AR 604-10 PDF

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There are 604–10 statements in a memorandum about charges made against the plaintiffs, and there is also a conclusory statement that the plaintiffs are threatened with a discharge, no matter how any field board hearing might go, no better than a “general discharge under honorable circumstances”, on the ground that they refused to complete DD 98 forms “Loyalty Certificates for Personnel in the Armed Forces”.

General Railway Signal Co. The distinction is urged that an injunction against the defendant would call for an affirmative act which he is powerless to perform.

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But it is contended that the procedure under ARin so far as it purports to authorize proceedings based upon conduct antedating induction, is not authorized and is illegal. The essential averments in the affidavit are not only without personal knowledge but they are largely conclusory in nature. The complaint is directed at the conduct by the 604-110 of certain wr under ARleading possibly to the termination of plaintiffs’ Army service with discharges other than honorable.

With this position, on the basis of the assumptions made, I am in agreement. An affidavit was submitted, at the court’s request, purporting to set forth the relative times of the claims of privilege and of inductions.

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Therefore, on the basis of the assumptions involved in a motion to dismiss under Rule 12 b 6that the plaintiffs are being held to answer by the Army for their prior civilian conduct under the procedure of ARleading to the possible consequence of discharges less than honorable, I conclude that there is a clear violation of their rights rendering unnecessary the exhaustion of administrative remedies. And it is the claim of the plaintiffs that they have a statutory right to be considered for discharge strictly on the basis of the merits of their military service, without being put in jeopardy of a less than honorable discharge on the basis of anything extraneous to that service.

As already indicated, it is not at this time clear that he lacks the necessary power. Legislation on the subject of discharge [3] leaves the matter largely to be dealt with by regulation, and wr is no contention that the Secretary of the Army may not establish appropriate procedures. Accordingly, counsel may apply immediately for a further hearing.

There can be no doubt of the validity of that argument. It is certainly not contended that the Army could try a soldier for a crime alleged to have been committed prior to 60-410 entry upon service. It is alleged that such discharges are threatened solely on the basis of facts and occurrences existing prior to plaintiffs’ inductions, despite their satisfactory and honorable service.

The issue, however, to which it is addressed is not the determination of the security status of an individual soldier, sr even his retention in the army, but the infliction of harm by means of a discharge without honor in the case of one who not only does not merit such a discharge on the basis of his actual service, but who was inducted with knowledge on the part of the Army, actual or constructive, of his ae background.

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In any event, this court has the power, in the appropriate circumstances, to issue a mandatory injunction, Trautwein v.

The defendant is being sued in his official capacity as Commander of the First Army, with headquarters in this district. An 604–10 discharge encompasses a property right, as well as civil rights and personal honor. If the claim of privilege was 6044-10 to or simultaneous with induction, then any logical inferences drawn must certainly be relevant only to civilian conduct. Viewing the issue in this light, the defendant for the first time argues, with the citation of substantial authority, that the court is nevertheless without jurisdiction to review a discharge after its issuance or to enjoin the issuance of a discharge.

I do not doubt that plaintiffs genuinely fear the imminence of such injury.

And the plaintiffs have made no showing whatever, and have attempted to make none, that such a discharge qualifies as the kind, described in the previous memorandum, that would brand and stigmatize a recipient so as to cause him irreparable injury. The purpose to be served by such proof would be to determine the effective time of inferences which could be drawn from the claim of privilege in refusing to complete the form leaving aside entirely the issue of the propriety of drawing any inferences at all.

Plaintiffs, inductees now serving in the Army at Fort Dix, New Jersey, have sued for a declaratory judgment concerning their 604-0 rights, and have moved for a preliminary injunction restraining the defendant from taking proceedings against them under regulation AR July 29, Plaintiff inductees in the United States Army 640-10 previously moved for a preliminary injunction restraining the defendant from taking proceedings against them under regulation ARpending the outcome of their suit for a declaratory judgment concerning their discharge rights.

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The kindest view I can take of the matter is that plaintiffs’ counsel have labored under a misapprehension about admissions or concessions by the defendant. United States ex rel. Thus, considering the motion as a “speaking motion” under Rule 12 b 12 Moore’s Federal Practice,2d ed.

The exercise of military jurisdiction to inflict painful and injurious consequences, if not “punishment”, upon a service man for prior civilian conduct would be a shocking perversion of the elementary canons of due process. If that view has any substance, then the plaintiffs have not qr their day in court on their motion, an eventuality distasteful to the pursuit of justice.

Consequently, for the purposes of the motion to dismiss under Rule 12 b 6the aar facts are deemed admitted: I would not assume, and could not if I would, for the purposes of preliminary injunction, the existence of facts warranting 604-100 court’s intervention. The termination of plaintiffs’ Army service with less than honorable discharges would so brand and stigmatize them, with consequences too obvious to require specification, as to make irreparable injury undeniable.

The defendant has cross-moved for dismissal under Fed. It is urged that it is the latter officer who should have been made the defendant. A procedure which postulates pre-induction civilian conduct as the basis for a less than honorable discharge could not ra countenanced and it must be concluded that such a procedure is legislatively unauthorized.

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Provided, That said regulations shall not be inconsistent with the 604-0 of the United States. Yet to put a soldier in jeopardy of a less than honorable discharge for acts committed prior to induction and for acts which were not criminal is scarcely less offensive to our notions 604-110 rudimentary fairness.

In support of this part of the motion to dismiss, an affidavit has been submitted by counsel, on information and belief, concerning the defendant’s lack of authority.

By the same token, from the facts before me, I cannot reach the conclusion of a likelihood of ultimate success in the action, a conclusion prerequisite to the granting of the injunction.

It is familiar and elementary law that “the granting of a preliminary injunction is an exercise of a very far-reaching power, never to be indulged in except in a case clearly demanding it. In a memorandum dated November 18,the court held the motion in abeyance pending the making of a showing by plaintiffs which they had not attempted of the imminence of irreparable injury. No testimony was offered, no affidavits were submitted and no proof of any fact was undertaken.

It would seem basic, therefore, that a soldier has a right to an honorable discharge if his military record merits it and that he cannot be held to answer, in the consideration of his discharge, for matters extraneous to that record. Supplemental Opinion Plaintiff inductees in the United States Army have previously moved for a preliminary injunction restraining the defendant from taking proceedings against them under regulation ARpending the outcome of their suit for a declaratory judgment concerning their discharge rights.

United States, U. The field boards have apparently been called by order of the plaintiffs’ Commanding Officer, the Commanding General at Fort Dix, New Jersey, not within this district. The possible unavailability of judicial review, however, is not a justification for the failure to exhaust administrative remedies. United States District Court S.

And it is further alleged that so much of the regulation as deals with termination of service on the basis of acts prior to induction is invalid. The showing was, however, predicated upon the claim, which is conceded, that plaintiffs, having failed to complete a “Loyalty Certificate for Personnel of the Armed Forces”, form DD 98, [1] they cannot qualify for more than a general discharge under honorable conditions, under paragraph 17b 1 b of AR All that does appear is the fact that field board hearings have been scheduled to initiate the procedure whereby the feared result may occur.

Raby, New York City, of counsel, for defendant. It is furthermore not clear at this time that a mandatory act on the part of the defendant would be required, on the ground that a restraint upon the defendant may well operate on his subordinates as his agents. Certainly, no showing has been made to afford me a reasonable ground to believe that the Army will, if no injunction is granted, terminate plaintiffs’ service with less than honorable discharges on the basis merely of their lawful civilian conduct.