The opinion of the court was delivered by: SUGARMAN
Plaintiff Robert E. Schustack commenced an action against 'Lt. General Thomas W. Herren, United States Army, Individually and as Commanding General, First Army, Lt. Col. Donald K. Hughes, United States Army, Individually and as President of the First Army Field Board of Inquiry, Lt. Col. Joe E. Starns, United States Army Reserve, and Lt. Col. Emile Simmons, United States Army Reserve, Individually and as members of the First Army Board of Inquiry', seeking injunctive relief.
Plaintiff was inducted into the Army of the United States on June 29, 1953 under the Universal Military Training and Service Act of 1948.
After two years of active service, he was released to the Army Reserve for fulfillment of the eight year service requirement of the Act.
On July 28, 1955 plaintiff was advised through defendant Lt. General Thomas W. Herren that information was received by the Department of the Army, which furnished reason to believe that plaintiff's retention in the Army Establishment might not be clearly consistent with the national security. In accordance with AR 604-10-31 and 32, plaintiff was advised of his right to and thereupon requested a personal appearance hearing before a 'field board'. The other defendants were appointed by defendant General Herren to the 'Field Board of Inquiry' before which plaintiff was on August 15, 1955 ordered to show cause why he should not be eliminated from the army under Army Regulation SR 600-220-1.
The hearing date was set for September 17, 1955, but on September 1, 1955 plaintiff filed his complaint herein and the instant motion for a preliminary injunction. The hearing was thereupon administratively stayed.
The ultimate relief sought by plaintiff is an injunction permanently restraining the defendants, their agents and representatives from (a) 'making or threatening to make any determination as to the nature and character of Plaintiff's active service in the Army of the United States as of the date of his release from active service to the Inactive Reserve on or about the 28th day of June, 1955, in connection with the proceedings heretofore instituted by Defendants against Plaintiff on or about the 11th and 15th days of August 1955' and (b) 'from taking or threatening to take any and all further action pursuant to Army Regulation No. AR 604-10 in connection with the proceedings heretofore instituted by Defendants against Plaintiff on or about the 11th and 15th days of August, 1955'.
In the instant motion, plaintiff seeks a preliminary injunction restraining that action pending final determination of the case.
Defendants counter with a motion to dismiss the complaint for failure to state a claim upon which relief can be granted, urging that plaintiff has failed to exhaust his administrative remedies; that there is no justiciable controversy and that plaintiff fails to show irreparable damage. Defendants have not yet filed their answer.
The defendants' motion for an order dismissing the complaint herein on the ground that it fails to state a claim upon which relief can be granted should be allowed. A fortiori the plaintiff's motion for an injunction pendente lite must be denied.
It is manifest from the army regulations which control herein,
that the plaintiff's suit is prematurely brought. It must be remembered that the defendants are the army personnel making up the field board of inquiry. That board was convened on the plaintiff's demand pursuant to AR 604-10-32. Subdivision 32.c.(7) of that regulation provides:
'The Board will recommend one of the following: * * * (c) Discharge in the interests of national security and the type of discharge.'.
Subdivision 32.(c)(9) of said regulation provides:
'Upon completion of its inquiry, the Board will forward the complete case through command channels to The Adjutant General. The commander who appointed the Board and the appropriate major commander will include their recommendations in the forwarding endorsement.' (emphasis supplied)
Further, AR 604-10-33, which deals with the Army Review Board, provides:
'a. Upon receipt of a case with recommendations of the field board of inquiry and appropriate field commanders * * * The Adjutant General will refer the case to the Army Review Board for final ...