has from the outset denied the

truth of both allegations.

Honorable Judge Frank M. Johnson,

Jr.'s opinion denying Jerry Conaway's re-

lief reasoned that the action did not in-

volve a valid due process claim under the

decision of the Court in Wisconsin v.

Constantineau, 400 U.S. 433 (1971), and

the decision of the Fifth Circuit Court of

Appeals in Sims v. Fox, 505 F.2d 857

(1974). He reasoned that this discharge

would not affect Conaway's good name or

standing in the community and that further,

Conaway had no "vested right" to continue

in the employ of the United States Armed

Forces (Slip. Op. at 4).

In a second portion of the opinion,

Judge Johnson reasoned that even if the

discharge was achieved in violation of

several Army regulations, the fact that

the Army Board for Correction of Military

-24-

Seq oO

Records had reviewed the case removed any

taint on the illegal discharge (Slip. Op.

at 6). In other words, the Army has the

power to pass its own illegal discharge

through its own "Board for Correction of

Military Records" and thus purify the vi-

Olations and remove the Court's jurisdic-

tion under the Administrative Procedure

Act. If true, the Army/Board for Correc-

tion of Military Records has the power to

override an Act of Congress, namely, the

Administrative Procedure Act, 5 U.S.C.

§§ 702, 703, 704 and 706.

ARGUMENT

I. THE COURT OF APPEALS FOR THE FIFTH

CIRCUIT, BY AFFIRMING THE OPINION OF

THE DISTRICT COURT, HAS RENDERED A

DECISION IN CONFLICT IN SEVERAL RE-

GARDS WITH OTHER COURTS OF APPEAL IN

THE UNITED STATES AND ALSO IN CON-

FLICT WITH THE UNITED STATES COURT

OF CLAIMS.

With regard to the applicability of

the Fifth Amendment to military

-25-

is

administrative discharge, there are at

lease three circuits in conflict as fol-

lows: (1) the District of Columbia in

Bland v. Connally, 293 F.2d 852 (D.C.Cir.

1961), and Davis v. Stahr, 293 F.2d 860

(D.C.Cir. 1961), holding that servicemen

should be afforded due process before

suffering derogatory administrative dis-

charges.

The Fourth Circuit has agreed with

the Fifth Circuit in denying due process

of law to servicemen who are the subject

of derogatory administrative discharges.

This posture is evident in the cases of

Reed v. Frank, 297 F.2d 17 (4th Cir.

1961), and Sims v. Fox, 505 F.2d 857 (5th

Cir, 1974).

The various circuits as well as the

United States Court of Claims are in con-

flict with regard to the extent of the

power which the law gives to the Army

Board for Correction of Military Records.

-26-

Specifically, there is conflict on the

issue of the burden which the plaintiff

carries in reversing the decision of the

Army Board for Correction of Military

Records in a federal court.

In the instant case the Fifth Cir-

cuit, by affirming Judge Johnson's opin-

ion in the District Court, has ruled that

the Army Board for Correction of Military

Records can condone or purify clear vi-

Olations of Army regulations and the plain-

tiff has no recourse but to prove that the

decision of the Army Board for Correction

of Military Records was arbitrary or ca-

pricious.

Apparently, the District of Columbia

Circuit is in accord with the Fifth Cir-

cuit in holding that to reverse the Army

Board for Correction of Military Records,

the plaintiff must prove that the actions

of the Board were arbitrary and capricious

and not just that the discharge sought to

=23J<

be voided was accomplished in violation

of Army regulations. Kenhans v. Callaway,

403 F.Supp. 290, 294 (D.D.C. 1975).

There are legions of cases in various

circuits as well as within the Court of

Claims of the United States which are in

direct conflict with these two cases as

follows: Bray v. United States, 515 F.2d

1383 (Ct.Cl. 1969); Dowler v. Schlessinger,

384 F.Supp. 39 (D.N.D. 1974); Esgate v.

United States, 186 Ct.Cl. 207, cert. denied

395 U.S. 913 (1968); Jordan v. United

States, 205 Ct.Cl. 54 (1974); Friedberg v.

Resor, 453 F.2d 935 (2nd Cir. 1971); Ashe

v. McNamara, 355 F.2d 277, 281 (lst Cir.

1965); Able v. United States, 191 Ct.Cl.

89, 423 F.2d 339 (1970); Merson v. United

States, 185 Ct.Cl. 48, 401 F.2d 184 (1968);

Lipp v. United States, 181 Ct.Cl. 355, 301

F.2d 674 (1967); Ward v. United States,

178 Ct.Cl. 210 (1967); Powers v. United

States, 176 Ct.Cl. 388 (1966); Walters v.

-28-

United States, 175 Ct.Cl. 215, 358 F.2d

957 (1966); Boland v. United States, 169

ct.Cl. 145 (1965); Hamlin v. United States,

183 Ct.Cl. 137, 141, 391 F.2d 941, 943

(1968); Russell v. United States, 183 Ct.

Cl. 802 (1968).

In other words, in these circuits,

the decision of the Army Board for Correc-

tion of Military Records will be reversed

if the discharge which it (Army Board for

Correction of Military Records) “refused

to change was itself illegal," due to

prior regulatory violations.

II. THE COURT OF APPEALS FOR THE FIFTH

CIRCUIT HAS, BY AFFIRMING THE OPIN-

ION OF THE DISTRICT COURT, DECIDED

AN IMPORTANT QUESTION OF FEDERAL LAW

WHICH HAS NOT BEEN DECIDED BY THIS

COURT, BUT SHOULD BE DECIDED.

The Fifth Circuit has in effect de-

cided that civilian standards of due pro-

cess do not apply to servicemen where the

-29-

tively under circumstances where the dis-

charge is stigmatizing and derogatory.

This Court has never defined the due pro-

cess rights of the serviceman in adminis-

trative matters.

In 1953, this Court, in Burns v.

Wilson, 346 U.S. 137 (1953), announced

that at a minimum the due process clause

of the Fifth Amendment protects military

personnel from "crude injustices" and

lack of "rudimentary fairness" in court

martial proceedings. This Court has never

pronounced the requirements of due pro-

cess when a serviceman is punished admin-

istratively under allegations of criminal

Or quasi criminal activity through admin-

istrative channels as opposed to the mil-

. itary criminal justice system.

The Fifth Circuit has in this case

decided that the serviceman has no "lib-

erty" interest to invoke the due process

-30-

i i

serviceman has been discharged administra-

clause of the Fifth Amendment where ad-

verse information is placed in his mil-

itary record. In effect, the Fifth Cir-

cuit has stated by this opinion that the

discharge of a serviceman under unproven

allegations of adultery and theft will

not affect his community standing or

foreclose employment opportunities so

long as the reasons for the discharge are

not announced publicly.

This Court should also decide the

subsidiary question of whether or not a

person's military file is sufficiently

public to require elementary due process

when a serviceman is discharged under al-

legations of criminal or quasi criminal

activity through administrative channels.

PEALS

III. THE FIFTH CIRCUIT COURT OF AP

HAS DECIDED THIS CASE IN CONFLICT

WITH APPLICABLE DECISIONS OF THIS

COURT.

-3l1l-

In the instant case the Fifth Circuit

has in effect held that the United States

Army can deprive the plaintiff, Jerry D.

Conaway, Of employment in his chosen pro-

fession, label him guilty of criminal or

quasi criminal activity and deprive him of

the benefit of Army regulations without

providing him with basic due process under

the Fifth Amendment to the Constitution

of the United States.

This conflicts with decisions of this

Court in Goldberg v. Kelley, 397 U.S. 254

(1970) and Greene v. McElroy, 360 U.S. 474

(1959).

The Fifth Circuit has decided by this

case that the presence of derogatory infor-

mation in a person's military file and the

subsequent punishment based on the same

derogatory information does not deprive the

plaintiff of "liberty" within the meaning

of the Fifth Amendment. This is in con-

flict with several decisions of this Court

=-32<

NaI a

including Board of Regents v. Roth, 408

U.S. 564, 571, 92 S.Ct. 2701, 2706, 33 L.

Ed.2d 548 (1972); Traux v. Raich, 239 U.S.

33, 35 (1915); In re: Griffith, 413 U.S.

717, 720 (1973); Greene v. McElroy, 360

U.S. 474 (1959); United States v. Robel,

389 U.S. 258 (1967); Joint Anti-Fascist

Committee v. McGarth, 341 U.S. 123, 183

(1951).

Respectfully submitted,

ROBERT H. FORD

Attorney for Appellant

FORD, CALDWELL, FORD & PAYNE

Post Office Box 527

Huntsville, Alabama 35804

205/533-5030

Of Counsel:

JOHN B. CRAWLEY

Attorney at Law

Post Office Box 426

Troy, Alabama 36081

205/566-2180

=33-

APPENDIX

-34-

INDEX TO APPENDIX

NOTIFICATION OF RELEASE FROM ACTIVE

DUTY

NOTIFICATION OF DENIAL BY ARMY BOARD

FOR CORRECTION OF MILITARY RECORDS OF

PLAINTIFF'S REQUEST FOR CORRECTION OF

RECORDS

NOTIFICATION OF REFUSAL BY ARMY BOARD

FOR CORRECTION OF MILITARY RECORDS TO

REMOVE OFFICER EFFICIENCY REPORT AND

LETTER OF REPRIMAND FROM PLAINTIFF'S

OFFICIAL MILITARY FILE

NOTIFICATION OF DENIAL OF RECONSIDER-

ATION OF PLAINTIFF'S REQUEST FOR COR-

RECTION OF MILITARY RECORDS

JUDGMENT OF UNITED STATES DISTRICT

COURT FOR THE MIDDLE DISTRICT OF

ALABAMA DATED AUGUST 1, 1977

MEMORANDUM OPINION BY JUDGE FRANK M.

JOHNSON, JR.

=35-

JUDGMENT OF UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT DATED

OCTOBER 23, 1978 AFFIRMING THE JUDG-

MENT OF THE DISTRICT COURT BASED UPON

THE OPINION OF DISTRICT JUDGE FRANK M,

JOHNSON, JR. DATED AUGUST 1, 1977

~ 36 =

DEPARTMENT OF THE ARMY

U.S. ARMY MILITARY PERSONNEL CENTER

200 STOVALL STREET

ALEXANDRIA, VIRGINIA 22332

REPLY TO ATTENT!ON OF: DAPC-OPR-PS

SUBJECT: Release from Active Duty

Captain Jerry D. Conaway, 509-40-3721, FA

U.S. Army Aviation Center

Fort Rucker, Alabama 36360

1. A Department of the Army Active Duty Board has conducted a

comprehensive and impartial review of your entire military record

under the provisions of paragraph 3-58a, Section XV, AR 635-100.

This section provides for the release of officers whose degree of

efficiency and manner of performance of duty require relief from

active duty or elimination from the service. The Board, after careful

deliberation, has selected you for release from active duty. All factors

were considered, including your efficiency ratings, comments on your

efficiency reports, schooling, commendations, and types and variety

of assignments. The Board’s determination is final.

2. The Department of the Army is aware of the impact that such

unscheduled releases have on an individual. Every assistance will be

provided to you in connection with your transition from military to

civilian life.

3. Your release from active duty will be accomplished on the 90th

day after you receive this notification provided it is not in

contravention with AR 600-31. You may request earlier release. Early

release will not affect your eligibility for readjustment pay if you are

otherwise qualified. Your local commander will provide any assistance

A-1

Or guidance you may require in this matter.

BY ORDER OF THE SECRETARY OF THE ARMY:

F. ROY SHIRLEY, JR.

Colonel, GS

Chief, Personnel Operations

Division

A-2

DEPARTMENT OF THE ARMY

U.S. ARMY MILITARY PERSONNEL CENTER

200 STOVALL STREET

ALEXANDRIA, VIRGINIA 22332

REPLY TO ATTENTION OF: DAPC-PSR-S

SUBJECT: Correction of Military Records

SGT Jerry D. Conaway

304 Meadow Lane

Enterprise, Alabama 36330

1. This is in further reply to your request for correction of your

Army records.

2. The Secretary of the Army has established administrative

procedures for the guidance of the Army Board for Correction of

Military Records. Under these procedures, an applicant must

establish sufficient basis for review of his application; otherwise, such

application may be denied.

3. Following examination and consideration of your Army records,

together with such facts as presented by you, the Board determined

on 20 October 1976 that insufficient evidence had been presented to

indicate probable material error or injustice. Accordingly, your

application was denied.

4. Inthe absence of new and material evidence tending to show the

existence of error or injustice in the military records, further

consideration by the Board is not contemplated.

BY ORDER OF THE SECRETARY OF THE ARMY:

MARY RUTH WILLIAMS

Colonel, GS

Deputy for Personnel Records

DEPARTMENT OF THE ARMY

OFFICE OF THE ASSISTANT SECRETARY

WASHINGTON, D.C. 20310

SFMR

Sergeant Jerry D. Conaway

304 Meadow Lane

Enterprise, AL 36330

Dear Sergeant Conaway:

| refer to your application for correction of military records wherein

you requested the removal of an officer efficiency report, and letter of

reprimand from your records and restoration to active duty as a

Captain.

The Army Board for Correction of Military Records may deny an

application if a sufficient basis for review has not been established.

After examining and considering your Army records and facts you

presented, the Army Board for Correction of Military Records

determined on 20 October 1976 that insufficient evidence has been

presented to indicate probable material error or injustice; accordingly

your application was denied.

In the absence of new and material evidence tending to show

existence of error or injustice in the military records, further

consideration by the Board is not contemplated.

Sincerely yours,

SF: Mr. Robert H. Ford Raymond J. Williams

Executive Secretary

Board of Correction

of Military Records

SFMR

Sergeant Jerry D. Conaway

304 Meadow Lane

Enterprise, AL 36330

Dear Sergeant Conaway:

Further reference is made to the correspondence of 24 November

1976, on your behalf, concerning the manner in which you were

released from active duty.

Information received from the United States Army Military Personnel

Center indicates that you were considered for release from active duty

by a Board that was appointed on 4 October 1974, rather than 15 April

1975, and that you have been furnished with a copy of the appropriate

letter of instructions.

The foregoing notwithstanding, a panel of members of the Army Board

for Correction of Military Records reconsidered your case on 19

January 1977. It was their unanimous determination that there was no

basis to justify a reversal of the original decision of the Board of 20

October 1976, which must be sustained.

Sincerely yours,

Raymond J. Williams

Executive Secretary

Board for Correction

of Military Records

CF: Mr. Robert H. Ford

1018 S. Burndidge Street

P.O. Box 426

Troy, Alabama 36081

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE

DISTRICT OF ALABAMA, SOUTHERN DIVISION

CAPTAIN JERRY D. CONAWAY, .

Plaintiff, )

)

VS. )

CLIFFORD L. ALEXANDER, Secretary) CIVIL ACTION NO. 76-33-S

of the Army; JAMES C. SMITH, )

Major General, Commander, Fort)

Rucker, Alabama; LTC NEAL R.)

CHRISTENSEN; COL. CARL H.)

McNAIR; LTC JOHN A. PHILLIPS, )

JR.; COL. CRAWFORD BUCHANAN; )

LTC DAN M. JUNATOLO, )

Defendants.

JUDGMENT

Upon consideration of the findings of fact and conclusions of law

made and entered herein this date and pursuant thereto, it is the

ORDER, JUDGMENT and DECREE of this Court that judgment be and is

hereby entered in favor of the defendants.

It is further ORDERED that all relief sought herein by plaintiff

Conaway be and is hereby denied.

It is further ORDERED that the costs incurred in this proceeding

be and are hereby taxed against the plaintiff, Conaway.

Done, this the lst day of August, 1977.

UNITED STATES DISTRICT JUDGE

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE

DISTRICT OF ALABAMA, SOUTHERN DIVISION

CAPTAIN JERRY D. CONAWAY, )

Plaintiff, )

VS. ) CIVIL ACTION ND. 76-33-S

)

CLIFFORD L. ALEXANDER, Secretary )

of the Army; JAMES C. SMITH, )

Major General, Commander, Fort )

Rucker, Alabama; LTC NEAL R.)

CHRISTENSEN; COL. CARL H.)

McNAIR; LTC JOHN A. PHILLIPS, )

JR.; COL. CRAWFORD BUCHANAN; )

LTC DAN M. JANUTOLO, )

Defendants.

MEMORANDUM OPINION

This case arises from the discharge from the United States Army

of then Captain Jerry D. Conaway. In 1975, Conaway had under his

command Private Carol Baumgardt, an enlisted woman. Conaway

brought disciplinary proceedings against Private Baumgardi,

whereupon she accused him of prejudice growing out of his personal

relations with her. In particular, she alleged that they had had sexual

intercourse. An investigation was launched by the Army. Two

witnesses confirmed having seen Conaway and Private Baumgardt

fraternizing: and Conaway himself admitted visiting her at her trailer - -

although he denied having had sexual relations with her. Eventually,

Private Baumgardt was given a lie detector test, which she passed. The

battalion commander concluded that the punishment that Conaway

had sought for Private Baumgardt was unwarranted by the offense

that she was alleged to have committed. As a result of investigation,

Conaway was relieved of his command.

An Officer Efficiency Report was prepared, which was

uncomplimentary to Conaway because of these incidents, and

forwarded to him for comment. It was then included in his record,

along with his comments. Subsequently a Letter of Reprimand was

prepared and forwarded to Conaway. He received it on August 13,

F-]

1975. He requested thirty days in which to draft a rebuttal but was

only given until August 22. The same request by his military legal

counsel was also denied. Upon review by the Army, the Letter of

Reprimand also went into Conaway’s record. Conaway appealed the

Officer Efficiency Report to the Special Review Board. The Letter of

Reprimand was appealed to the Suitability Evaluation Board. Both

appeals were denied. Thereafter, an Army Active Duty Review Board

selected him for release from active duty. Conaway was orally

informed of this March 5, 1976. He then went on leave and upon

returning refused to acknowledge prior receipt of notice. On June 3,

1976, he was released from active duty. He appealed to the Army

Board for Correction of Military Records (ABCMR), which denied the

appeal. A request for reconsideration was granted, but the ABCMR

ruled against Conaway again.

Conaway brings this action seeking reinstatement, 1/ back pay,

and invalidation of one of the Army’s regulations against Clifford L.

Alexander, Secretary of the Army; James C. Smith, Major General,

Commander, Fort Rucker, Alabama; LTC Neal R. Christensen; Col. Carl

H. McNair; LTC John A. Phillips, Jr.; Col. Crawford Buchanan; and LTC

Dan M. Janutolo. He asks in his brief that his file be corrected, but

there is no such prayer in his complaint, and consequently this matter

will not be addressed. His contentions may generally be divided into

three areas. First, he contends that the Active Duty Board which

released him from the service did so in an unauthorized manner.

Second, he alleges numerous violations of regulations in his release

and in the manner in which the reprimand and efficiency report were

included in his file. Third, he attacks the Army regulation which

permitted his discharge without a hearing. The case is now submitted

upon cross motions for summary judgment. As authorized by Rule

52(a), Federal Rules of Civil Procedure, the appropriate findings of fact

and conclusions of law are incorporated in this memorandum opinion.

The initial question for consideration is that of jurisdiction. The

Secretary maintains that the principle of sovereign immunity prevents

the Court from reviewing this case. This is without merit. Harmon v.

Brucker, 355 U.S. 579 (1958), upheld the power of a district court to

review a military discharge which is alleged to be contrary to a statute.

It has also been held that a district court may review an alleged

violation of the military's own regulations. Feliciano v. Laird, 426 F.2d

424 (2d Cir. 1970); Smith v. Resor, 406 F.2d 141 (2d Cir. 1969); See

Mindes v. Seaman, 453 F.2d 197 (5th Cir. 1971). It is true that litigation

1/__— He seeks reinstatement as a captain. He has re-enlisted and is

Currently serving as a sergeant.

F.2

must not be permitted to “stop government in its tracks,” Ogletree v.

McNamara, 449 F.2d 93, 100 (6th Cir. 1971), but reinstating one

officer certainly would not do that. See Harmon v. Brucker, supra.

There are limits on the power of federal courts to review the

internal affairs of the military other than sovereign immunity. In

Mindes v. Seaman, supra, the Fifth Circuit said that some military

matters are nonreviewable. First, the Court should consider the

“nature and strength of the plaintiffs challenge to the military

determination.’ Constitutional claims generally rank higher than

statutory or reguanvory gnes, and claims with the same legal base may

be of differing values.2/ With regard to the strength of the claim, “{aln

obviously tenuous claim of any sort must be weighted in favor of

declining review.” Id. at 201. Second, the Court should consider the

potential injury to the plaintiff. Third, the “type and degree of

anticipated interference with the military function” must be

considered. And fourth, the Court should take into account the “extent

to which the exercise of military expertise or discretion is involved.”

Because the “strength” of the claim is a consideration, the

determination of reviewability, as articulated in the Mindes decision, is

apparently intertwined with the merits. Consequently, the merits will

be addressed initially.

Conaway’s first major contention is that the Army Active Duty

Review Board which released him did so in an unauthorized manner.

The Army insists that Conaway was released under the provisions of

Paragraph 3-58a of Army regulation 635-100. This provides for the

qualitative release of officers. Conaway contends that the Letter of

Instruction to the Board only permitted releases under Paragraph

3-58b, providing for quantitative releases. Further, he contends that

the letter only authorized the consideration of reserve officers in the

year groups 1967 through 1970. Captain Conaway was in the 1966

group. However, Conaway’s position is based on information provided

him by the Army under the Freedom of Information Act. The Army now

states that Conaway was provided with the wrong Letter of Instruction.

The Board which considered Conaway’s release was actually

appointed by a Letter of Instruction which authorized it to act under all

the provisions of paragraph 3-58. And it was to consider, among other

matters, the release of “other than Regular Army officers,” not limited

to any year groups. Thus it was entitled, to consider Conaway for

2/ As an example, the Fifth Circuit pointed out that a constitutional

challenge to a court-martial was of more weight under this analysis

than a challenge to a haircut regulation. See Mindes v. Seaman, 453

F.2d 197 (5th Cir. 1971).

F-3

release. Conaway produces no evidence that the Army's explanation,

including the sending of the wrong Letter of Instruction to Conaway, is

untrue. Consequently, the claims regarding the Letter of Instruction

are without merit.

A second major claim by Conaway is that the Army violated the

Due Process Clause of the Fifth Amendment by releasing him from the

service without a full hearing.3/ In order to assert a contention of

deprivation of property in violation of due process, an entitlement to

the property must be shown. Board of Regents v. Roth, 408 U.S. 564

(1972). A personal expectation is insufficient. Id. Conaway has made

no showing of entitlement to his position in the Army. In fact, 10 U.S.C.

§ 681(a) provides that “the Secretary concerned may at any time

release a Reserve under his jurisdiction from active duty."4/ A

discharge involving an attack on the person’s good name may be a

deprivation of a liberty interest. Wisconsin v. Constantineau, 400 U.S.

433 (1971). But there has been no showing that any action by the Army

will harm Conaway’s good name, as the Army did not publish the

reasons for the release, and did not plan to do so. All publicity with

regard to this matter has come about through Conaway’s efforts. The

Fifth Circuit, sitting en banc, decided that the discharge of a reserve

officer on active duty in the Air Force did not involve a due process

interest. Sims v. Fox, 505 F.2d 857 (1974). It said that “one has no

vested right to continue in the employ of the United States Armed

Forces.” Id. at 861. No reason was shown on the discharge in the Sims

case, so the serviceman’s interest in his good name was not affected. Id.

Thus he was not permitted to assert a due process claim to a hearing

before discharge. The Sims case seems controlling here.

Conaway’s other major claim is that a number of regulations

were violated during the course of events involved in this case. The

principal one involving his release is that he was discharged too early.

Under AR 635-100, 3-58d, an officer may not be discharged until the

ninetieth day after he receives notice. Conaway was released June 3,

1976. He acknowledged written notice on April 5, 1976, and contends

that this was the only notice that he received that satisfied the

requirement of the regulation. However, the Army avers that Colonel

3/ Plaintiff attacks the constitutionality of AR 635-100, Section V,

5-14 (a) (3), for failing to make such a provision. In the latest Army

regulations, as provided to the Court, there is no 5-14 (a) (3).

Presumably Conaway has reference to 5-14 (c) (3).

4/ There are exceptions to this, but none are applicable here, and

plaintiff makes no such allegation.

F-4

Courtney orally notified Conaway on March 5, 1976, ninety days

before his discharge. Conaway admits in his complaint that he was

Orally notified by Colonel Courtney, and does not dispute that this

event occurred on March 5. The regulation does not say that notice

must be in writing, and Conaway makes no showing that the Army's

interpretation of its own regulation is incorrect. And the Army should

be the “primary authority for the interpretation of its own regulations.”

Hodges v. Callaway, 499 F.2d 417 (5th Cir. 1974).

Conaway’s other contentions about regulatory violations involve

the procedure which was followed by the Army prior to consideration

of his case by the Board for Correction of Military Records. Conaway

maintains that reference is made in his record to an incomplete

investigation.°/ He states that he was not sent an addendum

containing the findings of the investigation.6/ He further maintains

that there is no notation on the Letter of Reprimand that AR 600-37

was complied with.’/ And he says that the requirement of fair and just

standards contained in AR 600-37 (1-3) was violated. He contends

that he was not given an adequate opportunity for rebuttal to the

Letter of Reprimand, and that two forms are not in his file that should

be.8/ Finally, he says that he was not notified that he had been

recommended for elimination so that he could file rebuttal.9/ These

alleged regulatory violations are advanced in support of the claim that

he is entitled to reinstatement. Because of the conclusion reached

below, it will be unnecessary to consider the accuracy of either

Conaway’s factual allegations or of his interpretation of the

regulations.

of Reprimand “were conceived and implemented before any

investigation was completed.” He asserts that this violates 1-5b of AR

623-105.

6/ Conaway contends that this failure violated AR 623-105 (1-5b).

-7/ Conaway says that this failure violated AR 600-37 (2-3h).

8/ There is no form signed by him stating that he has read and

understands the charges and either does or doesn't submit a

statement. According to Conaway, this is contrary to AR 600-37 (2-6).

He also says that form 635-100 (3-3) was not placed in his file as AR

635-100 (3-58d2) requires, prior to inclusion of derogatory remarks.

9/ This is alleged to violate A". 635-100, Section V, 5-14.

F-5

Plaintiff's basic attack is upon the fairness of the process by

which it was determined that he would be discharged. In particular he

cites regulatory violations in the way that the record was compiled.

However, he points to no violations in the manner in which the Army

Board for Correction of Military Records conducted its review. The

Board had the power to correct a violation of Army regulations, Hodges

v. Callaway, 499 F.2d 417 (5th Cir. 1974), and considered itself as

sitting to correct “probable material error or injustice.”10/ It

considered the propriety of the adverse Officer Efficiency Report and

of the Letter of Reprimand, and of Conaway’s release. It found that

they were justified.11/ Had the Board concluded that there was

injustice, it could have prevented the discharge and corrected

Conaway’s records. See Hodges v. Callaway, supra. Thus, even

assuming that the Army procedure failed to strictly follow the

regulations in earlier stages, the existence of a fair procedure,

consistent with the regulations, before the Board for Correction of

Military Records, removed any taint on the discharge. A discharge .

ordered under a procedure contrary to the regulations might be set

aside. But where a determination has been made, consistent with the

regulations, that a discharge is proper, then the discharge should not

be subject to attack because there have been similar findings made

under procedures which weren't consistent with the regulations.

Conaway also contends that he was judged by an unfair

Standard, and, therefore, the Army acted unreasonably in discharging

him. In Knehans v. Callaway, 403 F. Supp. 290 (D.D.C. 1975), it was

held that it is necessary to find that the Army Board for Correction of

Military Records acted unreasonably in not overturning an honorable

discharge before the court may interfere. It stated that “in order to

grant plaintiff's requested relief, it is not enough to find that the

Selection Boards violated Army regulations; the plaintiff must further

show that the ABCMR acted arbitrarily and capriciously in failing to

correct the error...” Id. at 294. The records presented here clearly

reflect there was sufficient evidence before the ABCMR from which it

could have concluded that Conaway had shown a serious lack of

judgment which justified his discharge. It was, therefore, reasonable

for it not to overturn the discharge, even assuming that some

regulations had been violated in the earlier consideration of the

matter.

10/ See page 144 of the Appendix.

11/ See Appendix 125, 144.

F-6

The second consideration is the potential injury to the plaintiff if

review is refused. Conaway has re-enlisted and is now a sergeant. The

difference between this position and that of cajitain is considerable,

and Conaway, therefore, has a strong interest in review in this case.

The third consideration is anticipated interference with the military

function. There will be some interference, but this is always the case

when review is granted. Mindes v. Seaman, supra. The final

consideration is the extent to which the exercise of military discretion

is involved. This is not a major factor here. Conaway’s claims are

probably strong enough, when combined with the potential injury to

him if review is refused, to support review in this case. However, if the

merits were reached, the Army would still be entitled to prevail.

A judgment will be entered in favor of defendants and against

the plaintiff.

Done, this lst day of August, :977.

UNITED STATES DISTRICT JUDGE

F-7

DO NOT

PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 77-3100

CAPTAIN JERRY D. CONAWAY,

Plaintiff/Appellant,

versus

CLIFFORD L. ALEXANDER, Secretary of the Army, ET AL.,

Defendants/Appellees.

Appeal from the United States District Court for the

Middle District of Alabama

(OCTOBER 23, 1978)

Before JONES, AINSWORTH and HILL, Circuit Judges

PER CURIAM:

Affirmed on the basis of the opinion of the District Judge Frank

M. Johnson, Jr., dated August 1, 1977.

AFFIRMED.