Petition for Writ of Certiorari — Cowhig v. Stone

Supreme Court brief1993

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Text

93-200 ree

No. . ;' :

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1993

EDWARD D. COWHIG,

Petitioner, Pro Se

Vv.

MICHAEL P. W. STONE,

Secretary of the United States Army, Et Al

Respondents/Defendants

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Edward D. Cowhig, Pro Se

245 C.J. Cushing Highway

Greenbush, MA 02040

(617) 545-4330

QUESTIONS PRESENTED

1. Is the force of Statutory Law (10

U.S.C. 3785, now 1185) governing Regular

Army officers in the case of separation or

elimination from such service as in this

case at bar to be upheld and controlling in

the presence of a possibly conflicting

article in the Code of Federal Regulations

[32 C.F.R. 65.4(b) (ii) } granting

ecclesiastical endorsing agencies authority

to be able to withdraw an _ ecclesiastical

endorsement, while at the same time [32

C.F.R. 65.4(b)(v)] states that to be

considered for D.0O.D. recognition each

religious faith group shall; (v) abide by

the applicable regulations and policies of

the Department of Defense?

2. Is not the failure to abide by the

applicable regulations and policies of the

Department of Defense, statutory law and

Army regulations on the part of the Chief

of Chaplains’ office in 1961 which would

have provided this plaintiff, then a

Regular Army officer, with at least an

opportunity to face his accusers, at least

some semblance of due process at that time,

and in addition to the subsequent loss,

destruction, suppression of the essential

accusatory document indicative of

recklessness, bad faith and an abdication

cf duty?

3 Are not the ex parte

communications between the Chief of

Chaplains’ office and officials of the

Military Ordinariate (now the Archdiocese

for Military Services, U.S.A.) in 1961

iii

indicative and support the charge of

collusion and recklessness, violative of

this pukithouse*s constitutional and

statutory rights?

4. Is not the present and

long-standing absence to 1993 of the

original fundamental accusatory document of

1961 and the supposed author’s written

denial of such authorship along with all

lower administrative agencies and judicial

tribunals’ failure to address the basic

issue of authenticity thereof when it was

challenged and the presence of fraud,

concealment thereof in a pattern of

obstruction and evasion, indicative of bad

faith, recklessness, and violative of

constitutional rights’ of freedom of

exercise of religion, due process, the

right to be free from arbitrary seizure of

property and liberty, as well as the

PrN d yee Le

Hs a Nieed Le Oe eS,

denial of "equal protection under the

laws?"

5. Do not the Federal Rules of

Evidence require the original of a document

(1002), certainly when there is a question

as to authenticity thereof (1003) and in

the present circumstances where a primary

defendant denies legal responsibility for

custody and attempts to shift such to

another party when put on notice (1004)?

6. Does not the loss, suppression or

destruction of a document addressed to the

Chief of Chaplains, U.S. Army, hence

official, preclude the admissibility of a

duplicate and indicate bad faith in the

resent case, especially when the notes of

Committee of the Judiciary, House Report

No. 93-650, in approving Rule 1004(1) in

the form submitted to Congress asserted;

“However the committee intends that loss or

destruction of an original by another

person at the instigation of the proponent

should be considered as tantamount to loss

or destruction in bad faith by the

proponent himself?"

7. Is not the collusion between a

governmental enterprise and an

ecclesiastical enterprise and the

concomitant exclusion of this petitioner,

as a charged party, to essential accusatory

documents accompanied by intimidation and

threat, an obstruction of justice, a

deprivation of civil rights under color of

law, a violation of constitutional and

statutory rights, especially as and when

this petitioner was performing his Regular

Army duty in a foreign country under

hazardous conditions, in an exemplary

manner, and

constrained by top-secret military

classifications? Is this fair?

8. Can the statute of limitations

hold in the face of fraud, concealed fraud

and the ongoing attempt to obstruct justice

by foisting custodial responsibility for

essential evidence to another party while

that other party refuses to deny

responsibility until 1988, well within the

four year limitations period for RICO? Can

the absence of reasonable diligence be

maintained in such a situation?

9. Is it fair to hold res judicata

net only in the presence of fraud, but also

the presence of false certification as in

the history of this present case, while the

delayed brief of this petitioner is

declared "moot" and no consideration is

given to the obstruction tactics cf the

—s4

vii

government in withholding essential

evidence thereby denying this petitioner

the opportunity to face his accusers and

defend himself?

10. Cannot the actions, behavior and

conduct of military and medical personnel

in regard to this petitioner, some of whom

challenged his very vocation as merely self

interest, especially in 1961 while he was

in a very critical situation in southeast

Asia, be regarded as an infringement of

conscience and violative of the First

Amendment ’s quarantee of the “free

exercise" of religion "especially when this

petitioner, with "Top Secret" information

unknown to medical people and supervisory

chaplains was operating in accord with the

Code of Federal Regulations (C.F.R.),

Department of the Army (D.O.D.) 510.1 which

state in regard

viii

to private ministrations and ordinances

"Chaplains will administer or arrange for

rites and sacraments for military personnel

and civilians under military jurisdiction

according to the respective beliefs and

conscientious practice of all concerned (RS

1125; 10 U.S.C 238)(16 FR 12931, Dec. 7,

1951)?

11. Does the history of this case and

the behavior of the courts below warrant a

relief from judgment or order under Rule

60(b) when as the Rule states: "On motion

and upon such terms as are just, the court

may relieve a party...from a final judgment

order or proceeding for the following

reasons: (3) fraud; misrepresentation, or

other misconduct of an adverse party; (6)

any other reason justifying relief from the

operation of the judgment?"

5 NAR RYE SINCERE ERY maa

12. The respective beliefs and

conscientious practice of the Catholic

Church obliges its priests by pastoral

theology and Canon Law to be highly aware

of the "signs of the times" and more _ than

ordinarily involved in the sacraments of

Confession (Pennance, Reconciliation) and

the last rites when its people, in this

case the "troops," are "2a periculo

mortis?" Was not this the situation and

set of circumstances which prevailed in

Southeast Asia in 1961, as this

petitioner’s parachute unit was alerted

twice to jump into Laos?

eee

OTHER PARTIES

Chief of Chaplains; Surgeon General;

Chief, Legislative Liaison Office; ABCMR;

all of U.S. Army; the Archdiocese for

Military Services, U.S.A.; Respondents.

Questions Presented

Subject Index

Table of Authorities

Cases Cited

Other Authorities

Reference to Official Reports

Text

i-x

xi-xviili

xix-xxii

xxi

XX1i

xxii

1-65

SUBJECT INDEX

Text Page

Fraud 2, 40, 51, 53, 58, G3

After Discovered Fraud 43, 44

Concealed Fraud (Fraudulent

Concealment) 2, 6, 33, 3S

"Due Process" ay Be 3-8

"Free Exercise" 2, 6, $2

Obstruction 2, 45

Adequate Notice 4

Opportunity to Present Evidence 4

Regular Army Commission 4, 10, 17, 19, 43

Reputation 43, 65

"Equal Protection-14th Amendment 4, 42

Religion 5, 10, 14, 17, 43, 60

Bad Faith (App. 26, 27) 5

Lawlessness 5, 17, 18

Oversight S, 17, 348, 32

xii

Attempt to Obstruct 8, 33-37, 45, 46, 59

Recklessness 3, 17, 63

Diligence 5, 21, 27, 42, 64, 59, 60

RICO(18 USC 1961 Et Seq) (App.408-409) 42,59

Military Intelligence (App. 249)

Church and State 5, 30, 64

Contempt of Congress 9, 8, 9, 10 ,11

Arrogance 5

Ignorance 5

Top Secret 6, 14, 29

Recently Discovered Evidence 6, 28, 38, 46

(App. 337-345; 355-360) 63

Rule 60 F.R.C.P. 6, 46, 52, 56, 58, 59

Rule 59 40, 46, 52, 57, 58, 59

Strict Scrutiny 7, 42

Denial of Access 4» kay 12, 17

Original Document 7, 23, 39, 45, 55, 56

Authenticity of Document 7, 8, 21, 60, 61

Denial by Putative Author (App.196-226)7,21

Injury 7, 65

xiii

Government Files (No Document)

ABCMR 8S, 9, 13, 22,

Senator Tsongas

Congressman Studds

Military Ordinariate (Archdiocese)

Congressman Moakley

Congressman Mavroules

Senator Edward Kennedy

Lt. Gen. Paul W. Caraway 9, 11, 15,

(App. 226)

No Original Document 10, lil,

Copy of Caraway (1961) Document 10,

Speaker T. P. O’Neill

Cardinal Spellman

Speaker John W. McCormack ll,

Misrepresentation oa, 45,

Security Clearance

FBI

Addressee of Document

xiv

Chief of Chaplains 13, 25, 29, 30, 62

(App. Last 2 Folded Pages)

Involuntary Resignation 13

Cardinal Cushing 13

Diligent Efforts 15, 42, 55, 56

(Entire Appendix)

Partial Extracts 13

Archdiocese for Military Service 13, 60

No Show Cause Hearing 14

No Opportunity to Rebut 14

Ct. Claims (1980) 14

Certification of Official File iS, 22, €6

Judge Nichols 14, 15

Moot 15

10 U.S.C. 3785 (1974) (App.1) 13, 16

Judicial Error 16

Res Judicata 16, 19

False Certification 16

F.R.C.P. 44(b) (App. 1) 16

Constitution

32 C.F.R. 64.4(b)(v)(ii) (App. 413, 414)

"Proximate Reason" (App. 374) 19,

Judge A. Caffrey

Prejudice 19, 36,

Appeals Court

Statute of Limitations

Official Military Personnel File

De Novo Hearing (1983)

Majority (ABCMR) Conclusion 23,

Unjust

Prin. Dep. Asst. Sec. Army 24, 25,

Col. (Ret.) R.E. McMahon (App. 2-9) 26,

(App. 251-260)

Col. (Ret.) C.B. McCoid (App. 19-20) 27,

(App. 277-260)

Dr. G.E. Roark, (App. 19-20) 28,

(App. 227-229)

XxV1

New Medical Testimony (1991) 28, 44, 47

(App. 20-24; 337-345; 353-360)

Clark Clifford 29

President Eisenhower (App. 24)

President Kennedy 29

Evidence Rejected List (App. 225) 33-37

RAD-Removed From Active Duty 30

(App. Folded Pages)

Judge P. Higginbotham 31

Judge Ruth B. Ginsburg 31

Judge W. Rehinquist 31

Judge W. Schwarzer 32

Judge W. Young 38, 40, 41

Judge F. Frankfurter 39

Chevron Doctrine 41

Rule of Equity 43, 44

No Official Notice 44, 45, 58

Denial of Legal Custody (App. 425-426)

Legal Custody 45

Judge Wolf 38, 46, 50, 57, 58

xvii

Alcoholism

Dr. Roark (1986)

Dr. Rohde (1985)

Col.(Ret) R.E. McMahon (1985) App.

Col. (Ret) C.B. McCoid (1985)

I. Hurwitz, Ph.D.

Dr. L. Clark (1985)

Dr. Kadarauskas (1985)

Dr. J. Dowling (1986)

Dr. R. Kilfoyle (1985)

Dr. Roark (10/18/91)

Dr. J. Day (10/31/91)

Lt. Col.(Ret) T. Kelly

(App.

Companion Case (91-2027)

Theory of Recovery

Bishop Roque

Bishop Dimino

RICO Suit

Extraordinary Writ

47, 48,

346-352)

53,

227-229

230-241

251-260

277-282

293-314

315-317

318-325

326-329

330-334

337-345

353-360

50, 56

55, 64

xviii

Post Judgment Motion

Procustes (App. 33)

False Conveyance 54,

Attempt to Obstruct (USC 1503,1505)

Liberty and Property

Rules of Evidence (App. 25-29;419-420)

C.1.D.

Extraordinary Writ

Failure of Private Association

Performance of Duty ats

(App 251-260; 277-282)

Joint Tort Feasors

"No A or N"

Writ of Mandamus

xix

TABLE OF AUTHORITIES

Appendix Page

Constitution

lst Amendment (Text 4,5,6,51)

4th Amendment (Text 8,9,10,12,13)

5th Amendment (Text 5) 403-

14th Amendment (Text 3,4,42)

Statutes

10 U.S.C. 3784 405-

10 U.S.C. 3785 (Now 1185) 405-

(Text 17,34,42,63)

5 U.S.C. 706 (Text 38,51) 410-

5 U.S.C. 552(4)(B) (Withholding

Record) (Text 7)

18 U.S.C. 1961 et seq. 408-

(Text 42,59)

18 U.S.C. 1505 (Text 46)

18 U.S.C. 1503 (Text 46)

Code of Federal Regulations 32 CFR 581.3

(Access to Records (Text 39)

403

404

407

406

412

409

410

32 C.F.R. 65.4(b) (Criteria) 413

(Text 17)

C.F.R. 65.4(b)(v) (Text 17,61) 2

Cannon Law (1732-1739) (Text 61)

Federal Rules of Civil Procedure

F.R.C.P. Rule 44(b) 1

(Text 16)

F.R.C.P. Rule 60(b) 417--418

(Text 6,46,52,56,58,59)

F.R.C.P. Rule 44(a) 29

F.R.C.P. Rule 59 (Text 40,46,52,56,57,59,

Federal Rules of Evidence

Rule 1002 Requirement of

Original (Text 52,55)

Rule 1003 Admissibility of

Duplicates (Text 52,55)

Rule 1004 Admissibility of

Other Evidence (Text 52)

58)

419

xxi

Rule 803 (10) Absence of Public

Public Record (Text 51,52) 25-29, 419

Rule 902 Extrinsic Evidence of

Authenticity 28-29

Army Regulations AR15-815,

Par. 22 (Text 33) 420

Certification of Record with

Seal, signed by J.A. Gen.

Corps and Sec. Army and

Admin. Assist (Text 22) 421-422

Department of Army (Involuntary

Release) 427

Cases Cited:

Greene v. U.S. 3760 U.S.

149 at 155 (Text 14, 63)

Hazel Atlas Co. v. Hartford

Co., 322 U.S. 238 (1943) (Text 43-44)

Marbury v. Madison, Kranch (Text 2)

(Unknown-Maybe Antifacist) 341 U.S.

123,171,71 S.Ct. 624 (Text 39)

XX1li

OTHER AUTHORITIES

Text Page

Chevron Doctrine 41

Clifford, Clark (1961) 29

Hand, Learned 3, 4

Holmes, Justice 5

Ginsburg, Ruth Bader 31

Marshall, Justice 2

Rehnquist, Wm. H. Chf. Justice 31

Schwarzer, Wm, Judge 32

Wyzanski, Charles E., Jr. Za, 2

REFERENCE TO OFFICIAL REPORTS

Appendix Page

These are in the Appendix 34 -192

Opinions immediately below 428-429

Jurisdiction 429

Constitutional Provisions Involved 430

Concise Statement of Grounds 431

Text 1

STATEMENT OF THIS CASE, ITS LONG-TORTURED

HISTORY AND THE REASONS FOR REVIEW,

DECISION OR REMAND

I apologize in the very beginning

that this petition is not structured as a

professional lawyer would do, but the

facts and the law, ignored so far by so

many should become more than clear in the

telling, even though the "facts" are not

usually considered by this Supreme Court.

This case cries out for an integrated

holistic hearing, for it is greater than

the sum of its parts. All the items I

cite in this brief and appendix have been

introdtced.at one time or another in the

record in the courts below, some

repeatedly in the course of this long,

long litigation. For the sake of

conciseness and brevity, I will refer to

the Appendix herein presented as the

Text 2

complete record below consists literally

of thousands of these pages. This should

render it more readable, convenient to the

court, and in the interest of justice.

The core of this case is that to date

fraud has been not only allowed to have

its way but has been concealed and covered

up in an obstruction of justice fashion by

attempting to foist legal custody for a

document which was and is the proximate

cause of this dispute involving

fundamental rights of "due process" and

the "free exercise" clause.

Justice Marshall stated "it is

emphatically the province and duty of the

judicial department to say what the law

is." Marbury v. Madison, Kranch, 137,

177, 178.

"Without judicial enforcement,

written constitutional declarations of

Civil liberties are apt to be mere

Text 3

admonitions. Absent on institutional

framework for their vindication they will

have no greater force than the parson’s

injunction. ...But our tradition has

always emphasized the role of the courts

in preserving fundamental rights." (Judge

Charles E. Wyzanski, Jr.- Footnote below.)

This petitioner has been a parson

both as a Regular Army officer and as a

civilian for 48 years, eleven as a

parachuting parson. He now cries out to

this Supreme Court for justice and redress

as his reputation, a "liberty interest,"

is at stake.

From the same source cited below,

Judge Learned Hand, pp. 44,45, said: "The

day is gone when this court uses the Due

Footnote:

An introduction to Judge Learned Hand at the

Oliver Wendell Holmes lectures, 1958, in a book

titled The Bill of Rights, originally published

by Harvard University Press, Published in 1986 by

Atheneum, NY)

Text 4

Process Clause of the Fourteenth Amendment

to strike down state laws regulatory of

business.... It remained true that

procedurally the owner of property still

had the protection of adequate notice and

an opportunity to present his own evidence

and to be presented with his adversary’s;

and the same is true of less tangible

interests (my Regular Army Commission) ;

but for these there was a background of

precedent which has always been recognized

as interpretative."

He also asserted: "Moreover, it has

now become apparently accepted doctrine

that the ’Due Process Clause’ in the

Fourteenth Amendment covers the

prohibitions of the First." (p. 50 IDEM)

This is the fourth time I, a non

lawyer, have petitioned pro se for a writ

of certiorari to this Supreme Court in one

or another aspect of this constitutional

Text 5

and long-standing legal situation (1983,

1989, 1992, AND NOW). In terms of the

legal system in general and the laws

regulating religion in particular, Justice

Holmes’ statement has great importance:

"A page of history is worth a volume of

logic." I humbly petition this Supreme

Court to consider the long history of this

particular case, and the lawlessness,

oversight and recklessness, if not malice

and bad faith that has accompanied it from

the very beginning in 1961 and has gone

unrecognized by all. This contempt (of

Congress too), arrogance and ignorance is

still present in 1993, despite the

ersistent, most diligent efforts of this

petitioner to seek the truth from both

church and state and while being at the

same time thwarted by unconstitutional

procedures, namely, the continual denial

of "due process" and the violations of the

Text 6

"free exercise of religion" clause,

accompanied by the fraudulent concealment

of evidence and also hindered by the

requirements of “top secret" military

security classifications. Even recently

discovered, relevant evidence of 1991 has

been distorted and misinterpreted. The

First Circuit in denying the Rule 60

Motion at issue here has stated it to be

“non relevant," "could have been

discovered earlier," and not conducive "to

a reversal." But this petitioner insists

that it is absolutely relevant to the

charges and allegations, could not have

been reasonably discovered and accepted as

such before this time, and if properly

read and interpreted would have then and

should now produce a reversal. This is

the core of this particular petition for

certiorari but since it involves "due

process" and "freedom of religion” it

SN 2S ee > 0 tee OR G:

Text 7

demands "strict scrutiny” in a holistic

manner, which to date has been sadly

lacking.

The administrative and judicial

actions heretofore made by this petitioner

have consistently been blocked by a denial

of access (1961-1993) to the original

document asserting false allegations,

which constitutes the fundamental

indictment against me. Even the

authenticity of this putative official

original document, now missing from

government files, has never been

established by any authority, civil or

religious, administratively or judicially,

despite much dispute about it and its

contents and the fact that the putative

author has denied in writing that he is

the author (App. p. 226).

Yet, the contents therein have been

utilized to my further injury by agents of

Text 8

both the government and my church many

times despite the fact that there is no

record in government files of this

document. The Army Board for the

Correction of Military Records (ABCMR) has

stated in 1980 that it is the

responsibility of my Church to establish

or prove the authenticity of this document

and only them (App. p. 387). Ridiculous!

On 8 May 1980, the Executive

Secretary of the ABCMR stated: "The

letter is in the church files and the

authenticity can be determined only

(emphasis supplied) by the church

officials." (App. p. 387) This was ina

letter to Senator Paul Tsongas, who had

asked, "is the letter authentic?" But an

evasive reply was the result. A similar

response to Congressman Gerry E. Studds

from the ABCMR Executive Secretary was

given when the latter stated in regard to

Text 9

this document, "...which is properly in

the files of the Military Ordinariate in

New York City." (25 September 1980) (App.

p. 423, 424) The same response was given

to Congressman J. Joseph Moakley (29

September 1982) (App. p. 199-201, at 200).

Likewise, the response to Senator Edward

Kennedy from the Executive Secretary of

the ABCMR 19 June 1984 stated that the

Board was "unable to ascertain why the

original letter/document from Lieutenant

General Paul W. Caraway is not currently

in military files. However, it would

appear that the original letter/document

is or was in the hands of your Military

Ordinariate in New York." (App. p. 245-248

at 247)

On the same date, 19 June 1984, ina

letter addressed to this petitioner from

the Executive Secretary of the ABCMR, he

stated, "Pursuant to your request, please

Text 10

find enclosed a complete copy of the

entire file maintained by the Army Board

for Correction of Military Records

concerning the consideration of your

case." (App. p. 245-248) But there was no

original document of Lt. Gen. Paul W.

Caraway dated 11 October 1961 therein,

which the government itself previously

termed the “proximate reason" for my

separation from Regular Army status. The

copy from church files, addressed to the

Chief of Chaplains, was submitted by this

petitioner to the ABCMR hearing in 1983

(App. p. 361-365).

Previously on 2 March 1978, before I

received a copy of this nefarious

document, Lt. Col. Charles L. Moore,

U.S.A., Deputy, Congressionai

Correspondence Agency in response toa

letter of inquiry of Speaker of the House

Thomas P. O’Neill stated, "...examination

Text 11

of Reverend Cowhig’s official army

military record fails to disclose any

correspondence from Lieutenant General

Paul Caraway to officials in the

Department of the Army or to Cardinal

Spellman." (App. p. 385) To this pro se

petitioner, not a lawyer, this dilemma is

obviously nonsense. It is supposed to be

and has been considered by the ABCMR an

official document to the Chief of

Chaplains, U.S. Army, though the

Congressional Liaison office in 1964

erroneously stated in a letter to the

Speaker of the House, John W. McCormack,

that it was a "report... to Cardinal

Spellman."(App. p. 209-214 at 210) This

was a gross misrepresentation with serious

consequences, as I was refused access

there to church files until 1980, while

the Speaker considered it only as a church

affair, apparently.

Text 12

Also in 1964, I personally met

Cardinal Spellman who after review of

church files denied me permission to

reenter the army. Of course, a copy of

the spurious Caraway letter was in the

church’s files, most prejudicial and

harmful. Again in 1966, I was given

permission by the church to reenter the

service, but this was later withdrawn as

they stated it to Cardinal Cushing, "It is

our understanding that Father Cowhig

cannot receive a security clearance from

the F.B.I." (App. p. 379) The poison of

this "virus", the presence of a putative

document seems again to have contaminated

matters much worse that a computer

"virus." F.B.I. -- nothing! More harm!

I was denied access to this 1961

document by both church and state for many

years until I finally received a copy from

church files in August 1980, which clearly

Text 13

indicates the addressee, to have been the

Chief of Chaplains, U.S. Army (App. at

361). Previously in 1974, the Army Board

for Correction of Military Records (ABCMR)

had established and determined that my

forced resignation was involuntary under

10 U.S.C. 3785 (App. 427). Further

multiple efforts before that Board were

frustrated in subsequent years (1974-1980)

apparently due to partial extracts from

the basic spurious document sent in 1962

to my local religious superior, Cardinal

Cushing from the Military Ordinariate (now

termed the Archdiocese for Military

Services, U.S.A.) causing further injury,

which extracts I supplied to the Board

(App. p. 366-372). At no time was I

given the complete, full, copy of that

spurious document as I have said until

1980 (August). I was deliberately kept in

the dark! There was not even a semblance

Text 14

of “due process" in 1961. There was no

show cause hearing, no opportunity for

rebuttal! I could not face my accusers!

Also during this time, I was muted, in

effect silenced, by my possession of "top

secret" information on a "need to know"

basis, particularly in regard to civilian

religious authorities. (App. p. 249)

"...in the absence of explicit

authorizatrion from either the President

or Congress the respondents were not

empowered to deprive the petitioner of his

job in a preceding in which he was not

afforded the safeguards of confrontation

and cross examination." (Greene v. U.S.

376 U.S. 149, at 155.)

I petitioned the Court of Claims in

1980 (427-80C) for redress, but was denied

due to a ruling on a six-year statute of

limitations, 27 February 1981 (Motion to

revoke denied 3 April 1981). However, in

Text 15

that action which as Judge Nichols stated:

"We need not address the merits...," (App.

p. 37-39) the government certified with

seal my Official Military Personnel File

(OMPF) as "true and exact” on 11 October

1980 (App. p. 421-422) when it was not, as

there was no document purportedly authored

by Lt. Gen. Paul W. Caraway therein. It

was not part of the record. Acting pro

se, I was unable to respond in this Court

of Claims action because of poor legal

advice concerning the time required to

respond. In fact, my response when sent

and the order of the court passed each

other in the mail. Consequently, my reply

brief was declared "moot" and returned to

me. However, in that order, Judge Nichols

stated, "He was discharged from the Army

Chaplain Corps January 22, 1962, following

his voluntary resignation."(App. p. 38)

PO ee ey ee eee

Text 16

Certainly a prejudicial error with harmful

results.

This judicial statement was just not

true. My discharge had been declared

involuntary under Title 10 U.S.C. 3785 in

1974 by the ABCMR. This prejudicial

judicial error has perdured and has been

the source of much judicial error and

gross misinterpretation ever since.

Regretfully, this Court of Claims decision

has been the basis for the invocation of

"res judicata" over the years. This seems

pretty flimsy to me, not to say

unjustified, especially when corruption

upon this Court of Claims was practiced by

the government by false certification of

official records (App. p. 421-422). Or

the other side of that coin according to

Federal Rules of Civil Procedure, 44(b)

(Endnote l1- App. p. 1) There is no record!

On either side of the coin, the government

nnn.

Text 17

is and has been at fault for a long, long

time. I was a Regular Army officer covered

by Title 10 U.S.C. 3785, now 1185)

(Endnote 2-App. p. 1-2).

None of these lawful rights were

permitted and none of the procedures

followed. The church’s responsibility is

covered by the Code of Federal Regulations

[32 C.F.R.64.4(b) (v) (Endnote 3-App.p.2).

Surely the regulations and policies

of the DOD should be in accord with

statutory law and the constitution. But

neither the Constitution nor statute, nor

Federal Code, were abided by church

authorities, deceived as they were by

false reports.

32 C.F.R. 64.4(b)(ii) states,

".++eEach religious faith group shall; (ii)

Be able to exercise ecclesiastical

authority to grant or withdraw

ecclesiastical endorsements." (App. p.

Text 18

413-414) But how can a faith group

properly exercise its authority if that

endorsing power is itself deceived and no

opportunity to present the true facts is

available, or is not offered, in effect

denied? The solution of this puzzle has

been constantly ignored or overlooked by

all agencies and courts so far, and so is

properly presented to this Supreme Court

for a solution by the exercise of its

extraordinary powers.

On 11 July 1979, retired Gen. Caraway

had handwritten and signed a letter to

this petitioner stating: "Sir, I am

satisfied that I did not prepare a letter

concerning you. Further, in as far as I

can discover, no letter concerning you was

prepared by any member of my staff or by

any employee in my headquarters, with or

without my consent." (App. p. 226)

Text 19

Yet, an unauthenticated, false,

spurious document which , as the

government has asserted was the "proximate

reason" for this petitioner’s separation

from Regular Army status was bouncing

around between church and state, and the

contents partially reported to my local

religious superior here in Boston (App. p.

366-372). It was a real "shell game."

Where is it? I don’t have it! Look, he

has it! No! I don’t have it! Can this

procedure be called fair, while I was

denied access and still am?

(I filed a complaint (81-1616C) 25

June 1981 in the District Court of

Massachusetts before Judge A. Caffrey

which was denied on the grounds of res

judicata 31 March 1982. In his written

opinion, this judge three different times

asserted, "all the evidence" had been

previously considered. That is

Text 20

predjudi::iial. He also stated, "The Board

considered the entire administrative

record (App. p. 44-53 at 47). This just

was not true then nor is it now in 1993.

More and more judicial and prejudicial

error!

The United States Court of Appeals

(lst Circuit) (82-1352) (App. p. 60-71)

affirmed the District Court 22 November

1982 asserting that the government had

been prejudiced due to failing memories,

but memories (App. p. 67) are certainly

not critical in this case involving much

documentary evidence. Papers and

documents do not forget! They do not

bleed! That Appeals Court stated, "This

(prejudice) is especially important in

this case in which Father Cowhig places

much of his reliance to a challenge to the

authenticity of a letter from a high

ranking Army officer shortly prior to the a

Text 21

plaintiff’s discharge, and also asserts

that the statements in that letter were

factually false." (App. p.67-68) Also,

"plaintiff’s course in pursuing relief

from other tribunals, before he sued in

the district court, does not show that his

delay in filing suit below was a diligent

or reasonable postponement." (App. p.

66-67) (Please remember that this was in

1982. Yet,the same rationale (lack of

diligence) was used by the same Court of

Appeals in 1992 to maintain and hold the

statute of limitations as a bar.(App.p.

188) The challenge as to authenticity was

raised, introduced, but left unresolved.)

Yet, neither the truth nor the

authenticity of the basic, fundamental

document containing false allegations were

addressed by the judges despite Lt. Gen.

P. W. Caraway’s hand written denial in

1979 of the putative 1961 document’s

Text 22

authorship (App. p. 196), which denial I

presented to the court. How can

limitations or res judicata hold in the

face of concealed fraud?

My Official Military Personnel File

(OMPF) certified under seal as "true and

exact" by the Department of the Army both

by the Judge Advocate Branch and the

Assistant Secretary of the Army in 1980

(App. p. 421-422) before the Court of

Claims is not true and exact, or is it?

If it is "true and exact" having no

document of Lt. Gen. Caraway therein, what

is the source of the church’s copy?

Another mystery! Unsolved!

This same certified record (OMPF) was

used by the Army Board for the Correction

of Military Records in its hearings of

September 1983 as Exhibit "B" (App. p.

421-422) and as evidence considered, in

addition to the church copy supplied by

Text 23

this petitioner (APp. p. 361-365). Two

sets of records! Two account books! The

Original was and is still missing in 1993.

A “de novo" hearing was held before

the Army Board for the Correction of

Military Records (ABCMR) in September of

1983 (App. p.72-94) The majority of this

civilian board found in my favor, while

the minority of two dissented.

The majority in its board

conclusions, No. 5 among others, stated,

"That although a conspiracy against the

applicant was not conclusively proved at

the hearings, sufficient evidence was

addressed to create the appearance of such

a conspiracy, and that conspiracy

ultimately led to the ill-advised, and

literally forced and truly involuntarv

resignation of the applicant from che

service." (App. at 81)

Text 24

Also No. 7 of the majority’s

conclusions is interesting, "that in view

of the foregoing findings and

conclusions,the Department’s acceptance of

the applicant’s resignation, without

affording him proper treatment and the

opportunity to be rehabilitated, has

deprived him of promotion to the grade of

major and twenty-year retirement benefits

and therefore is unjust." (App. p. 81-82)

The Principal Deputy Assistant

Secretary of the Army (Manpower and

Reserve Affairs), Mr. William D. Clark,

upheld and concurred with the minority 29

March 1984 and denied all relief, one day

after receiving the findings and

conclusions (App. p. 90-94). However,

during this hearing, the contents of this

disputed document, from the copy thereof,

the allegations of unsatisfactory

performance of duties both military and

ba Sh eteet | ad Oh hae Sih ,

yen)

ee ee ee Oe eS 2 ee er te

Text 25

religious, were utilized. Both the

probity and the competence of independent

medical testimony were disregarded, if not

impugned by the minority. The two

dissenters were in gross error in their

conclusion that there was incongruity

between my testimony at the 1974 ABCMR

hearing and that presented in 1983,

implying mendacity (App. p. 87-88 par f).

The Assistant Secretary of the Army,

Mr. William Clark, who made the ultimate

decision, endorsed the minority opinion

and stated in part, "...I find no

conspiracy...;" (App. at 92) "The

applicant’s resignation was tendered as a

result of the edict (emphasis supplied) of

the Military Ordinariate of the Catholic

Church which stated that he either resian

from the Army or lose his ecclesiastical

endorsement." (Is that not a threat? A

real Hobson’s choice!)(On a disposition

ie ON Sa ie AIAN

Text 26

form in the Chief of Chaplains office on

24 November 1961, Chaplain [Col.] Bernard

J. Fenton, under remarks thereon stated,

"The ecclesiastical endorsing agency

concerned will remove Chaplain Cowhig’s

ecclesiastical endorsement if his

resignation is not accepted.) (Last folded

item in Appendix) (How much pressure can

they put on a guy?) Clark continued,

"That edict was based solely on his

excessive abuse of alcohol, which was

affecting his performance of duty as an

Army Chaplain and sullying his reputation

as a chaplain and as a priest." (App. p.

93) This statement besides being

presumptuous is false as even a cursory

reading of the testimony, especially of my

commander and executive officer at the

hearing in 1983 would make manifest. In

fact, the Army by its own criteria rated

me in the top 5 percent worldwide.

no aby betel!

Text 27

Affecting his performance of duty?

Sullying his reputation? Nonsense!! In

fact and reality it was the allegations of

non-performance of religious duties as

contained in the 1961 so-called Caraway

document that motivated church authorities

to act as they did (App. p. 243).

Regarding performance of duty, a few

pages (240-244) of my airborne commander’s

testimony (231-273) at the 1983 ABCMR

hearing are listed in the Endnote Section

of the Appendix (Endnote 4 - App. p 2-9)

so that this Supreme Court may have some

clue and flavor as to the enormity of the

injustice done. The entire transcript

(411 pages) was available to the courts

below in addition to 78 Exhibits.

Voluminous indeed, and difficult to plow

through, but indicative of my pertinacious

diligence.

Text 28

Also parts (pp.59-70) of the

testimony of my Executive Officer of the

503rd Airborne Infantry Combat team who

also testified personally (pp.45-127) at

the 1983 ABCMR hearing are placed in the

Endnote Section of the Appendix as Endnote

5 (App. p. 9-19).

Dr. George Wheeler Roark, Jr., was

introduced to the ABCMR as a medical

doctor, as an expert medical witness on

behalf of the applicant (pp. 149-224).

This part of his 1983 testimony on page

152, 153 can be found in the Endnote

Section of the Appendix as Endnote 6 -

App. p.19-20).

I ask this Supreme Court to note that

the medical testimony of Dr. Roark briefly

cited in the appendix was impugned by the

minority of the Board in 1983. It was

reiterated as new evidence in 1991 ina

stronger fashion expressing his opinion of

Ad wai hnwhp ital’ etal aed

Text 29

that non-medical minority of the ABCMR and

the incompetence of the medical behavior

throughout. This also is new evidence of

1991 presented to the court, but

disregarded as "not new," "not relevant,"

but it goes to the heart of the

allegations! (Endnote 7, App. p. 20-24;

full text, App. p. 337-345)

I ask this Supreme Court to recognize

and remember that this petitioner was the

only Catholic priest paratrooper qualified

in the entire Pacific area and also with

top secret information on a strict

"need-to-know" basis. This knowledge

concerned airborne operations into Laos.

Plans were made on my desk!

The critical and hazardous nature of

the situation then prevailing in southeast

Asia may be discerned from a memo of 24

January 1961 of Clark M. Clifford to

President Kennedy in regard to a previous

Text 30

transition team meeting which is listed as

Endnote 8, App. p. 24).

This top secret information I could

not divulge even to the Chief of

Chaplain’s office without proper clearance

even if given the opportunity to do so,

which I was not. That office had already

determined before I left Okinawa and prior

to any document of General Caraway that

this petitioner was to be RAD, Removed

From Active Duty (App. second last folded

page). This pre-judgment also was kept

from me. No due process! Not even a show

cause hearing! I could not disclose this

top-secret information even to the Speaker

of the House when I personally talked to

him in 1963 in his office in Boston.

I also ask this Supreme Court of the

United States in accord with Rule 17 to

recognize there are special and important

reasons, impinging upon church and state

01 SNPS OC I bce See

Text 31

relations, to grant a writ of certiorari,

to remand, to decide or otherwise rule in

its discretion and also recognize that the

lower courts have "far departed from the

accepted and usual course of judicial

procedure" as to the proper ascertainment

of facts and so far "sanctioned such a

departure by a lower court" in law, as to

call for an exercise of this court’s

power. It seems as if the judicial

bureaucracy, “law clerks and elbow clerks"

as Judge Patrick Higginbotham of the Fifth

Circuit described them on C-Span during a

workshop of the Federal Appeals Court

Judges in February 1993, are writing the

opinions. He estimated that 98% of the

work was so done.

Ruth Bader Ginsburg, the recent

nominee for the Supreme Court on the

occasion of her nomination approvingly

quoted Chief Justice William H. Rehnquist

Pliage, igh tate 0 «

Text 32

as saying that a good judge is bound to

apply the facts and the law to come up

with a decision, even if it is "not what

the home crowd wants". (New York Times)

This petitioner expects no less.

Judge William W. Schwarzer states: "The

writing judge or the law clerk may read

some or all of the record. Time demands

being what they are, rarely will the other

judges read much of the record. But even

a reading of the cold record on appeal

gives the reader little confidence that he

or she has a fair understanding of the

import of the evidence and the

proceedings." (See footnote below.)

Again this petitioner reminds this

Supreme Court that the job description and

function of this petitioner as set out in

Footnote:

In his chapter on "Defining Standards of Review"

in the publication "The Federal Appellate

Judiciary in the Twenty-First Century" Federal

Judicial Center (1989) Chapter III, p. 102

Text 33

the Code of Federal Regulations (510.1)

pertains primarily to the internal forum

of conscience and especially so when

combat operations are imminent (App. p.

415).

Some of the Federal Rules of Civil

Procedure (F.R.C.P.) and the Federal Rules

of Evidence that have been ignored and

overlooked despite this petitioner’s

raising of the issues and a request for a

Civilian Investigative Demand (C.I.D.) in

the presence of fraud as a "Private

Attorney General" are listed (Endnote 9,

App. p. 25-32).

On February 1986, I petitioned the

ABCMR for reconsideration under Army

Regulation AR15-185, par. 22; and 18

U.S.C. 1552; based on new evidence not

previously considered. In the petition

for reconsideration I stated therein,

"...I have constantly and consistently

Text 34

asserted that my separation from the U.S.

Army was improper and unjust, illegal, and

fraudulent, consequently null and void.

Not only was my severance unjust, but was

in contrast and in violation of existing

Army regulations for a Regular Army

officer in addition to a violation of my

constitutional rights and statutory law

(10 U.S.C. 3785). I was denied due

process of law and was the subject of

prejudice, discrimination, hasty and

arbitrary judgments based on libel and

slander which have seriously affected my

Career and profession. I demand to be

made whole. I seek the restitution of my

Regular Army commission with all

appropriate adjustments in rank and

privileges. I demand to be restored "nunc

pro tunc,” "now for then."

Also therein, "I am enclosing

documents lately obtained from five

ere

Text 35

medical doctors which to me indicate the

presence of medical malpractice. I am

enclosing documents from three lawyers who

have analyzed my testimony of 1974 and

1983, asserting that there is no conflict

or contradictions in my testimony, as was

alleged in the ABCMR minority report of

1984...." "....I am also enclosing a

document from Dr. Hurwitz, a psychologist

at Boston College, who clearly indicates

the injustice that has been

perpetrated..." (App. p. 215-220).

This petition for reconsideration and

all the material, new relevant evidence at

that time, was arrogantly returned to me

with no covering letter, no explanation,

merely shipped back to me 10 March 1986.

I resubmitted my petition on 1 April

1986 and again this was opened and

returned without any comment on 7 April

1986.

Text 36

The third time I personally submitted

my petition on 29 April 1986 and

Congressman Mavroules’ office did the same

on 22 April 1986. In a letter to me dated

23 May 1986 from the Executive Secretary

of the ABCMR in response to my letters and

inquiries from Congressmen, he stated:

"Evidence which is repetitious or based on

emotion or which tends to elaborate on

facts supplied previously considered by

the Board is not deemed to be new or

relevant evidence..." (App. p. 221-224)

I again wrote to Senator Kennedy on 1

July 1986 indicating the grievous errors

by the Board and again presenting a record

from the Chief of Chaplains office which

had been previously withheld from the

Board in 1980 (App. p. 197, 198) and which

clearly, most clearly indicated the

Chief’s prejudgment that this petitioner

was to be Removed from Active Duty (RAD)

OE Ae ED EE, »

Text 37

even prior to my departure from Okinawa on

6 October 1961 (prior to putative Caraway

letter of 11 October 1961 - App. second

last folded page). All these petitions

for reconsideration incorporating the

scientific evidence of -several competent

medical doctors, my commanding officer and

others were arbitrarily rejected by the

Board (App. p. 227-334). This arbitrary

and arrogant rejection was to have further

negative ramifications as these

testimonies were apparently considered as

"not before the Board" in later judicial

actions or completely overlooked and

ignored by the courts. Again in 1992 this

material rejected arbitrarily by the ABCMR

in 1986 was considered "not new" by the

First Circuit. This continuous

Suppression of evidence, first by the

agency and then by the courts, is a prime

example of "sand bagging," caught between

PUT DEIR Rin CMR Pe hb hed

At Ra Tae th ARON NSBR EAD TAS cy cl A NE AD AY Rall eae a Ne a

ae te ee een

Text 38

two players, both antagonistic. This is

sad and sorry justice!

The U.S. Attorney argued that the

ABCMR decision was a "nonreviewable

military personnel decision." It is not!

The ABCMR is a civilian board.

This same evidence gathered in

1985-1986 in addition to the evidence of

1991 was later to be declared by the First

Circuit (92-1440, 7 December 1992), as not

new or recently discovered. Is this fair>

I certainly have not been sleeping on it

nor have I been lacking in diligence, but

I have been obstructed. This is the

particular issue at stake in this petition

for certiorari in 1993. Please remember

that all my motions under Rule 59, and

others to vacate, to reconsider, were

denied by Judges Young and Wolf.

In this second motion for

reconsideration to Judge Young, I cited

Text 39

Title 5 U.S.C. 706 (Endnote 11, App. p.

30-31)) on the Scope of Review and 5

U.S.C. 552(4)(B) (Endnote 12, App. p.

31-32) regarding the withholding of a

record and 32 C.F.R. 581.3(d)(5), Access

to Records (Endnote 13, App. p. 32).

On 25 November 1987, I presented a

motion to lay aside, to vacate the

judgment of 26 October 1987. Therein I

cited Judge Frankfurter; "The heart of the

matter is that democracy implies respect

for the elementary rights of men, however

suspect or unworthy. A democratic

government must therefore practice

fairness; and fairness can rarely be

obtained by secret, one sided

determination of facts... decisive of

rights." (341 U.S. 123, 171, 71S. Ct.

624, at 170, 70 S. Ct. at 647).

In this same motion under Rule 60, I

asserted that the basic unauthenticated

Text 40

document "has been fraudulently concealed

from me." (Endnote 12, App. p- 31-32).

I also asserted "misrepresentation to

Speaker McCormack in 1964 (App. p.

373-376);" fraud “upon the court in the

1980 court of claims action in that the

government certified as true and exact

what was not so (App. p.- 421), denial of

liberty; denial of "free exercise of

religion; denial of a basic show cause

hearing in 1961."

In 17 December 1987 Judge Young

declared that his court was without

subject matter jurisdiction and denied the

motion, "not on the merits but on

jurisdictional grounds." (App. p. 116,

117) Again not before the court?

However, I asked for clarification of this

decision of 17 December 1987 as I had also

timely presented a motion on 9 November

1987 under Rule 59 about which P.R.C.P.

Text 4]

4(a)(4) says that "a notice of appeal

filed before the disposition of the above

motions shall have no effect." But who am

I, a non lawyer, to contradict a federal

judge when he says he has no subject

matter jurisdiction and can take "no

action because the case is presently under

appeal” as he did on 7 January 1988?

Again in this action, the questions

remain was the whole record reviewed? Was

it ever whole? Which one was true and

exact? Who has legal custody? Was new

relevant medical evidence previously

spurned by the ABCMR and once more

presented to the court disregarded or

Overlooked? No basis for relief? Nonsense!

I was now faced with these judicial

decisions which I believe to be flawed,

erroneous, not fair and unjust. I realize

judges are not called upon to run the Army

and that they give great discretion to

Text 42

government agencies in regard to statutory

construction and interpretation (the

Chevron doctrine), as well as to the

latter’s presumed expertise when there is

some ambiguity. But a line has to be

drawn when there is no ambiguity, when

fraud, and further concealed fraud,

withholding of evidence, open violation of -

statutory law, the crime of conspiracy,

and the denial of basic constitutional

rights and their violation are involved,

requiring strict scrutiny by the courts.

Certainly the Statutory Law expressed in

10 U.S.C. 3785 (1185) is unambiguous as

is the Federal Code. This has not been

resolved so far. Too much discretion has

been allowed, if that is what it was. I

call it prejudice, bias and favoritism.

It can hardly be called equal justice

before the law, or "equal protection."

“ee

Text 43

Perseveringly and diligently, I once

more brought suit in the District Court of

Massachusetts (90-11297 WF) under RICO (18

U.S.C. 1961, seq.) 16 May 1990, asserting

among others that the government had

conspired with officials in my church, in

collusion, using mail and telephone to

defraud, extort, and take away illegally

my property (liberty also), namely my

Regular Army commission as well as my

reputation and had in a pattern obstructed

justice, as in a "racketeering activity."

In this instance, I reluctantly named my

church officials as co-conspirators in

joint actions, even though they themselves

had been deceived by a false report, which

they considered authentic (App.p.242-244).

This is a violation of the "Free Exercise

Clause," as I was deprived of exercising

my religion with the troops.

Text 44

This Supreme Court has stated, "From

i the beginning, there has existed a Rule of

Equity to the effect that under certain

circumstances, one of which is after

discovered fraud relief will be granted

against judgments regardless of the term

of their entry." --Hazel Atlas Gos Ws

Hartford Co., 322 U.S. 238 (1943) (cited

in plaintiff’s response in opposition to

Motion to Dismiss, p. 3-in District Court,

Sept. 1990) with tabs of medical evidence

of Dr. Rohde and military testimony of my

Okinawa period. All overlooked or

rejected then as well as later in 1991.)

After my briefs were submitted with

Opposition thereto by the assistant U.S.

commander and executive officer of the

Attorney, Judge Wolf called for a status

meeting on 5 April 1991 at which he stated

3 that he would read the case. But the

2 docket sheet shows that the case was

Text 45

closed the same day despite the fact that

hundreds of pages had to be read and

analyzed. I suspect a "result oriented"

judgment..., but again, what is a pro se

non-lawyer to do? I did not receive the

official court report of this 5 April 1991

decision or the 25 April 1991 order and so

notified the court on 2 July 1991, having

learned of the judge’s decision

unofficially only by service through the

adversary attorney for the Archdiocese for

Military Services U.S.A. in a letter to

the court dated 18 June 1991 "to request

the entry of final judgment" in which was

enclosed a proposed judqment for the

court’s signature. What kind of monkey

business is that?

Again in this action as in so many

others no consideration was given to the

issue of whether the document of 1961

containing the basic allegations was

Text 46

authentic or not, nor to the issue of

where the original document was,

supposedly official and in legal custody

of the government, or if it was

fraudulently concealed and suppressed or

destroyed. 18 U.S.C. 1505 prohibits the

destruction of documents sought in

connection with an administrative

proceeding and 18 U.S.C. 1503 covers

judicial proceedings. Both statutes

prohibit the attempt to obstruct justice.

This petitioner filed several motions

to vacate, amend, under Rules 59 and 60

F.R.C.P. to no avail, denied 5 August

1991. Yet my letter of 25 April 1991 with

attachments was not entered on the docket

as Item 34 until 7 October 1991.

Questions do arise! (App. p. 148) Later

in these communications and motions was

one under Rule 60 F.R.C.P. on 19 November

1991 to Judge Wolf which charged fraud and

TS et

Text 47

presented new relevant recently discovered

evidence which rebutted the medical and

military charges expressed in the putative

1961 Lt. Gen. Paul W. Caraway document.

The denial of this motion on 21 March 1992

and the affirmation thereto is at bar

right now (App. p. 175).

One piece of testimony contained in a

letter dated 18 October 1991 of Doctor

George W. Roak, MD, who had also testified

in the 1983 ABCMR hearings, clearly

contradicted the medical assumptions

prevailing up to that time by the court

and administrative agencies. In effect,

this doctor accused the Military Medical

Service of incompetence. But this senior

doctor’s latest testimony which rebutted

any charge of "alcoholism" (App. p. 190)

was rejected again as somehow "out of

time." (App. p. 337-345).

Text 48

A fellow officer who served with me

on Okinawa (1960-1961), Lt. Col. T. Kelly

(Ret.) gave testimony clearly

contradictory to at least one of the

paragraphs of the putative 1961 Caraway

document. These letters were dated 6, 2li,

23 August 1991. (See App. p. 346-352.)

I had previously sworn in 1981 that

all the allegations were in error, (App.

p. 394) but again, no one has seen fit to

recognize my denials or give them any

credence at all! In fact, the first time

any diagnosis of alcoholism was made was 4

October 1961, two days before I flew off

Okinawa on 6 October 1961, despite the

fact that each admission sheet at the

hospital had recorded "No A or N" (n

alcohol or narcotics) at admission. The

Caraway letter (still missing in 1993 from

official files) was dated 11 October 1961

(App. p. 361-365). What a screw-up!

Text 49

Another letter of 31 October 199]

from Dr. John A. Day, Jr., MD, containing

medical information supportive of my

claims and challenging to the government’s

diagnoses was also sent to the District

Court 19 November 1991, but disregarded

(App. p. 353-360), as “out of time" (App.

p- 190), lacking "due diligence."

Lt. Col. (Ret.) Kelly’s 1991 letter

has been badly distorted and

misinterpreted by all so far. Lt. Col.

TRAP ALA Gig Ci They Gach tise admit 2

Kelly, then a lieutenant in 1961, was in

charge of all airborne operations for my

unit, the 2nd Airborne Battle Group on

Okinawa. Because of typhoon alerts and

actual typhoons, air craft had to be

evacuated from Okinawa in September 1961

and an airborne operation planned and

managed by this petitioner called "St.

Michael’s Day Jump" had to be canceled by

me_and Lt. Kelly, days before the

Text 50

scheduled parachute jump. Yet in the

putative Caraway letter of 1961 it was

stated therein that I was "incapacitated,"

and they had to call off the operation and

cancel the Catholic Mass that was to have

been celebrated by me after I jumped.

These comments in the 1961 Caraway letter

are pure fiction. But they have been

constantly employed against me in charges

of dereliction of duty and failure to

perform religious duties as in the copy I

finally obtained in 1980 (App. p.

361-365).

Lt. Col. (Ret.) T. Kelly’s letter

should put this lie and falsehood to rest,

but the courts have construed his

testimony as a mere meteorological

description undoubtedly because of their

lack of knowledge about airborne and

paratroop operations and their less than

careful reading of the testimony (App. p.

edit pth bse Sia ie Sana tan 3

Se ean ane eng an ee bandos

Text 51

346-352) and comparison with the 1961

letter. (App. p. 361-365)

It is interesting to note that briefs

and the appendix sent to Judge Wolf on 25

April 1991 (the same day as his order),

while this petitioner had no notice of any

decision were not placed on the docket

sheet as Item #34 until 7 October 1991

when I discovered them in place in the

court house, yet missing from the docket

sheet. Please note the time discrepancy

(App. p. 148). I informed the docket

clerk who then made note of it in the

docket sheet at that time (10/7/91). Once

more the suspicion, well founded, arises

that these matters were not even read, not

to speak of given consideration. Needless

to say that my confidence in judicial

bureaucracy has been shaken. This is

especially so since I had already written

to him 29 March 1991 complaining of fraud,

Text 52

collusion, obstruction of justice,

violation of the First Amendment.

On 25 April 1991, I again complained

of the violation of the Administrative

Procedure Act (APA), the Freedom of

Information Act (FIOA), pointing out the

absence of a supposedly official document

from government files, prejudice in the

Chief’s office, the rejection of evidence

by the ABCMR in 1986, I indicated to him

the pertinent Rules of Evidence important

in this case, i.e., 803, 902, 1002, 1003,

1004, and 1005.

Yet, Judge Wolf denied all my motions

under F.R.C.P. Rules, 52(b); 38(a)(b); 59;

60(a)(b) on 5 August 1991 (Docket No. 27,

30;App. p. 149, 174, 175).

I moved to the U.S. Court of Appeals

(lst Circuit) (91-2027) which is a

"companion case" now in 1993, again

including much medical evidence from

eee A

Text 53

several doctors, testimonials of my

commander and executive officer while I

was on Okinawa, a psychiatrist, three

lawyers who reviewed the testimony before

the ABCMR in 1974, and 1983, plus the new

recently discovered evidence and the

government ’s continued failure to provide

access to the original disputed document.

In the Court of Appeals’ affirming

opinion, they asserted that this

petitioner was "merely changing his theory

of recovery" and it was an "endless

pouring of old wine into new bottles."

But, I have consistently asserted that the

government officials have put poison in

the wine and have so far tried to conceal

it. The presence of fraud and the

concealment thereof even to the point of

making a false certification of my

le _-

official record to the court itself is

clearly fraudulent, certainly unfair.

se a

Text 54

This Appeals Court in the companion case

91-2027 acknowledge my complaint of

fraudulent concealment (App. p- 171), but

considers it merely of denial of access

when it is clear that the proximate cause,

the Caraway letter itself was a fraud, a

false conveyance and the governemnt has

tried to conceal this fraud by charging my

church with responsibility for legal

custody. If this isn’t fraud upon the

court and a nefarious, if not criminal

action, I, as a non lawyer, will eat my

hat. How much proof does the court

demand? I believe my papers, voluminous

and perhaps vexatious as they may seem to

be to the law clerks who are supposed to

read them, indicate fraud, concealment

thereof, suppression of evidence,

violation of constitutional rights.

This Court of Appeals has asserted

that I have had a "fair and full

Text 55

opportunity to litigate in previous

action” (App. p. 170). Not so! How can

this flawed adjudication be fair to any

reasonable person? The suppression of

evidence was permitted along with the use

by the ABCMR of flawed, tainted contents

of an unauthenticated document.

In the same way, how could I have

discovered the cause of my injury in 1962

as this appeals court asserts in 91-2027

(App. p. 171), even though aware of the

injury when the "proximate cause" was

illegally withheld and I was denied access

thereto to even a copy until 1980 and then

the government denied responsibility for

legal custody while the church through

Bishop Roque finally declared in 1988 that

it was not the legal custodian of military

documents and did not possess the original

(App. p. 425) which the Federal Rules of

Evidence demands (App. p. 25-29). Both

Text 56

entities played a game similar to two

people tormenting a dog by throwing a ball

to each other. Here it is! No there it

is! Can anyone call this fair treatment,

even to a dog? The same type of torment of

forcing me to chase from one agency to the

next, from one forum to another while no

one in authoritv chose to face the

unauthenticity of the basic document

containing false allegations is unfair.

Then after much chasing around, the courts

say the game is now over, you are too late

and you should have been more diligent in

chasing around. You should have chased

Lt. Col. (Ret) Thomas Kelly around the

world to Vietnam and back, and you should

F have pursued Dr. Roark even though he was

retired and had already misplaced some of

my letters. This seems to be the

are

rationale expressed in the latest opinion

of the First circuit, 92-1440 (7 December

Text 57

1992) in regard to a post-judgment motion

when they say, "None of these items of

evidence meet the Rule 60 (b) (2)

requirement that the evidence could not

have been discovered in time for a Rule 59

motion, i.e., by July 1991. Please

remember that Judge Wolf had denied a Rule

59 motion presented on 3 July 1991, after

the judgment of 2 July 1991 (App. p. 174).

The court ignores the fact that Dr.

Rohde’s testimony in 1985-1986, including

this partial quote, "...I do not believe

that the label of alcoholism can be, or

even was, justified by anything known to

me...” was arbitrarily spurned, arrogantly

spurned, by the ABCMR in 1986. In all

this maneuvering, the First Circuit

overlooked the fact that I had sent this

material to Judge Wolfe 25 April 1991, but

it was not placed on the docket sheet

until 7 October 1991, when I discovered

Text 58

the material in the court house obviously

unread, unconsidered. If an agency

rejects evidence and the court does not

read it until much later, after judgment,

if at all, can it properly be dismissed as

not new, not recently discovered? To do so

would seem to be a travesty.

Please remember I did present a Rule

59 motion, timely, but it was denied by

Judge Wolf on 5 August 1991 (App. p. 174).

Also please remember as I told the First

Circuit that I did not receive official

notice of Judge Wolfe’s action/decision of

25 April 1991 until 2 July 1991. Wow!

Please notice the time gap on the docket

sheet entry date between items #24, and

#34--both 4/25/91! (App. p- 148) Yet my

Rule 59, 60, 52(b) and 38 (a)(b) motions

were denied 5 August 1991 (App. p. 174).

But I again presented my Rule 60 motion

Claiming again fraud, concealed fraud,

Text 59

continued and continuing misconduct of the

adverse party for which the time of one

year is granted by the rules. This motion

which is at issue here now was filed 19

November 1991 and was denied by Judge Wolf

21 March 1992 (App. p. 175).

Please remember that Rule 60 (b) (3)

F.R.C.P. concerns fraud, misrepre-

sentation, or other misconduct of an

adverse party which I stated as reason for

that motion. Item 6 of that Rule speaks

of "any other reasons justifing relief."

Again we observe an incident or occasion

when probative evidence is Overlooked,

ignored, disregarded by the courts below

and, in effect, once more obstructs the

course of justice. Can limitations hold

in such circumstances? Or res judicata?

Yes, in 1979, I introduced the charge

to the ABCMR that "a forged document had

been submitted by unknown persons" as the

Ta NOTA At eat lt DB iene sca ENR

Text 60

Court of Appeals stated. The First

Circuit said in regard to limitations that

I_ filed a RICO suit (1990), "not until

eleven years later," but even a cursory

reading of this case history will make

more than clear that I was not sleeping on

it, but fighting all the way on many

fronts, despite the agency’s and the

court’s inattention.

The ABCMR had asserted many times

that the contested and sought after

document was "properly in the hands of

your church." The Archdiocese was

introduced reluctantly as co-defendant in

1990, as I am forbidden by Canon (church)

Law to bring suit against an ordinary, a

bishop, because of an act of discipline on

his part, even though they, both the

church in New York and Boston, had been

flummoxed and bambooseled! But the

Archdiocese of Military Services, U.S.A.,

Se thre ne tiee Yon iled

Text 61

acted as it did, relying on the

authenticity of the 1961 Caraway report

and Bishop Dimino in 1984 has so stated

(App. p. 242-244). The Archdiocese was a

duped and unwitting co-conspirator from

the beginning, but they were negligent and

reckless by not adhering to the Federal

Code of Regulations which states that they

"abide by the applicable regulations and

policies of the Department of Defense"

(DOD) 32 F.C.R. 65.4(b)(v). To dismiss

the Archdiocese as "time barred" is again

not fair as they withheld a copy of this

spurious report from me for twenty years

contrary to even church law (Canons

1732-1739) and supplied a copy only when

forced to do so by a higher authority in

the church in 1980. They refused to

declare that they did not have the

Original document or legal custody until

;

Ss ee he

Text 62

1988 (App. p. 425), well within any

limitations period.

I also ask this Supreme Court to

remember that this petitioner had been

truly operating pro se, by himself alone,

in searching out the truth over many

years, as a non-professional lawyer and

investigator, but as one who has been long

aware of the injustice done, and has

experienced obstruction, evasiveness,

fraud, concealed fraud on the part of

others.

It may well be that an extraordinary

writ, a petition seeking a writ of

prohibition, or a writ of mandamus to the

U.S. Government, the Secretary of the

Army, the ABCMR, be issued in the wisdom

of this Supreme Court to clarify the

existence, or non-existence, as well as to

the authenticity or non-authenticity of

the missing document supposedly sent by

Text 63

Lt. Gen. Paul W. Caraway addressed to the

Chief of Chaplains, U.S. Army. If so, I |

do hereby petition. The copy clearly |

identifies the addressee (App. p. 361).

The intentionality of these actions by

both adversary entities can be termed

malicious when there is an element of

fraud, violence (intimidation and threat),

wantonness, and wilfulness or criminality.

It is not enough for them to declare that

they didn’t know all the facts to be

excused. They knew the law applicable to

Regular Army officers and illegally, by

threats, avoided the law (10 U.S.C. 3785),

in effect were joint tort feasors.

Recklessly! "...‘a private association’s

failure to afford procedural safeguards

may result in the imposition of damage

liability without inquiring into whether

the association’s action lacked

; substantive basis...’" (Greene v. U.S. 376

cae

Text 64

, U.S. 149 at 162). I made an appeal on 16

April 1992 from the denial by the district

court of a post judgment motion for

reconsideration based on new, relevant,

newly discovered evidence numbered 92-1440

in the Appeals Court (Companion Case

91-2027).

The whole history of this case, not

only the denial of this motion, which

involves relations and interrelations

between church and state, law, top secret

security regulations, Federal Code of

Regulations, Rules of F.R.C.P., Federal

Rules of Evidence, and equity and common |

sense may be described as a case of one

who writes a phony check to draw from

another’s assets, from another’s deposits,

causing loss, damage and injury and

continues to do so while casting blame on

another for responsibility for the phony

check. I should think that the courts

Text 65

would be alert to false conveyances. To

say that this petitioner has not been

diligent in attempting to discover the

truth is a monstrosity. The above written

and described history should be sufficient

to discredit that canard, if indeed, this

history is carefully read.

This saga also should be more than

sufficient to rebut any prior holding of

res judicata or statute of limitations, or

that the ABCMR was "not arbitrary or

capricious." Actually the Department of

the Army was in violation of Statutory Law

and still is. This petitioner prays that

fundamental justice be done and proper

redress be made. My reputation is at

stake!

Sincerely,

LI eA

Rev. Edward D. Cowhig, Pro Se

245 C.J. Cushing Hwy.

Greenbush, MA 02040-0154

(617) 545-4330

ee ee ee ee ce er eae)

_” -. -. * sa?

eS a oe,

SEND OSE CEP Aa 4

Service Made By Mail of Reformed Petition,

Ss 1993:

U.S. Solicitor General

Department of Justice

Washington, DC 20530

Army Board for Correction of Military

Records

The Pentagon

Washington, DC 20310

BRAG FEAR eG gt Bt ae

oe EN Ok a NB ERE EE ig RON BO Ge ALG PALES ALES SARE PR RE ah Lhe Pb

Surgeon General, U.S. Army

The Pentagon

Washington, DC 20310

The Chief of Chaplains, U.S. Army

The Pentagon

Washington, DC 20310

Parker, Coulter, Daley and White

Attorney Gary Busek

One Beacon Street

Boston, MA 02108

Assistant U.S. Attorney Annette Forde

Post Office and Court House Square

Boston, MA 02109

tree tance sh

COWHIG V. STONE, ET AL.

APPENDIX

TABLE OF CONTENTS

Cowhig, pro se v. V. Stone, Sec.

Army, Et Al.

Endnotes

Docket Sheet - Court of Claims (427-80C)

Order /Opinion

Docket Sheet -- U.S. District Court

(81-1616C)

Order /Opinion

Docket Sheet -- U.S. Court of Appeals

(lst Circuit - 82-1352)

Order /Opinion

Proceedings (Hearing ABCMR - 1983)

Memorandum (Exec. Sec. ABCMR,

28 March 1984)

Decision (ABCMR) Asst. Sec. 29 Mar 1984

Docket Sheet (86-2192)

PAGE

54- 58

50- 71

72- 89

91-102

95-102

as a).

a are hd ee

Rt,

Memorandum and Order on Settlement,

28 September 1987

Order/Opinion - Handwritten On Motion

Motion for Relief

Consolidation of Appeals

Docket Sheet - Court of Appeals

(1st Circuit - 88-1012)

Order /Opinion

Docket Sheet - U.S. District Ct.

(90-CV11297)

Order

Docket Sheet - U.S. Ct. App.

(lst Cir. - 91-2027)

Order /Opinion

Order/D. Ct. 5 Aug 91 Denying Motions

Filed Under Rule 52(b); 38(a) (b)

59, 60(a) (b)

103-108

109-112

113-120

121

122-130

131-141

142-152

153-155

156-163

164-173

174

*N.B. Motion - Reconsideration -

New Evidence and Misconduct of

Adverse Party

*N.B. Appeal from Rule 60 Denial

Docket Sheet - U.S. Ct. App. (92-1440)

Opinion

List of Letters (1962-1963)

letter to Cardinal Spellman, 1962

Letter of Lt. Gen. P.w. Caraway, 1979

Memorandum (ABCMR-1980)

Letter to Cong. Moakley from ABCMR, 1982

Letter from Archbishop Boston, 1982 -

Letter to Speaker J.W. McCormack

from petitioner, 1964

*N.B. Dept. of Amy to Speaker, 1964

letter from Speaker’s Assistant, 1964

Letter to ABCMR from petitioner, 1986

Response from ABCMR 23 May 1986

to petitioner and Cong. Studds

175

176

177-184

185-192

193

194-195

196

197-198

199-201

202-203

204-208

209-212

213-214

215-220

221-224

*List of Documents Rejected by ABCMR

*Lt. Gen. Caraway Letter to Petitioner,

1979

Letter to Dr. George W. Roark, 1985

letter of Dr. W. A. Rohde, 1985

Letter from Military Ordinariate

Bishop Joseph T. Dimino, 1984

Letter fram ABCMR 19 June 1984

Dept .

Affidavit of Col. (Ret. R.E. McMahon,

of Army (FOIA) (DMAI)7 Aug 1984

1985

Summary and Opinion-R.E. Loring Esq.

letter of John Roache, Esq., 1985

Lettor of Col. (Ret.) C.B.McCoid, 1985

letter of A. DeVico, Esq., 1985

letter of Irving Hurwitz, PhD, 1985

Letter of Lawrence Clark, MD, 1985

Letter of Edmund N. Kudarauskas, MD,

1985

225

226

227-229

230-241

242-244

245-248

249-250

251-260

261-269

270-276

277-282

283-292

293-314

315-317

318-325

* Letter of John Dowling, MD, 1986 326-329

Letter of Richard M. Kilfoyle, MD, 1985 330-334

Pages Regarding New Evidence 335-336

*Letter of George W. Roark, MD, 1991 337-345

*Letter of Thomas J. Kelly (Lt. Col. Ret,

6 August 1991) 346-347

*Letter of Thomas J. Kelly (Lt. Col. Ret.,

21 August 1991) 348-350

*Letter of Thamas J. Kelly (Lt. Col. Ret.,

23 August 1991) 351-352

*Letter of Dr. John A. Day, October 1991 353-360

N.B.* Letter of Lt. Gen Paul W. Caraway

1961 361-365

Letter to Cardinal Cushing, 1962 366-372

*Letter to Speaker fram Cong. Liaison,

1964 373-376

letter to Petitioner Fram Ch. Chap.,

1967 377-378

letter to Cardinal Cushing from M'l.

Ord., 1968

*Letter to Speaker McCormack from Ch.

Chap., 1968

Letter to petitioner from Card.

Medeiros

Letter to Speaker O’Neill fram

Cong. Correspondence Agency, 1978

Letter from Chancellor of Mil. Ord.

letter to Senator Tsongas from ABCMR

(1980)

Affidavit of Petitioner, 1986

Affidavit of Petitioner, 1981

Dept. Army, Ad. Gan., 1986

Motions in 90-11297 for Amendment

of Judgment, rules 52, 38, 59, 60

Bill of Rights

379-380

381-382

383-384

385

386

387-388

389-391

392-395

396-397

398-402

403-404

Vil

Statutory Law - 10 U.S.C. Regular Amny

(3785, 1185)

RICO - 18 U.S.C. 1961 Et. Seq,

Scope of Reviews 5 U.S.C. 706

Code of Federal Regulations (C.F.R.)

Access to Records 32 C.F.R. 581.3

Criteria for Faith Groups 32 C.F.R.

Private Ministrations, Sacraments

(510.1)

Federal Rules of Civil Procedure

(F.R.C.P.)

Rule 60(b)

Rules 1002, 1003, 1004

Certification of Official Military

Personnel File (OMPF)

405-407

408-409

410-412

410

413-414

415-416

417-418

419-420

421-422

Vill

Letter to Congressman Studds, 1980 423-424

Letter of Military Archdiocese, 1988 425

Declaration of Involuntary Release, 1974 427

Opinions Below 428-429

Jurisdiction 429

Constitutional Provisions Involved 430

Concise Statement of Grounds 430

A. N.B.Disposition Form #96 (24 Nov. 1961) to

Adjutant General from Chief of Chaplain’s office

Item #11, signed by Col. Bernard J. Fenton,

USA, under Remarks: "The ecclesiastical

indorsing agency will remove Chaplain Cowhig’s

ecclesiastical indorsement if his resignation

is not accepted" too camplex to be put into

Appendix. Full copy is in petitioner’s files.

B. N.B.List of all assignments in record kept in

Chief of Chaplain’s office in sequential order.

Three are cited here. Camplete copy in peti-

tioner’s files.

2nd Abn. Btl. Gp., 503rd Inf. Cambat team,

Apo. 50, SF, 10 June 1960 (66A)

Being medically evacuated from Okinawa (to

be RAD) (TWX to CG USARYIS)

Evacuated via air 6 October 1961 per TWx

fram CG USARYIS 7 October 1961 (DA in)

On second thought, the camplete copy of A

B above will make more sense to you and clarify

what happened in 1961 - apparently overlooked

by all below. - Inserted separately herein

in folded manner following the last two pages,

in the interest of clarity and justice.

ENDNOTES

(F.R.C.P.) 44(b) in regard to the lack of

record says: "A written Statement that after

diligent search no record or entry of a specified

tenor is found to exist in the records designated

by the statement, authenticated as provided in

Subdivision (a)(1) of this mle in the case of a

damestic record...is admissible as evidence that

the records contain no such entry or record."

* @itle 10 U.S.C. then 3785, now 1185,

stipulates under Rights and Procedures:

(a) Each officer under consideration for

removal from the active list of the Regular Army

under this Chapter shall be:

(1) notified in writing of the pendency of

any proceeding for his removal ;

(2) allowed reasonable time to prepare his

defense;

(3) allowed to appear in person and by

Counsel at proceedings before a board of inquiry

and a board of review; and

(4) allowed full access to and furnished

copies of records relevant to his case at all

stages of the proceeding.

32 CFR 64.4 (b)(v) states: Under (b) -

"Criteria for Ecclesiastical Endorsing Agencies;"

".+-each religious faith group shall: (v) "abide

by the applicable regulations and policies of the

Department of Defense."

* Q The record further indicates, and I

specifically refer I think to your statement of

23 September 1961, Colonel McMahon, that you had

a conversation, that you consulted a Colonel

Hannum who was the chief of neuropsychiatry at

the Okinawa hospital... (I, this petitioner

previously had a 15 minute conversation with

Doctor Hannum at which he asserted that they had

a great deal of difficulty handling bachelor

[celibate] chaplains.) (Supplied now by this

petitioner and previously in my pleadings. Dr.

Hannum had no knowledge of the critical situation

then prevailing. )

A Yes.

Q ...and that it was related to you that

the best environment for the Applicant, according

to Dr. Hannum, would have been to send him back

to CONUS.

A Yes, but I’d like to elaborate on that

later.

Q Please.

A Any time you say. Actually, in going

back and looking at this case, this man was

suffering from hypertension and nervousness, and

it was associated with the use of alcohol, I

guess, to take care of what was going on.

When I spoke to Hannum, Captain Hannum or

Major Hannum, he mentioned to me, now remember

I’m a layman, I don’t know anything = about

medicine, he mentioned the best thing to do with

him would be to put him on Alcoholics Anonymous.

And if that didn’t work then ship him back to the

States.

Well, I knew I had a gem _ in this man; in

fact as far as I was concerned he was the number

one_in the Army as far as chaplains were

concerned and I looked at him as being the future

Chief of Chaplains, is what I thought of the man.

So here was the case here of a man being

recommended to go on AA. I said all right, this

is what the medics say, that’s the only way we

can help the man.

Now remember, I got a unit on training

cambat and all like that, my mission is is there

and I wasn’t giving him too mich thought maybe,

which I should have given to the man. I knew

that because I had a wife and five children over

there, so I had a cammnication with the

dependents. I had people like McCoid, he’s one

of the many fine officers I had as well as

Sergeant Roeigiers, real good people. They

wouldn’t allow any scandal out there. Well, as

soon as this fellow goes dowm into the AA,

scandal would came up from all channels.

I wasn’t really thinking, to tell you the

truth, at that time. It’s what the doctor said

and that’s where I---and I say this is where the

problem started. This is where I should have

been thinking more and this is where I got the

wrong dope, from the doctor. So here I am saying

well, now I’m helping the guy, I should say

Father, and I wasn’t I was destroying him. I

utterly destroyed the guy because I put himin a

position...

(Witness becomes emotionally upset. )

Counsel: Are you all right, Colonel?

Chairman: Just take a few minutes to

campose yourself, Colonel. It’ll be all right.

Take your time.

(Witness continues upset for a few seconds.)

Counsel: Might I suggest...

A No, Icangoon. So I put him in a

position where he was realiy frustrated. I have

the efficiency report here. You people refer to

48A, that’s Colonel McCoid’s...

Counsel: That’s Exhibit 48A you’re

referring to?

A That’s 48A. If you look on page 2, "a"

paragraph, 10 lines up, here is Colonel McCoid:

"I am ashamed to admit that on at least two tests

I instructed Father Cowhig..." et cetera, et

cetera, "...let them go to hell."

So here’s the executive officer telling this

lowly captain, as far as USARYIS, "tell them to

go to hell." Here I am, a colonel, telling him

to go to AA.

So here is the man right in the middle.

What is he going to do? What would you do? = You

would have blown your stack, that’s what you

would have done. This man was remarkable that he

was able to stay in and do his job.

problem, because what you had here, and I didn’t

know it and the doctor I guess didn’t even know

it, that this man had hypertension and

nervousness, counter-balanced with the so-called

use of alcohol. Well, the use of alcohol might

have been minor then, but as soon as he moved

into the AA he got a stigma attached, and

everything was from then on he’s a drunk and

associated with liquor and so on. That was not

the case.

So what had happened was that we should have

in the Army treated this person for this medical

field, and instead this was overshadowed by the

use of alcohol. And that’s what I say the whole

thing °

Now, I’d say the whole cause of this, three

people. I’d say this guy, I’d say Father Walsh

was €a vain, opinionated, jealous of his

authority, and all this business here that came

up about the scandal, morale and welfare about

this guy, a bunch of lies.

Father Walsh tied in with a personality here

that overshadowed him, and he was on a senior

level. At this time I was down there and I was

banging into the staff from the line. And then we

ran an operation in Hiramota (phonetic), an

island close by, so we could get jungle training

for our men, E and E, evasion and escape.

We sent one of our officers to Malasia, to

the British jungle school. He came back and said

it was wonderful. So here I am, I thought boy, I

got samething really going. The next thing I’m

called in from USARYIS for tearing up the land

because it was the Okinawans’ area where they

wanted to live and so on.

Right away we started to get same behind the

eight ball, the novelty wore off. When we first

arrived there we had---so we would ingratiate

ourselves with the command who we called Legs,

incidentally, they were paratroopers, and when we

came in there we came in as a combat unit with

one idea, going into Southeast Asia. That’s the

way I_was briefed. And we were going into

Southeast Asia and we came into Okinawa as a

quiet, tranquil area.

The first few days we were there, you know,

get in nice with the command and tell them, so we

set up sky diving. We had five people jump out,

the winds were up and they were caming down and

thought they opened pretty good and the last one

I thought he was going in and who was it? Father

Cowhig.

The men were crazy about him, doing stuff,

just risking his life and all that stuff.

I just wanted to mention that I see the

cause of this, one fram Hannum, one from Walsh,

and one from me, for not having the foresight to

look in and take care of the guy. That’s the way

I look at it.

Q Colonel McMahon, if I may, the record

indicates, in certain elements of the record it

is indicated that the Applicant was relieved fram

command when his assignment was terminated...

A No...

. A We had been assigned a responsibility for

participating in a airborne entry into Laos with

the probability of dropping on the city of Hai

Binh Khouang and also to seize the Nong Khay

Ferry by drops, both north and south of the

river, so that larger numbers of American forces,

particularly the 3rd marine Division, would be

able to came in and secure the area. At the time

when Captain Kuong Lai had seized the government

temporarily and when the center- and right-wing

elements under Saravane Phu Bia and Phy Menovason

were particularly active and the United States

was very mich concerned because of the activity

of the Chinese on the northern frontier, and,

also, or course, the diversionary strength of

North Vietnam and their apparent aggressive

intentions there.

Q Colonel McCoid, at the time in question,

was the mission or the missions of your

organization of a classified nature?

A They were, highly classified, indeed.

Q Were some of these missions--I don’t want

to breach security--I have no security clearance

at this time--were missions of your organization

made known to the Applicant at that time?

A They were made known to the Applicant

because he was an important member of our staff

and essential to our success in battle. They

were not broadly known on the island of Okinawa.

they were known by the planning staffs, 9th

Corps; they were known to the planning staff of

the 3rd Marine Division and to our om people.

But, certainly, anyone without the need to know

was not given access to these.

Q Now, how frequently would you have

contact with the Applicant in this time frame

between June of 1960 and October of 1961?

A On an official basis, I would talk to him

with great regularity, two or three times a week,

but I saw him every day, and on a_ social basis,

of course, I saw him--we were a small, cohesive

organization, rather ingrown, perhaps, and I__ saw

him a great deal there.

Q Would this be including after-duty hours?

A Oh, yes. It was a close--quite close,

personal relationship, actually. Q All

right. Now, as far as offices were concerned,

where was your office in relation to the

Applicants?

A We were both on the second floor of the

Headquarters Building and the entrances to our

offices were diametrically, or diagonally

Opposite, I should say.

Q Incidentally, what was the size of the

island?

A Well, it was 67 miles long--and statute

miles--and it could be at one point as wide as 16

miles and as narrow at one point as just over a

mile. It was small and constricted.

Q In that statement, Colonel, you mentioned

the matter of pressure--pressure--the Applicant

being under pressure--and Counsel has indicated

to the Board in his opening remarks that one of

the factors that we feel are significant as far

as the Applicant’s functioning during this time

interval, particularly the June ‘’60-October ‘61

time frame, particularly in 1961, the matter of

their being essentially two chains of cammands,

two echelons of command, that he had to deal

with, each making demands upon him, one being

your organization and one being from the USARYIS,

9th Corps, particularly the one of the senior

chaplain, at all times relevant to the case, Rev.

Walsh. Is it in fact and was it in fact a

significant factor bearing upon the Applicant’s

performance of duty or his ability to perform

duty during this time?

A It certainly would have been. From my

point of view, I should say that--

Q Please.

A --his performance of duty was always

marvelously fine. I could never have reproved

him for any failure. He was a classic example of

what a chaplain should be. Now, I’m not a

Catholic and I do not know whether his

performance of all his Catholic functions met

muster with his ecclesiastical superiors. Fram

the soldier’s point of view, had I carved one

fram stone, I would not have had a better man

than this.

Q And did this prevail throughout his

entire tour of duty?

A In my experience, it certainly did. He

was never, never found wanting in any particular.

Q And is the Board to understand--Counsel

has mentioned this conflict--how did this--as you

perceived it and observed it, how did this

conflict affect his operating?

A Well--

Q What do you recall? Can you recall any

specific circumstances that you can--

A He was a noncomplainer, but he was on

occasion put into impossibly difficult situations

and I was sometimes the author of these. We

would have operational requirements and at the

same time he would have been assigned area

coverage responsibilities by Captain Walsh, who

was the Senior Catholic Chaplain, whose

responsibilities were chaplain coverage,

island-wide. And where these clashed he required

guidance and he would came to me and say, "Here,

I face these two conflicting requirements,

demands on my time. Which has priority?" I used

to say to him, "Chaplain, where are you assigned?

Who writes your efficiency report? And if that

leaves you with any doubt, you tell them to go to

hell, because you belong to us and you’re going

with us, and I don’t care whether these other

requirements are met. You belong to this

organization." I was a Lieutenant Colonel. He

was a Captain. It was unfair of me to have told

him to tell them to go to hell, but I did. I

suppose I was a bit less mature than I am now.

Q Did you in fact use such language?

A Oh, yes, certainly.

Q In fact, it may be tempered under the

circumstances?

A Well, I wouldn’t have used anything much

more profane than that, certainly, but I would

have asked them told them to.

Q Did the chaplain comply with your wishes?

A I am sure he did not. I’m sure he did

not. He is a few years older than I am amd I

think probably he understood the proper

approaches to be used and I’m perfectly persuaded

that he never communicated that to higher

headquarters.

Q No. What I’m saying, Colonel, he did

obey--

A He obeyed our instructions, yes. Yes, he

certainly did.

Q And you had a realization that this was

causing him--

A I didn’t know what it was causing to him

internally, but I certainly knew that he was

under--I can apply pressure and I applied it in

his case and there was no doubt left in his mind

as to where he was to be.

Q Now, when you went on these missions.

For instance, is the Board to understand you went

to the Philippines?

Yes.

Korea?

Yes.

And where else?

r Oo PrP OD O

Taiwan.

Q At those times, were your specific

missions highly-classified missions, or the plans

for them?

A Yes, they were certainly classified.

They were classified at secret level, as all

planning or exercises were at the time.

Q Now, is the Board to understand as far as

the Applicant went to Rev. Walsh who may have

made some--say do this or do that or do something

else, sorry, I’ve got to go off with my unit--is

it not a fact that the Applicant would not have

been able to disclose the specifics of the

actions or the operations?

A No. He would not have been because

Chaplain Walsh did not have a need to know.

Q And was the information on a need-to-know

basis?

A Yes, yes.

Q Did you perceive--and I believe in your

statement--I may be wrong--but it seems to me

that in your statement you indicated that he was

antagonizing his ecclesiastical superiors by

complying with the needs of his organization?

A- Yes. I felt he had to be because he was

not able to camply with them...

Q Did you at any time observe the applicant

under the influence of alcohol?

A Never...

Q Would you describe his personality and

his overall makeup one being a hard charging,

hard driving individual?

A One of the most aggressive and effective

chaplains I’ve ever seen. Our people weren’t all

Catholics by a long shot. We had same people who

didn’t believe in anything other than their om

physical powers, but they trusted him, they

confided in him and I suppose the word "love" is

extreme but perhaps a good number loved him.

testimony, you’re aware that the nature of the

request of the Applicant, namely, that he’s

requesting the voiding of his discharge in 1962

with a correction of the records to show that he

continued on active duty until he had campleted

sufficient service, either 20 or 30 years, to

retire, and then, thereafter, be retired by

reason of years of service. You’re aware of the

nature of the request?

A I’m so advised by Counsel.

Q All right. And in connection with the

correction of the records, as a matter of law one

would ordinarily need to be deemed ready, willing

and able to serve on active duty. In that

regard, is it the essence of your testimony that

he could have been treated in 1961 by campetent

medical authority and returned to duty? Is _ that

the essence of your conclusions? I’m getting the

cart before the horse, but is that the essence of

your conclusions?

A That’s my opinion...

7 As you will recall in my testimony before the

ABCMR I drew upon my 5-hour _ psychiatric

examination of you on September 7, 8 and 23,

1983, plus the report from Wolfgang Riedel,

Ph.D., of his 3 hours of psychological testing on

September 9, 1983. The opinion expressed in the

Dissent that my examination was invalidated by

the twenty plus years that had passed since your

illness on Okinawa (1961-61) does not take into

account the intensity, thoroughness and

sophistication of your 8 hour examination by Dr.

Riedel and myself. The Dissent also shows

naivete in assuming that the "facts" I adduced

from my examination were based solely on your

verbalized memory of events in your life twenty

years earlier. Another implication in the

Dissent was that my clinical judgment was

impaired or ofessionally influ by my

retention by your attorney for the sole purpose

of facilitating his presentation of our case. I

interpret this implication as suggesting that my

conclusions were less than objective, if not

myopic in effect; and that my motive in accepting

your case was less than professional, both of

which implications I reject outright. The

Opinion of the Board (which consisted entirely of

non-medical members) should have been reached on

the basis of weighing all the ffacts, as

presented, not (as in the Dissent) devaluing the

conclusions of the examining psychiatrist and

psychologist."

"The essence or central point of my

examination findings and conclusion was that your

illness on Okinawa in 1961 was due to a

psychoneurosis, (generalized anxiety disorder)

which you were attempting to self-treat through

increasing your use of alcohol ffor its

tension-reducing and sedative effects. I believe

that had your condition _ been accurately

diagnosed, and had appropriate treatment been

ided tent mili medical sonnel

in_ 1961 or 1962, that your symptams could have

been mitigated or resolved and you then could

have returned to duty."

"As_to Dr. Franklin’s inexperience and

questionable competence, the absence in the

narrative summary of your Walter Reed General

Hospital (WRGH) hospitalization of any reference

to the psychologically traumatic loss of your

mother, or to the’ childhood experiences

sensitizing you to the possibilities of

mutilating injury or death would suggest the

same. Presumably, he was supervised in his work

so that the failure to secure senior psychiatric

consultation and psychological testing may not be

laid entirely on him.

The absence of any medical or psychiatric

treatment at WRGH is not surprising, given the

guarded prognosis ffor rehabilitation and

recommendation for "administrative disposition"

of case Dr. Franklin. Once again, I

alli aa aati a ir tb Ar eat

believe that the outcame of your hospitalization

at WRGH represented an error in the diagnosis and

medical management of your case. Had you been

diagnosed as having an anxiety disorder and

treated appropriately for it, I believe there

~- would have been a _ favorable prognosis _for

remission of your symptams, allowing you _to

return to your military duties.

I believe the notation in the transcript "no

audible response" to a question by Mr.

Kabatchnick concerning whether I thought your

condition was in the line of duty (LOD) or

whether it had existed prior to service (EPTS)

reflected my uncertainty as to whether or not I

had fully understood his question. I did clarify

My Opinion on those questions on the bottom of p.

204, "I think...he was clearly in the performance

of his military duties (LOD) and...I doubt that

it (the condition of abuse of alcohol, manifested

by excessive alcoholic intake under stressful

situations) existed prior to service."

Finally, you asked me to clarify my response

to a Board member (Mr. Hobbs) asking me to

comment on whether your seeking justice and fair

treatment from the Amny via your petition to the

ABCMR amounted to "a crusade." I found my reply

on a page numbered "215B": I don’t know whether

he thinks of himself as a crusader. I think he

may well function in that capacity, in terms of

how diligent he’s been in persevering in bringing

his case to the attention of the authorities.

(See appendix)

. "At this point President Eisenhower stated

that Laos is the present key to the entire area

of southeast Asia. If Laos were lost to the

Communists, it would bring unbelievable pressure

to bear on Thailand, Cambodia and South Vietnam.

President Eisenhower stated that he considered

Laos of such importance that if it reached the

stage where we could not persuade others to act

with us, then he would be willing ‘as a last

desperate hope,’ to act unilaterally..."

Also pertinent in this situation and in

regard to Question 10 am 11, in questions

presented, is the official teaching of my Church,

in effect in 1961 by Canon Law and later (1965)

confirmed by the assertion of the Second Vatican

Council, "The Church, at all times, carries the

responsibility of reading the sians of the times

and interpreting them in the light of the

Gospel." (Pastoral Constitution of the Church

in the Modern World, No. 4)

’ Rules of Evidence in regard to Records:

Rule 1002 - Requirement of original - to

prove the content of a written recording or

photograph the original, writing, recording, or

photograph is required unless as_ otherwise

provided in these rules or by an Act of

Congress.

Rule 1003 - a duplicate is admissible to the

same extent as an original unless 1) a genuine

question is raised as to the authenticity of the

original, of 2) in the circumstances it would be

unfair to admit the duplicate in lieu of the

original.

Rule 1004 - Admissibility of other evidence

of contents - The original is not required, and

other evidence of the contents of a writing,

recording, or photograph is admissible if 1)

originals lost or destroyed. All originals are

lost or have been destroyed, unless the proponent

lost or destroyed them in bad faith; or 2)

original not obtainable. No original can be

obtained by any available judicial process or

procedure; or 3) original in possession of

Opponent. At a time when the original was under

the control of the party against wham offered

that party was put on notice, by the pleading or

otherwise, that the contents would be a_ subject

of proof at the hearing, and that party does not

produce the original at the hearing; or 4)

Collateral matters - the writing, recording or

photograph is not closely related to a

controlling issue.

Notes of Cammittee on the Judiciary, House

Report number 93-650. the committee approved

Rule 1004(1) in the form submitted to Congress.

However, the cammittee intends that loss or

destruction of an original by another person at

the instigation of the proponent should be

considered as tantamount to loss or destruction

in bad faith by the proponent himself.

Federal Rules of Evidence

Rule 1005 - The contents of an official

record, or of a document authorized to be

recorded or filed, including data compilations in

any form, if otherwise admissible, may be proved

by copy, certified as correct in accordance with

Rule 902 or testified to be correct by a witness

who has compared it with the original. If a copy

which complies with the foregoing cannot be

obtained by the exercise of reasonable

diligence,then other evidence of the contents may

be given" (but the government certified under

seal that my Official Military Personnel File

MIE eo, "5

ANS hk SU REE LN

(OMPF) was "true and exact" without any General

Caraway document).

Rule 803 - Federal Rules of Evidence; 803,

in regard to hearsay exceptions, the following

are not excluded by the hearsay rule, even though

the declarant is available as a witness. (10)

Absence of Public Record or Entry - To prove the

absence of a record, report, statement or data

campilation in any form, or the non occurrence or

non existence of a matter of which a _ record,

report, statement, or data compilation in any

form was regularly made and preserved by a public

office or agency, evidence in the form of a

certification in accordance with Rule 902, or

testimony, that diligent search failed to

disclose the record, report, statement or data

compilation, or entry.

Rule 902 - Extrinsic evidence of

authenticity as a condition precedent to

admissibility is not required with respect to the

following: 1) Domestic public records under

seal. A document bearing a seal purporting to be

that of the United States...or of a political

subdivision department, officer or agency

thereof, anda _ signature purporting to be an

attestation or execution. 4) Applies to certified

copies of public records.

Domestic. An official record kept within the

United States, ...when admissible for any purpose

may be evidenced by an official publication

thereof or by a copy attested by the officer

having the legal custody of the record.... The

certificate may be made...or may be made by any

public officer having a seal of office and having

official duties...in which the record is kept

authenticated by the seal of the officer’s

office.

10 (d) "The President shall from time to time

examine the organization of all agencies and

shall determine what changes in such organization

are necessary to carry out any policy set forth

in subsection (a) of this section." Title of

interest now is 5 U.S.C. 901(a), "The Congress

declares that it is the policy of the United

States to promote the better execution of the

laws...."

At 706 - To the extent necessary to decision

and when presented, the reviewing court shall

decide all relevant questions of law, interpret

constitutional and statutory provisions, and

determine the meaning or applicability of the

terms of an agency action. The reviewing court

shall:

(1) compel agency action unlawfully withheld

or unreasonably delayed; and

(2) hold unlawful and set aside agency

action, findings, and conclusions found to be--

(A) arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with

law;

(B) contrary to constitutional right, power,

privilege, or immmnity;

authority, or limitation, short of statutory

right;

(D) without observance of procedure required

by law;

(E) unsupported by substantial evidence in a

case subject to sections 556 and 557 of this

title or otherwise 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 determinations, the

courts shall review the whole record or those

parts of it cited by a part, and due account

shall be taken of the rule of prejudicial error.

(B) On camplaint, the district court of

the United States in the district in which the

complainant resides, or has his principal place

of business, or in which the agency records are

situated, or in the District of Columbia , has

jurisdiction to enjoin the agency from

withholding agency records and to order the

production of any agency records improperly

withheld fram the complainant. In such a case,

the court shall determine the matter de novo, and

may examine the contents of such agency records

in camera to determine whether such records or

any part thereof shall be withheld under any of

the exemptions set forth in subsection (b) of

this section and the burden is on the agency to

sustain its action.

Access to records (i) the applicant will be

assured access to all official recordes that are

necessary to an adequte presentation of his case

consistent with regulations governing privileged

or classified material. It is the responsibility

of the applicant to procure such evidence not

contained in the official records of the

Department of the Ammy as he desires to present

in support of his case.

Legendary brigand said to be the son of

Poseidon who lived between Athens and Eleusis.

He ensnared strangers with hospitality, then

seized them and fastened them into a bed which he

then made fit, cutting short their limbs if they

were too long for it or racking them if they were

too short. Theseus applied the same treatment to

Procrostes and cut off his head. [Oxford

Campanion to Classical Literature, p.- 464. Ed.

M. C. Howatson, New Edition, 1989}

General Docket - Court of Claims

Case No. 427-80C

EDWARD D. COWHIG

vs.

THE UNITED STATES “4

Service Pay - Army

Attorneys

For PLF:

Reverend Edward D. Cowhig

245 Cardinal Cushing Highway

Greenbush MA 02040

Pro se

For U. S.:

Alexander Younger

Petition Filed Aug 12 80

5 Copies of Petition to Defendant

Amount Claimed: Not Stated

Plaintiff’s Address: See Above

Date

Aug 12

Sep 3

Oct 14

Nov 24

Jan 12

1980

1981

Case No. 427-80C

Filing fee of $10 paid by

plaintiff.

Notice of reference to Trial Judge

C. Murray Bernhardt filed. Copy to

parties.

Defendant’s answer filed. Copies

(5) to atty.

Defendant’s motion to dismiss or,

in the alternative, for summry

judgment filed. Copies (5) to

atty.

Administrative Record (in one

volume) filed.

Defendant’s motion to _ waive

reproduction of the administrative

record filed. Copies (2) to atty.

ALLOWED DEC 10 1980.

Submitted to the court on

defendant ’s motion to dismiss or,

Feb 27 1981

Mar 6 1981

Mar 16 1981

in the alternative, for summary

judgment.

Court filed order dismissing

plaintiff’s petition. Copy to

parties.

Plaintiff’s motion to revoke order

of dismissal and permit hearing on

defendant’s motion to dismiss and

for summary judgment filed. Copy

to deft. SEE COURT ORDER OF APR 3

1981.

Defendant ’s response to plaintiff’s

motion to revoke order of dismissal

and permit hearing on defendant’s

motion for summary judgment filed.

Copies (2) to atty.

Apr 3 1981 Court’ entered order denying

plaintiff’s motion of March 6,

1981. Copy to parties.

IN THE UNITED STATES COURT OF CLAIMS

NO. 427-80C

Edward D. Cowhig

The United States

Edward D. Cowhig, Pro se

Alexander Younger, with whom was Acting Assistant

Attorney General Thomas S. Martin, for defendant.

Before NICHOLS, Judge, Presiding, BENNETT and

SMITH, Judges.

ORDER

This action is before the court. on

defendant ’s motion to dismiss on the ground that

plaintiff’s claim is barred by the statute of

limitations or in the alternative for summary

judgment on the ground that there is no genuine

issue as to any material fact. Plaintiff has not

responded to this motion.

Plaintiff, Edward D. Cowhig, is a Roman

Catholic priest. He was discharged fram the Amy

Chaplain Corps on January 22, 1962, following his ;

voluntary resignation. He now seeks to have that

discharge declared null and void and requests

that this court remand the action to the Anny

Board for the Correction of Military Records and

direct the board to expunge his_ records.

Plaintiff also seeks money damage sin an

unspecified amount.

All claims brought against the United States

must be commenced within six years after the

right of action first occurs or they are barred.

28 U.S.C. 2401(a) (1976). A claim for active

duty pay accrues upon the discharge of the member

form the service. Since this action was not

brought until 18 1/2 years after discharge and

the right of action occurred, it is barred by the

statute of limitarions. We need not address

other defenses caused by the government or the

merits of the cause of action.

IT IS THEREFORE ORDERED, that defendant’s

motion to dismiss be and the same is granted,

plaintiff’s petition is dismissed.

BY THE COURT ’

(SIGNED)

PHILIP NICHOLS, JR.

JUDGE

DIST OFF DOCKET YR/NO FILING DATE J N/S O

101 1 81/1616 6 25 81 2 890 1

JUDGE NO COUNTY DOCKET YR/NO

0110 25023 81 1616-C

PLAINTIFFS

EDWARD D. COWHIG

(CITE THE US CIVIL STATUTE UNDER WHICH THE CASE

IS FILED AND WRITE A BRIEF STATEMENT OF CAUSE)

OTHER - 28 USC 1361 - Plaintiff seeks order

campelling Secretary of the Army to order hearing

before the Army Board for Correction of Military

Records.

ATTORNEYS

Alexander F. X. Matulewicz, esq.

Six Beacon St.

Boston MA 02108

742-6677

AUSA GREG FLYNN

CA 81-1616-C

NR.

PROCEEDINGS

Camplaint, FILED. Summons issued.

Deft.’s motion to. dismiss, FILED.

Memorandum of points and authorities in

support of same attached and FILED. cs.

Pltff.’s motion for enlargement of time to

file memorandum in opposition to deft.’s

motion to dismiss, FILED. cs.

CAFFREY, CH. J., re: #3 MOTION ALLOWED.

TIME EXTENDED TO 10-23-81. cc/cl.

Pltff.’s motion for enlargement of time to

file memorandum in opposition to deft.’s

motion to dismiss, FILED.

CAFFREY, CH. J., re: #4 MOTION ALLOWED.

TIME EXTENDED TO 10-26-81. cc/cl.

Pltff.’s reply to deft.’s motion to

dismiss, and memorandum in support of same

attached and FILED.

CAFFREY, CH. J., re: Case called for

hearing on deft.’s motion to dismiss;

arguments; motion taken under advisement.

CAFFREY, CH. J., MEMORANDUM AND ORDER

ENTERED...1) Deft.’s motion to dismiss is

allowed. 2) Complaint dismissed; ‘judgment

for the deft. cc/cl, BNA, NCAI, CCH, MLW &

MS.

Notice of appeal filed. c/s FF Pd.

Certified copy of docket & Original

pleadings forwarded to court of appeals.

Opinion received from the Court of Appeals

entered. ..affirmed.

Mandate received from the Court of Appeals

entered. ..affirmed.

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

EDWARD D. COWHIG

PLAINTIFF CIVIL ACTION NO. 81-1616-C

March 31, 1982

CAFREY, Ch.J.

This is a civil action, in the nature of

mandamis, in which the plaintiff, Edward D.

Cowhig, asks the Court fo compel "an officer or

employee of the United States...to perform a duty

owed...." 28 U.S.C. 1361. Specifically, the

plaintiff requests that this Court order the Amny

Board for the Correction of Military Records

(ABCMR) to hold an evidentiary hearing to

determine whether or not the plaintiff’s

discharge from active duty was improper and

should be declared null and void. The plaintiff

seeks a further order enjoining the ABCMR’s

consideration of evidence of his hospitalizations

in 1960 and 1961 during such hearing. The

defendant has moved to dismiss the action on the

grounds that the plaintiff’s claim is barred by

the doctrine of res judicata, the statute of

limitations and the doctrine of laches. After

hearing, I rule as follows.

In 1960, the plaintiff was a chaplain in the

United States Army stationed in Okinawa. It is

undisputed that prior to 1960, the plaintiff had

maintained an exemplary service record. During

1960 and 1961, the plaintiff was hospitalized on

four separate occasions for treatment of

alcoholism. the plaintiff’s final officer

efficiency report, dated October 7, 1961, stated

that he was an outstanding officer whose

performance had fallen below acceptable standards

due to alcohol abuse. On November 7, 1961, the

plaintiff tendered his unqualified resignation

from active duty. The resignation was accepted

on January 28, 1962, and the plaintiff received

an honorable, voluntary discharge.

In 1974, the plaintiff petitioned the ABCMR

for a change in his discharge status. The Board

held a lengthy hearing at which the plaintiff

testified. After hearing and after examination

of all the pertinent documents, the ABCMR found

that the plaintiff’s separation from the Anny

with an honorable discharge was in accordance

with the regulations in effect in 1962. The

Board also found, inbiaioetie; that the plaintiff had

resigned under duress since his ecclesiastical

endorsement had been withdrawn. Consequently,

the Board ordered that the plaintiff’s records be

corrected to show that his honorable discharge

was involuntary.

On April 13, 1977, the ABCMR agreed to

review an application by the plaintiff that it

reconsider the 1974 decision and declare that his

release from active duty in 1962 was null and

void. The Board considered the entire

administrative record and denied the plaintiff’s

request without a hearing, stating that the

plaintiff had failed to show "probable material

error or injustice." On September 24, 1979, for

a third time, the ABCMR agreed to review the 1962

discharge. The Board reached the same conclusion

as it had in 1977 and dismissed the plaintiff’s

claim without a hearing on March 26, 1980.

Thereafter, the ABCMR received several inquiries

from members of congress and once again agreed to

consider the plaintiff’s request for relief. the

Board reOexamined the administrative record and

additional evidence presented by the plaintiff.

On September 10, 1980, after extensive analysis

of all the evidence before it, the Board once

again dismissed the plaintiff’s claim without a

hearing.

While his last petition was pending before

the ABCMR, the plaintiff filed suit against the

United States in the Court of Claims. The

plaintiff sought to have his discharge declared

null and void and to obtain unspecified money

damages. On February 27, 1981, the Court of

Claims allowed the defendant’s motion to dismiss

the plaintiff’s petition. The Court of Claims

ruled that the cause of action had accrued in

1962 when the plaintiff was discharged fran

active duty and that consequently, the six-year

statute of limitations barred the plaintiff’s

claim.

On June 25, 1981 the plaintiff commenced the

present action against the Secretary of Army as

the person authorized to order the correction of

military records through the ABCMR. See 10

U.S.C. 1552(a).

Asserting that the Court of Claims decision

involved the issue of whether the ABCMR “abused

its discretion" by refusing to declare’ the

plaintiff’s discharge null and void,’ the

defendant argues that the instant action presents

the identical issue and is, therefore, barred by

the doctrine of res judicata. I agree.

A judicially created doctrine, res judicata

makes a final, valid judgment binding and

conclusive on the parties with respect to "all

matters, fact and law, that were or would have

been adjudicated in the proceedings." 1B Moore’s

Fed. Prac. 0..405(1) (1974) at 624. See e.g.

Lawlor v. vational Screen Service Corp., 349 U.S.

322 (1955). A party asserting res judicata must

prove that the parties are the same, that the

earlier judgment was final, and that the cause of

action resolved by a final judgment was the same

as that presently asserted. See e.g.

Missour-Kansas Pipe Line Co. v. United States,

312 U.S. 502 (1946).

I rule that the defendant has done so here

and that the doctrine of res judicata bars the

present action. First the defendant has shown

the required identity of parties between the

prior action and the present action. The fact

that the plaintiff nominally has brought the

present action against the Secretary of the Armny

does not disguise the reality that he still is

pursuing a claim against the United States. A

suit brought against "an officer of the United

States is a suit against the United States

itself." Hawaii v. Gordon, 373 U.S. 57 (1973).

Second, the Court of Claims clearly entered a

final judgment when it ruled that the statue of

limitations barred the plaintiff’s claim.

Finally, the plaintiff seeks the same ultimate

relief as he sought in the Court of Claims and

his contention that he seeks only a hearing

before the ABCMR simply exalts form over

substance.

Plaintiff seeks a hearing before the ABCMR

only in the hope that it will culminate in an

order that plaintiff recover back pay previously

denied as a result of several earlier

administrative and Court of Claims rulings. The

real purpose of this present case is to

ultimately gain the previously denied back pay.

As was stated in Mathis v. Laird, 324 F. Supp.

885 (M.D. Fla, 1971):

Plaintiff had his day in court. He

brought this same claim before the

Court of Claims which after

consideration dismissed it on the

ground that it was barred by the

statute of limitations. Plaintiff

cannot now file a new suit in a

different court...and relitigate his

claim.

Id. at 888; see also Boruski v. United States, 70

F.R.D. 553 (D. Mass., 1976) (present action an

effort to relitigate earlier claim; barred by res

judicata) .

Therefore, I rule that the doctrine of res

judicata bars plaintiff’s claim and that the

defendant’s motion to dismiss should be allowed.

Order accordingly.

Signed: Andrew A. Caffrey, Ch.J.

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

CIVIL ACTION

NO. 81-1616-C

ORDER

March 31, 1982

CAFFREY, Ch. J.

In accordance with memorandum filed this

date, it is ORDERED:

1. Defendant’s motion to dismiss is

allowed.

2. Camplain dismissed; judgment for the

defendant.

Signed: Andrew A. Caffrey, Ch.J.

GENERAL DOCKET

UNITED STATES COURT OF APPEALS

FOR THE

FIRST CIRCUIT

APPEAL FROM UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF MASSACHUSETTS

CASE NO. 82-1352

TITLE OF CASE

EDWARD D. COWHIG

Plaintiff, Appellant,

JOHN O. MARSH,

SECRETARY OF THE ARMY,

Defendant, Appellee.

ATTORNEYS FOR APPELLANT

Edward D. Cowhig, Pro se

245 Chief Justice Cushing Hwy.

Greenbush MA 02040

545-4330

ATTORNEYS FOR APPELLEE

Gregory C. Flynn, Esquire

1107 P.O. & Courthouse

Boston MA 02109

223-1755

No. Below: C.A. 81-01616

Judge Below: Caffrey, J.

Date of Order: March 31, 1982

Notice of Appeal Filed: April 14, 1982

(request for hearing)

Fees paid

GENERAL DOCKET

UNITED STATES COURT OF APPEALS

FOR THE

FIRST CIRCUIT

CASE NO: 82-1352 EDWARD D. COWHIG V. JOHN O.

MARSH, SECRETARY OF THE ARMY.

DATE - FILINGS~PROCEEDINGS

1982

April 20 Copy of notice of appeal and district

court docket entries received and

filed and case docketed. Notices

mailed. (cb)

Apr. 23 Record on appeal consisting of one

volume received and filed. Notices

mailed. (1b)

Apr. 23 Appearance of Gregory C. Flym,

Esquire for appellee received and

filed. (1b)

Apr. 28

May 26

June 10

June 16

July 1

July 29

Appearance of Edward D. Cowhig, Pro

se for appellant received and filed.

(1b)

Statement of issues received and

filed. (1b)

Motions filed. Order (Campbell, J.)

granting leave to the parties to refer

to the original record without

reproduction in appendix form = and

enlarging the time for filing the

brief for appellant to June 10, 1982.

Notices mailed. (cb)

Brief for appellant received and

filed. Notices mailed. (lb)

Request for oral argument received and

filed. (lb)

Brief for appellee received and filed.

(1b)

Order (Campbell, J.) granting

appellant’s request for oral argument.

Aug. 23 Assigned for hearing at the September,

1982, session. Notices mailed. (cb)

Sept. 17 Heard by Davis, Campbell and Breyer,

JJ. (as)

Nov. 22 JUDGMENT: The judgment of the

district court is affirmed. Opinion

of the court by Davis, J. Notices

mailed. (lb)

Dec. 6 Petition for rehearing and rehearing

en Banc, received and filed. (as)

Dec. 17 ORDER: (Coffin, Ch.J., Davis,

Campbell, Bownes and Breyer, JJ)

denying the petition for rehearing and

rehearing en banc. Notices mailed.

Dec. 28 Taxation of costs filed. Mandate

issued, copy file and original papers

to follow. Notices mailed. (lb)

1983

Jan. 14 Original papers returned to _ the

district court. (lb)

Mar. 21 Petition for certiorari filed Supreme

Apr. 21

Court (No. 82-6395) March 16, 1983.

(ar)

Order of Supreme Court’ denying

certiorari (#82-6395) April 18, 1983.

UNITED STATES COURT OF APPEALS

For the First Circuit

No. 82-1352

EDWARD D. COWHIG,

Plaintiff, Appellant,

JOHN O. MARSH,

SECRETARY OF THE ARMY,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES

DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Andrew A. Caffrey,

U.S. District Judge]

Before

Davis*, Campbell and Breyer

Circuit Judges.

Edward D. Cowhig, pro se

Gregory C. Flynn, Assistant United States

Attorney, with whom William F. Weld, United

States Attorney, was on brief, for appellee.

November 22, 1982

*Of the Federal Circuit, sitting by designation.

DAVIS, Circuit Judge. Appellant Edward D.

Cowhig, Jr. (Father Cowhig), then a Catholic

chaplain with the Regular Ammy, resigned from the

Anmy in January 1962 with an honorable discharge.

In 1981, he brought this civil suit in the

District Court for Massachusetts to direct the

Army Board for the Correction of Military Records

(Correction Board) to determine whether his

discharge from active duty was improper, and

whether he should be reinstated on active duty.

Chief Judge Caffrey (om March 31, 1982) dismissed

the action on the ground that it was barred by

res judicata. This appeal followed.

The procedural history of Father Cowhig’s

claim shows that, while stationed in Okinawa in

1960-61, he had same difficulties with alcohol,

and on November 7, 1961, he tendered his

resignation which was accepted on January 28,

1962. His claim has been that this resignation

was not voluntary but was induced by mistaken

action of ecclesiastical authorities attributable

to erroneous and perhaps fraudulent information

supplied by the Army personnel. Thereafter he

made numerous informal attempts to return to

active duty. In July 1973 he asked the

Correction Board to correct his records to show

that his release from active duty was. not

voluntary but involuntary. This was done in

1974. The next year (1975) he again applied to

the Correction Board, seeking to have his release

nullified and that he be returned to active duty.

In June 1977 this request was denied. Father

Cowhig again (in September 1979) sought relief

fram the Correction Board which denied it in

March 1980 and once more in September 1980.

Plaintiff brought suit in the Court of Claims

which held (in February 1981) that his claim,

having been brought more than eighteen years

after his discharge in 1962, was barred by the

six-year period of limitations applicable to the

Court of Claims (25 U.S.C. 250) because the time

began to run from the date of his 1962

separation. Cowhig v. United States, Ct. Cl. No.

427-80C (reconsideration denied, April 3, 1981).

The present district court suit was then filed on

June 25, 1981.

We hold that, from whatever viewpoint we can

appropriately approach this case, the district

court was right in dismissing the action. On one

view, the six-year limitations statute on

district court suits against the United states

(see 28 U.S.C. 2401, the district court analogue

of 25 U.S.C. 2501, supra) and the decision of

the Court of Claims both apply directly to this

case because it is in effect an attempt to obtain

the monetary relief of back-pay from the United

States--a claim which had already been explicitly

determined to be precluded by limitations. The

district court below so held.

If, however, we accept Father Cowhig’s

belated disavowal of monetary relief (see note

1, supra) and assume that he seeks no more than

the prospective affirmative relief of restoration

to active duty, we reach the same result. It may

be (we do not decide) that 28 U.S.C. ss 2401,

which is not in terms restricted to monetary

claims, likewise bars, in itself, this type of

action asking affirmative relief which would

inevitably lead to the payment of federal money,

if only prospectively.

But even if ss 2401 is not directly

applicable, this action would be precluded by the

doctrine of laches. At the least, the decision

of the Court of Claims shows that plaintiff’s

basic claim first accrued in 1962 when he was

discharged, not when the Correction Board later

acted on his requests. Over eighteen years

elapsed before he sued in the district court.

Pursuit of permissive administrative remedies,

whether before the Correction Board or through

Congressional intervention, did not necessarily

toll the running of either laches or

limitations. Here, plaintiff’s court of

pursuing relief from the other tribunals, before

he sued in the district court, does not show that

his delay in filing suit below was a diligent or

reasonable postponement. He did not’ even

petition the Correction Board until 1973 (eleven

years after his discharge), and his successive

but fruitless petitions thereafter did nothing to

enhance his diligence. Nothing in the Board’s

determinations warranted him in delaying this

suit; the partial relief granted by the first

Board ruling was all that he requested and the

later decisions were wholly adverse. It appears,

rather, that he continued with unsuccessful

petitions to the Board, then jumped from that

tribunal to another, and then still another, all

the while simply seeking a renewed chance to win

his case on the merits.

On the other hand, the Government has

undoubtedly been prejudiced. Memories of the

events of 1960-61 have faded in these 18 plus

years, and same personnel may no longer be

available. See Deering v. United States, 620

F.2d 242, 246, 223 Ct. Cl. 342, 350 (1980). This

is especially important in this case in which

Father Cowhig places mich of his reliance on a

challenge to the authenticity of a letter from a

high-ranking Army officer shortly prior to

plaintiff’s discharge, and also asserts that the

statements in that letter were factually false.

Even were we to view Father Cowhig’s claim

in the most favorable legal light we can

imagine--namely as seeking simple court review of

a recent agency decision not to reopen--these

facts are sufficient to show that the decision

was reasonable and hence lawful.

The short of it is that, on any view we can

properly take, appellant’s suit in the district

court was either barred by a prior judicial

decision or was too late.

Affirmed

No. 82-1352

EDWARD D. COWHIG,

Plaintiff, Appellant,

JOHN O. MARSH, SECRETARY OF THE ARMY,

Defendant, Appellee.

JUDGMENT

Entered: November 22, 1982

This cause came on to be heard on appeal

from the United States District Court for the

District of Massachusetts, and was argued by

counsel.

Upon consideration whereof, It is now here

ordered, adjudged and decreed as follows: The

judgment of the district court is affirmed.

By the Court:

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

82-1352

EDWARD D. COWHIG,

Plaintiff, Appellant,

JOHN O. MARSH, SECRETARY OF THE ARMY

Defendant, Appellee.

Before Coffin, Chief Judge, *Judge Davis

and Campbell, Bownes and Breyer, Circuit Judges.

ORDER OF COURT

Entered: December 17, 1982

Upon consideration of appellant’s **‘Petition

for Rehearing and Rehearing En Banc’’,

It is ordered that said petition be; and the

same hereby is, denied.

By the Court:

Clerk.

*Of the Federal Circuit,

sitting by designation.

PROCEEDINGS

IN THE CASE OF:

COWHIG, EDWARD D.

016-14-7279

DATE: 21 & 26 September 1983

DOCKET NUMBER: AC77-01666G

INDEX NUMBER: 111.01, 134.01

I certify that hereinafter is recorded the

true and camplete record of the proceedings of

the Army Board for Correction of Military Records

in the case of the above-named individual. A

quorum was present during the hearing = and

deliberation. The - following findings,

conclusions and recommendations were adopted by

the Board.

Applicant requests correction of military

records as stated in application to the Board and

restated herein.

The Board convened at the call of the Chairman on

the above date and, following consideration of

the the case and having made its determination

thereof, proceeded to other business.

Present:

Mr. Joseph P. Murphy; Chairman

Mr Adrian U. Dubuisson; Member

Mr. William D. Masters, Jr.; Member

Mr. Philip E. Lavigne; Member

Mr. Jack E. Hobbs; Member

Mr. George Sowa; Executive Secretary (Acting)

Mr. Loren G. Harrell; Examiner

Applicant did appear before the Board. He was

represented by counsel.

The Board considered the following evidence:

Exhibit A Application for correction of

military records.

Exhibit B Military Personnel Records

Exhibit C Case Summary

Exhibit D Transcript of Hearing with

applicant’s exhibits.

The Board finds:

1. That the application was timely filed or the

Board has found it to be in the interest of

justice to excuse failure to timely file; that

the applicant has exhausted all administrative

remedies afforded by existing law or regulations.

2. That it incorporates in these proceedings and

adopts by reference thereto so much of the

Exhibits above, as pertains to the factual

showing of the Department of the Army records

which generally reflect:

a. that the applicant requests, as amended

by counsel during the course of the hearing, his

records be corrected by:

(1) voiding of his discharge from the United

States Ammy on 23 January 1962;

(2) correction of his records, and any other

system(s) of departmental records, to show his

retroactive restoration to active duty in a

commissioned status, effective 23 January 1962;

(3) correction of his records, and any other

system(s) of departmental records, to show that

he has served continuously on active duty in a

cammissioned status since 23 January 1962 or, in

the alternative, that he served on active duty in

a cammissioned status from 23 January 1962 until

2 January 1971, or such other date as may be

deemed necessary and/or appropriate, at which

time applicant was retired by reason of years of

service under the provisions of 10 U.S.C. Section

3911;

(4) voiding and expunging from his records,

of any and all other system(s) of departmental

records, of any and all documentation/information

relating to the resignation submitted by him on 7

November 1961;

(5) voiding and expunging from his records

an officer efficiency report for the period 13

July to 1 October 1961; and

(6) such other and/or further relief as may

be deemed necessary and/or appropriate in order

to accord him full and complete relief;

b. that the applicant states that he was

requesting reconsideration of his petition to

this Board in the interests of justice and

equity; that as he claimed in 1973, he was again

claiming that his resignation from the Regular

Army in 1961 was forced and hence invalid, null

and void and should be so declared; that his

reputation had been damaged and his character

defamed by false reports; that to what extent

that could be redressed and repaired, he was

uncertain; that he was asking only what was

feasible; that his own personal opinion was that

it could be samewhat restored, if he were

permitted to reenter active service, even at his

present age; that he feels that he was ready and

the

willing to resume duty even. with

paratroopers; and that he was aware of

administrative obstacles to that desire, but the

about 240 priest shortage of Catholic Chaplains

in the Army could alleviate that difficulty;

c. that the applicant, who was born on 28

March 1919, was appointed as a first lieutenant,

United States Army Reserve, on 16 November 1950

and ordered to active duty on 2 January 1951;

that he was pramted to the grade of captain,

Army of the United States, on 25 June 1954; that

he was appointed as a captain, Regular Anny,

effective 2 January 1955; that he had an overall

Efficiency Index of 135 as of 1961; that he had

been awarded the Army Commendation Medal, the

Master Parachutist Badge, the Korean Service

Medal, the National Defense Service Medal, and

the United Nations Service Medal; that he had

served overseas in Korea, Germany and Okinawa;

that he was selected for promotion to the grade

of major by the 1961 pramotion selection board;

and that on 23 January 1962, he was _ honorably

discharged, based on his voluntary resignation,

in the grade of captain, with over 11 years

creditable service;

d. that, upon the applicant’s medical

evacuation fram Okinawa, an officer efficiency

report was rendered covering the period 13 July

to 1 October 1961, wherein he received an overall

numerical rating of 144.8 out of a possible 240;

that the rater stated, in fact, under remarks

that the applicant had recently suffered fram a

nervous condition which had prevented him from

reporting for duty at the appointed time; that

the indorsed stated, in fact, that the

applicant’s performance of duty as a chaplain

would be outstanding except for the fact that at

various times he had required treatment caused by

hypertension and nervousness involving

alcoholism; that on three separate occasions

during the past year, he had been admitted to the

hospital suffering from despondency and anxiety

associated with alcoholism, that on at least one

other occasion, his medical officer treated the

applicant in his quarters for the same symptoms;

that since his last efficiency report, the

applicant, after consulting with the Chief of

Neuropsychiatric service, agreed to enter into

the group therapy sessions at the hospital and to

join Alcoholics Anonymous; that according to the

doctor, the applicant half-heartedly accepted the

treatment at the hospital and several times, he

either failed to be present or was late for

scheduled conferences of the group therapy; that

subsequent to these failings, the applicant

lapsed into an extreme period of anxiety and once

again proved his inability to control himself

resulting in his third medical evacuation to the

hospital; that in spite of these periods of

unreliability, the applicant had done extremely

well in attaining his religious objectives with

the troops; that he had been a definite asset to

the cambat team; and that he did have a

deficiency which marred his otherwise fine record

and did tend to negate his fine accomplishments;

e. that on 15 October 1974, the Under

Secretary of the Army approved the Board’s

findings, conclusions and recommendation of 14

August 1974 that the applicant’s military records

be corrected to show that he was involuntarily

released from active duty under the provisions of

Title 10 U.S.C. 3785, on 23 January 1962; and

f. that on 13 April 1977, 26 March 1980 and

10 September 1980, respectively, the Board denied

the applicant’s requests to have his military

records corrected to show that his release from

active duty on 23 January 1962 was null and void.

THE BOARD CONCLUDES

1. That based on the medical evidence of record,

and the sworn testimony, in behalf of the

applicant, by a civilian psychiatrist, the Board

is of the opinion that the applicant was not an

alcoholic, but abused alcohol for self-medication

treatment of an underlying anxiety reaction.

2. That in conjunction with the foregoing the

Board is also of the opinion that, had the

applicant been properly diagnosed, in 1960 or

1961, by a qualified psychiatrist, his condition

could have been treated and he would have

responded to such treatment.

3. That, had the applicant been afforded this

treatment, he would have been fully rehabilitated

and restored to duty.

4. That, upon restoration to duty, it is

reasonable to presume that he would have been

pramoted to the grade of major and continued to

perform his assigned duties in a _ satisfactory

manner until he campleted 20 years of active

service for retirement purposes.

5. That although a conspiracy against the

applicant was not conclusively proved at the

hearings, sufficient evidence was adduced to

create the appearance of such a conspiracy and

that conspiracy ultimately led to the

ill-advised, and literally forced and truly

unvoluntary resignation of the applicant from the

service.

6. That through an unfortunate combination of

circumstances, the actions of his religious

superiors effectively precluded the applicant

from seeking any meaningful source of recourse.

7. That in view of the foregoing findings and

conclusions, the Department’s acceptance of the

applicant’s resignation, without affording him

proper treatment and the opportunity to be

rehabilitated, has deprived him of promotion to

the grade of major and 20-year retirement

benefits, and therefore, is unjust.

THE BOARD RECOMMENDS

1. That all of the Department of the Amy

records of EDWARD D. COWHIG be corrected to show:

a. that his resignation from the service

and honorable discharge on 23 January 1962 are

void and of no force or effect;

b. that he was promoted to the grade of

major, Army of the United States, effective on

the date he would have been pramted as

recommended by the 1961, Major, Army of the

United States, Promotion Selection Board;

c. that he remained on active duty until

such time as he completed 20 years of active

service for retirement purposes; and

d. that, upon completion of 20 years active

service and his written application, he was

retired for length of service in the grade on

major.

2. That so much of the = application for

correction of military records which is in excess

of the foregoing be denied.

DISSENT

A minority, Messrs. Hobbs and Masters, dissent

from so much of the foregoing conclusions and

recommendation, as pertains to the applicant’s

promotion, restoration to active duty and

retirement, and recommend that his application be

denied in its entirety for the following reasons:

a. that in view of the numerous conflicts

between previous testimony and that now given

concerning the applicant’s alcoholism and severe

drinking problem, they are of the opinion that,

due to passage of time, the current testimony

lacks sufficient credibility to support’. the

contention that he was neither an alcoholic nor

had a severe drinking problem which affected his

duty performance;

b. that the applicant was an alcoholic and

had a severe drinking problem at the time of his

resignation from the Army; that this was fully

supported by the applicant’s own sworn testimony

before this Board in 1974 wherein he testified,

in effect, that, while stationed in Okinawa, he

abused alcohol; that it got the best of him and

he got dependent on it; and that he was an

"alky";

c. that the applicant’s abuse of alcohol was

affecting his performance of duty and tarnished

his image as an officer and Army Chaplain; that

this was fully supported by his many

hospitalizations for alcoholism and alcohol

related problems; that medical summaries describe

his treatment for alcoholism, including a

statement that on one occasion he failed to go to

work for four days because of being incapacitated

due to abuse of alcohol; and that his drinking

problem was made a matter of record in an officer

efficiency report and his sworm testimony, in

1974, that he heard through the "grapevine" that

he was an “awful drunk";

d. that the applicant was not a good

candidate for treatment and further

rehabilitation efforts for his alcoholism at the

time of his discharge; that this was based on the

fact that the applicant had been an Alcoholics

Anonymous failure and stopped attending

Alcoholics Anonymous while stationed in Okinawa;

that the applicant testified that he had gone to

Alcoholics anonymous’ meetings, read _ their

literature, talked to their guys, and alcohol was

still a mystery; that nobody forced him to drink;

that he drank by himself; that for him to have

sought psychiatric care would have, at least

subconsciously, been inconsistent with his

position; and that this would, in effect, have

been an admission on his part that the Army was

right and he was wrong;

e. that the applicant did receive proper

medical treatment and psychiatric evaluation

while on active duty; that this was evidenced by

his many hospitalizations for alcoholism and

drinking related problems; and that he failed to

after being discharged from the Anny;

f. that having thoroughly considered the

testimony of the civilian psychiatrist

specifically employed by the applicant for the

limited purpose of testifying before this Board,

the minority rejects same for the following

reasons; first, the passage of time has

significantly changed the testimony of the

applicant as is evidenced by the fact that his

testimony at his latest hearing is contradicted

by the sworn testimony at his former hearing same

10 years ago; that inasmuch as all evidence

indicates that Dr. Roark was employed by the

applicant and recently interviewed the applicant

solely preparatory to his testimony here and not

a part of ongoing analysis or therapy, it is

logical to presume that the applicant would

relate his current story, which is much nore

favorable than that related at his hearing in

1974 or at his release in 1962; that being the

case, it is logical to presume that his medical

Opinion is not based on the facts as they existed

at the time of his discharge; furthermore, there

is no reason to reject the medical evidence of

record, the same evidence that the applicant

agreed with in 1974, which was_ created

concomitant with the activities and direct

observation of the applicant at the tim of

treatment prior to discharge; it is concluded

that this evidence is more probative that that of

the testimony of the applicant’s psychiatrist

which was developed same 20 years after the fact

and based on somewhat questionable facts;

g. that they firmly believe that had the

applicant not tendered his resignation, he would

have been involuntarily separated fram the

service in a very short period of time due to

alcoholism; that this was based on the fact that

the applicant would not have sought psychiatric

help, that he would have continued to abuse

alcohol as evidenced by his numerous episodes of

drinking after discharge, civilian

hospitalizations, and the loss of a church parish

due to his abuse of alcohol; and

h. that notwithstanding the foregoing, the

Military Ordinate of the Catholic Church directed

the applicant to either tender his resignation or

lose his ecclesiastical endorsement; that he

could not function as a military chaplain and

remain on active duty without this endorsement;

and that, accordingly, they are of the opinion

that there is no basis on which to correct his

DEPARTMENT OF THE ARMY

OFFICE, ASSISTANT SECRETARY

WASHINGTON, D.C. 20310

MEMORANDUM

28 Mar 84

MEMORANDUM FOR MR. CLARK

SUBJECT: Cowhig, Edward D., 016-14-7279

PURPOSE: To obtain the signature of the PDASA.

DISCUSSION: The memoranda at the tabs

implements your instructions to me

regarding Father Cowhig’s petition to

the ABCMR.

RECOMMENDATION: Please sign the memoranda at the

tabs and return to me for dispatch.

(signed)

John W. Matthews

Acting Deputy Assistant Secretary

(DA Rev Board Personnel Security)

Attachments

’

29 March 1984

MEMORANDUM FOR EXECUTIVE SECRETARY, ARMY BOARD

FOR CORRECTION OF MILITARY RECORDS

SUBJECT: COWHIG, EDWARD D., 016-14-7279

I have reviewed and considered the report of

proceedings, the case summary, military and

medical records, and the transcript of the

hearing held on 21 and 26 September 1983,

‘ concerning Edward D. Cowhig.

You will recall that it was I who directed

that a second formal hearing be afforded Father

Cowhig so that he could personally appear again

and present whatever new evidence he had to

offer.

Based upon my review of this second hearing,

it is my determination that no error or injustice

exists. While the majority of the Board

concluded that the applicant was not an

alcoholic; that he was not properly diagnosed and

treated by a qualified psychiatrist for an

underlying anxiety reaction; and that, had he

been properly diagnosed and afforded treatment,

he would have been fully rehabilitated and

restored to duty, I am not persuaded that this

was the case. My review of the facts and

circumstances surrounding the applicant’s case

reveals that: (a) by his swom testimony in

1974, he admits to being an alcoholic and

dependent on alcohol while stationed in Okinawa;

(b) he was not a good candidate for

rehabilitation and restoration to duty; (c) he

was properly treated by both qualified medical

doctors and psychiatrists, but continued to drink

excessively; (d) he made little or no attempt to

participate in an alcoholics anonymous program

and he could not accept psychiatric care; and (e)

he continued to abuse alcohol after his discharge

from the service, to a degree which caused him to

lose his church parish and to be hospitalized on

many occasion for alcohol abuse.

Contrary to the majority’s opinion, I find

no conspiracy, on the part of the Army, in the

applicant’s resignation. The applicant ’s

resignation was tendered as a result of the edict

of the military ordinate of the Catholic church,

which stated that he either resign fram the Amny

or lose his ecclesiastical endorsement. That

edict was based solely on his excessive abuse of

alcohol, which was affecting his performance of

duty as an Army chaplain and sullying his

reputation as a chaplain and as a priest.

In support of my determination, I concur

with and adopt the rationale submitted by the

minority. A memorandum for The Adjutant General,

indicating that the application has been denied,

has been signed and is attached.

{signed)

William D. Clark

Principal Deputy Assistant Secretary

(Manpower and Reserve Affairs)

Attachment

DEPARTMENT OF THE ARMY

OFFICE, ASSISTANT SECRETARY

WASHINGTON, D.C. 20310

29 March 1984

SFMR

MEMORANDUM FOR THE ADJUTANT GENERAL

SUBJECT: COWHIG, EDWARD D., 016-14-7279

Having considered the findings, conclusions

and recommendation of the Army Board for

Correction of Military Records, and under the

provisions of 10 U.S.C. 1552, it is directed:

That in the case of EDWARD D. COWHIG, his

application for correction of military records

be, and hereby is, denied.

{signed)

William D. Clark

Principal Deputy Assistant Secretary

(Manpower and Reserve Affairs)

DIST OFF DOCKET YR/NO. FILING DATE J N/S 0

101 1 86/2192 07 24 86 28901

JUDGE NO. COUNTY JURY DEM DOCKET YR/NO.

0122 25025 P 86/2192-y

PLAINTIFFS

EDWARD D. COWHIG

DEFENDANTS

JOHN O. MARSH,

Secy of the Arny

CAUSE

(CITE THE U.S. CIVIL STATUTE UNDER WHICH THE CASE

IS FILED AND WRITE A BRIEF STATEMENT OF CAUSE)

10 U.S.C. 3781-86; 10 U.S.C. 1552; Lack of due

process- U.S. Amny

ATTORNEYS

Edward D. Cowhig, pro se

245 C.J. Cushing Way

Greenbush, MA 02040-0154

(617) 545-4330

AUSA Gelhaar

NR. PROCEEDINGS

Camplaint, filed, S/I, LR10/I, fee paid

Return of summons wso Wm. Weld, Attorney for

US, dtd 7/24/86, filed

Return on Service wso 13 AUG 86, Filed.

Deft mtn to extend time, filed, c/s.

Pltf’s opposition to Deft mtn to extend

time, filed.

Pltf’s mtn for Entry of Default, filed.

Pltf’s mtn for Judgment by Default, filed.

Affidavit in support of #6, filed.

Deft opposition to pltfs mtn for entry of

default and for judgment by default, filed,

c/s.

Deft mtn to dismiss, or, in the alternative,

mtn for S/J, filed, c/s.

YOUNG, DJ: Re: #4, Mtn ALLOWED,cc/cl

Copies of papers served upon US Atty on

9-23-86, filed.

Pltf’s opposition to deft mtn to dismiss, or

in the alternative, mtn for S/J, filed, c/s.

Affidavit of Edward Cowhig, filed, c/s.

YOUNG, DJ: The within mtn (#10) is set for

hearing on Nov 12, 1986 at 2 pm, KH, cc/cl

YOUNG, DJ: MOTION SESSION: Deft’s mtn to

dismiss; or for S/J. Insofar as this axn

depends upon the actions of the Board for

corrections of military records it is not

precluded. Activities that are prior to

that board’s actions are precluded. With

respect to the 1983 decision of Judge

Caffrey, CH.J. the Court takes U/A the issue

of whether this’ case involves a

non-reviewable military decision.

Pltf’s Brief after Oral Argument on mtn to

dismiss, filed, c/s.

Pltf’s Additional Brief after Oral Hearing

on Mtn to Dismiss, filed, c/s

Pltf’s Third Brief on mtn to dismiss, filed,

c/s.

Pltf’s Fourth Brief on mtn to dismiss,

filed, c/s

Pltf’s Fifth Brief on mtn to dismiss, filed,

c/s.

Pltf’s Sixth Brief on mtn to dismiss, filed,

c/s.

Transcript of hearing on 11-12-86, Filed.

YOUSG, DJ: MEMORANXM & ORIER CONCERNING

SETTLEMENT: Ptys directed within 30 days of

the date of this order to inform Court and

each other in writing of willingness to

accept settlement proposed (see order). If

case settles, fine; the Court will proceed

to enter appropriate judgment for neither

pty. If not, Court will act promptly to

dispose of case on the merits, cc/cl

CC of Ltr from Fr. Cowhig to Atty Gelhaar,

dated 10-6-87, filed.

CC of Ltr to Fr. Cowhig from Mr. Gelhaar re

settlement, filed.

Pltf’s RESPONSE to # 24, filed.

CC of Ltr to US Atty fram Pltf dated

10-19-87, filed.

YOUNG, DJ: Re #10, Settlement in this case

having impossible, the Court has

thoroughly reviewed the merits and rules as

follows: 1) this action is barred by the

principles of res judicata. While’ the

present appeal stems from an agency hearing

subsequent to the last appeal to this Court,

the issue is precisely the same as that

earlier presented. 2) In the alternative,

the Court rules that the Dept of the Anny

decisions herein were not arbitrary or

capricious. Accordingly this action mst be

dismissed and judgment mist enter for the

deft ,cc/1

YOUNG,DJ: AGMENT: be am hereby is

entered for the deft,cc/1l

NOTICE OF APPEAL filed.

Pltf’s MOTION for reconsideration,

filed,c/s.

Pltf’s MEMD in support of #29, filed,c/s.

FILING FEE PAID.

100

Pltf’s SECOND BRIEF in support of # 29,

filed, c/s.

Pltf’s MOFION for reconsideration or

amendment of judgment, filed,c/s

Deft’s to mtn for

reconsideration, filed,c/s.

YOUNG, DJ: Re: #29, DENIED,c/cl

Certified copy of docket amd original

pleadings certified this date to Court of

Appeals

Pltf’s MOTION for relief fram

judgment /vacate, filed,c/s.

YOUNG, DJ: Re: #35, DENIED,c/cl

Pleading #35, forwarded to court of appeals

on supp cert.

Second Notice of Appeal, filed. (Filing fee

pd).

Pleading # 4,5,6,7,8,11,23,36, forwarded to

court of appeals on supp cert.

Receipt of transcript request from pltf,

filed.

101

Pltf’s MOFION for relief from judgment or

independent action for relief, filed,c/s.

YOUNG, DJ: Re: #33, Upon consideration of

the merits of this mtn, it is DENIED,cc/cl

YOUNG, DJ: Re: #38, The pltf has appealed to

the Court of Appeals for the First Circuit

from the judgment he attacked by way of this

pleading. That appeal is pending.

Accordingly, this Court is presently w/o

subject matter jurisdiction to act on this

mtn and therefore DENIES it, not on the

merits but on jurisdictional grounds,cc/cl

Pleading # 38, forwarded to court of appeals

con supp cert.

Pltf’s MOTION for

reconsideration/clarification of Court’s

actions on 12-14-87, filed.

YOUNG, DJ: Re: #39, No action can be taken

hereon, the case presently being on

appeal ,cc/cl

Pltf’s MOFICE of appeal, filed,c/s.

102

Pleading # 40 forwarded to court of appeals

on supp cert.

Pleading # 39, forwarded to court of appeals

qn sgp cert.

U.S. COURT OF APPEAL. MANDATE entered:

Judgment of the D.C. is AFFIRMED. filed,

103

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

EDWARD D. COWHIG,

Plaintiff,

Vv. CIVIL ACTION

NO. 86-2192-Y

JOHN O. MARSH, as he is

Secretary of the Anny,

Defendant.

MEMORANDUM AND ORDER CONCERNING SETTLEMENT

YOUNG, D.J. September 28, 1987

After lengthy service as an officer in the

Corps of Chaplains of the United States Amny,

Edward D. Cowhig, a Raman Catholic priest, was,

he believed, involuntarily albeit honorably

discharged from active duty. Since that time

Father Cowhig has pursued, with virtual single

minded devotion his dream of restoration to

active duty as an army officer at his former rank

together with all back pay and allowances. He

104

has diligently engaged in every

military-administrative review available within

the Department of the Army, has _ repeatedly

brought his perceived plight to the attention of

his representatives in Congress, and has_ twice

appealed to this Court. His first appeal having

proved fruitless, he sought and obtained further

administrative review within the Department of

the Army with equally dismal results. It is from

this latest administrative set back that he has

again appealed to this Court.

This is a case that cries out for an

amicable settlement. On the one hand, Father

Cowhig’s dream of restoration to active duty as

an officer in the United States Army is, given

the extremely narrow scope of review available in

his Court, probably just that--a dream. On the

other hand, the military justice system is

occasionally arbitrary and, samewhat' more

infrequently, seriously flawed. A number of its

most celebrated decisions have not stood the

105

judgment of history. Consider, for example, the

following four cases chosen virtually at random.

1842-~Teen-aged Naval apprentice Philip Spencer

(son of the Secretary of War) and two seamen are

convicted at a drum head court martial by their

mentally unbalanced captain, Commander Alexander

Slidell MacKenzie, of conspiring to incite a

mutiny and are promptly hanged fran the yardarm

of the U.S.S. Somers. MacKenzie is subsequently

acquitted at a formal court martial of any

misconduct, E. Potter ed. The United States and

World Sea Power 278 (Prentice Hall Inc. 1955); J.

Sweetman, American Naval History 50 # (Naval

Institute Press 1984); 1861--Brigadier General

Charles P. Stone imprisoned without formal

charges after the disaster at Ball’s Bluff in

which Senator (and Colonel) Edward D, Baker had

been killed. B. Catton, Mr. Lincoln’s Amny 73-80

(Doubleday & Campany Inc. 1951); 1S. Foote, The

Civil War 104-09 (Randam House 1958); 1862--Major

General Fitz John Porter is court-martialed,

106

cashiered, and disgraced as a scapegoat for the

incompetence of Major General John Pope! 3

3 1 Bull Run, B. Catton, Mr. Lincoln’s Armny

at 32-39; 1S. Foote, The Civil War at 758;

1926--Brigadier General William "Billy" Mitchell,

the prophet of American air power,

court-martialed and suspended from his rank for

five years for accusing the Navy and War

Departments of "“incampetence, criminal

negligence, and almost treasonable administration

of the national defense." J. Keegan & A.

Wheatcroft, Who’s Who in Military History 222-23

(William Morrow & Co. Inc. 1976).

As near as one can glean from Father

Cowhig’s pro se pleadings, his major complaint

stems from his perception that his honor,

dedication, and pastoral campetence have been

impugned by the manner in which he was caused to

be separated from his active duty--a step he

believes was’ taken based on wholly

unsubstantiated allegations. For its part, the

107

Army stresses the monetary implications of paying

to Father Cowhig the salary which would have been

due him had he remained on active duty as well as

the impact of the pension benefits which would

now be his had he continued to serve on active

duty. These circumstances lead the Court to

propose the following settlement terms viz: That

the Army up-grade Father Cowhig’s discharge to

the highest grade of honorable discharge fram

active duty, amending all necessary orders and

administrative determinations, such discharge to

be effective as of the date of his original

separation fram active duty. On his part, Father

Cowhig would abandon his claim for restoration to

active duty status, back pay, and allowances. By

way of comparison, this is roughly equivalent to

the vindication "with honor" achieved by Major

General Fitz John Porter (see above) by

Congressional action after a twenty-four year

wait. 1S. Foote, The Civil War at 758.

108

As the parties appear to have sare

difficulty negotiating directly, they are each

directed, within thirty days of the date of this

order, to inform the Court and each other in

writing of their willingness to accept this

settlement proposed, or something like it. If

the case settles, fine; the court will proceed to

enter an appropriate judgment for neither party.

If not, the Court will act promptly to dispose of

the case on the merits.

109

APPENDIX F—DEFENDANT’S MOTION FOR DISMISSA

WITH BAND WRITTEN ORDER DATED OCTOHER 22, 1987

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 86-2192-Y

EDWARD D. COWHIG.

Plaintiff,

JOHN O. MARSH, Secretary to the Anny,

Defendant.

DEFENDANT ’S MOTION TO DISMISS OR, IN THE

ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT

Defendant John O. Marsh, as Secretary of the

United States Army ("defendant"), moves pursuant

to Fed. R. Civ. P. 12(b)(6), that the Court

dismiss plaintiff’s complaint for failure to

state a claim upon which relief can be granted

or, in the alternative, that summary judgment

enter in defendant’s favor. As grounds

therefore, defendant states that plaintiff’s

110

claim is barred by the doctrine of res judicata.

Moreover, even if plaintiff’s claim is not so

barred, it results from a decision of the

defendant which is a nonreviewable military

personnel decision.

111 ’

Young, D.J.:

10/8/86

The within motion is set for hearing on Nov. 12,

1986 at 2:00 PM, by the Court, K. Hart, deputy

clerk

ko * *

October 22, 1987: Settlement in this case having

proved impossible, the court has’ thoroughly

reviewed the merits and rules as follows: (1)

This action is barred by the principles of res

judicata. While the present appeal stems from an

agency hearing subsequent to the last appeal to

this court, the issue is precisely the same as

that earlier presented. (2) In the alternative,

the court rules that the Department of the Anny

decisions herein were not. arbitrary or

capricious. Accordingly, this action must be

dismissed and judgment must enter for the

defendant.

s/ William G. Young

District Judge

112

JUDGMENT ORDER OF THE UNITED STATES DISTRICT

COURT,

DISTRICT OF MASSACHUSETTS

DATED OCTOBER 26, 1987

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 86-2192-y

EDWARD D. COWHIG,

Plaintiff,

JOHN O. MARSH, Secretary of the Amny,

Defendant.

JUDGMENT

YOUNG, D.J. October 26, 1987

In accordance with the Court’s order of

October 22, 1987, it is hereby ORDERED:

Judgment be and hereby is entered for the

Defendant.

s/ William G. Young

UNITED STATES DISTRICT JUDGE

113

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

Edward D. Cowhig, Pro Se

Plaintiff

Vv. Civil Action No. 86-2192Y

John O. Marsh, Secretary of the Amny

Defendant

Plaintiff’s Motion for Relief fram Judgment

and/or To Set Aside Judgment or to Vacate

December 2, 1987

Motion denied

William G. Young

District Judge

114

UNITED STATES DISTRICT COURT

FOR DISTRICT OF MASSACHUSETTS

Edward D. Cowhig, pro se

Plaintiff

Civil Action No. 86-2192Y

JOHN O. MARSH, Secretary of the Army

Defendant

MOTION FOR RECONSIDERATION AND/OR

AMENDMENT OF JUDGMENT

December 17, 1987

Upon consideration of the merits of this motion

it is denied.

William G. Young

District Judge

115

UNITED STATES DISTRICT COURT

FOR DISTRICT OF MASSACHUSETTS

EDWARD D. COWHIG

Plaintiff pro se

Vv. CIVIL ACTION NO. 86-2192Y

JOHN O. MARSH, SECRETARY OF THE

ARMY

Defendant

Motion for Relief From Judgment or

Independent Action For Relief

Under Rule 60(B)(2)(3)(6) I move for relief

fram the order of this Court dated 22 Oct. 1987

and the judgment for the defendant made on 26

Oct. 1987. I petition this court in the

alternative to accept this as an independent

action.

To substantiate my claim for relief I submit

as evidence the transcript of the hearing

conducted by the

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