# Petition for Writ of Certiorari — Cowhig v. Stone

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1993
- **Citation:** 510 U.S. 869

## Text

a

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?

ii

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,

iv
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;

Vv
“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

Vi

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

1x

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

x
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

xi

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

eT

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

53
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

XV
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)

17
17
19
37
20
21
22
23
24
24
26
27

28

29

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,

48
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
53
-
60
59

62

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

64

64
46
43
a3
33
62
63

28

63
48

62

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

403

404

404

407

406

412

31

409

410

xX

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

419

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

a

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."

ie
“ee
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

-,
re
w
fe

4s
z

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

a

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,

nr

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

Fe

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.

Pi
4)
:

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.,

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

;
t]
7

Ss ee he

3
i

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

*
J
oa
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,

i

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

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

90
91-102
95-102

_

as a).

a are hd ee

Pa
Rt,
S
a
¢

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

iv

*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

vi

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.
3

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

10

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?

11

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

12

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

13

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

14

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,

15

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.

16

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?

17

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

18

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

19

extreme but perhaps a good number loved him.
© §@ Dr. Roark, in connection with your
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

20

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

21

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

22

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

23

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."

24

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..."

25

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

s

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

26

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.

27

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

28

(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

29

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

30

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;

31

(C) in excess of statutory jurisdiction,
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.
12

(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

32

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.
13

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

14

33

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}

34

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

Nov 24

Nov 24

Jan 12

1980

1980

1980

1980

1980

1980

1981

35

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

36

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.

37

IN THE UNITED STATES COURT OF CLAIMS
NO. 427-80C

Edward D. Cowhig
Ve

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

38

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

39

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

40

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.

41

ATTORNEYS
Alexander F. X. Matulewicz, esq.
Six Beacon St.
Boston MA 02108

742-6677

AUSA GREG FLYNN

42

CA 81-1616-C

NR.
01
02

03

04

05

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;

06

07

08

43

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.

44

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

45

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

46

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

47

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

48

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

49

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

50

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

51

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.

52

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

CIVIL ACTION

NO. 81-1616-C

53

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.

54

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,
Ve
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

55

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

56

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

57

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.

58

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

59

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

Order of Supreme Court’ denying

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

60

UNITED STATES COURT OF APPEALS

For the First Circuit

No. 82-1352
EDWARD D. COWHIG,
Plaintiff, Appellant,
Ve
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.

61

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.

62

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

63

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 c

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1262%3A1. Public record. Not legal advice.