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STAPP v. RESOR

May 12, 1970

Andrew D. STAPP, Plaintiff,
v.
Stanley RESOR, Secretary of the Department of the Army, Defendant


Tenney, District Judge.


The opinion of the court was delivered by: TENNEY

MEMORANDUM

TENNEY, District Judge.

 Plaintiff, by way of motion for summary judgment pursuant to Fed. R. Civ. P. 56, moves for an order declaring his April 19, 1968 undesirable discharge from the Armed Forces null and void, and directing defendant to issue to him an honorable discharge as of the same date.

 There is apparently no dispute that the following are the salient facts. Plaintiff, a citizen of the United States and resident of the City and State of New York, was inducted into the Armed Forces on May 13, 1966. He thereafter served at Fort Jackson, South Carolina, and Fort Sill, Oklahoma. On or about August 16, 1967, while stationed at Fort Sill, he received from the Army a Notice of Action to Determine Suitability for Retention in the Army Establishment. *fn1" Attached to the above notice were two allegations essentially charging plaintiff with: 1) maintaining a "close, continuing, and sympathetic association with the Communist Party," which party has been designated subversive by the Attorney General of the United States; and 2) maintaining a "close, continuing, and sympathetic association with Mary Ann Weisman", who "was an active member of the Socialist Workers Party from 1956 to 1959 and has been an active member of the Workers World Party." The second allegation went on to briefly describe the Workers World Party and its alleged connection with the Socialist Workers Party, an organization also designated as subversive by the Attorney General. *fn2" It should immediately be noted that the second allegation merely charges plaintiff with associating with someone who belongs to an organization not itself designated subversive, but which consists of former members of an organization deemed subversive.

 After receipt of the notice and attached allegations, plaintiff requested a personal appearance before a Field Board of Inquiry to rebut the charges against him. On January 30, 1968, he appeared before the Field Board represented by civilian counsel.

 At the commencement of the Inquiry, plaintiff unsuccessfully moved to dismiss the allegations. *fn3" During the course of the Inquiry, the Army presented several civilian witnesses who testified that when plaintiff had discussed his political views with them he stated that although he was not a member of the Communist Party *fn4" he nevertheless considered himself a communist. *fn5" Further testimony revealed that while plaintiff did not advocate violent or unconstitutional overthrow of this Government, *fn6" he did favor governmental and social changes consistent with his communist views to be brought about by constitutional means. Other witnesses testified that while plaintiff was in the Army he had occasionally been seen with Mary Ann Weisman. *fn7"

 At the Inquiry, the Army introduced Department of Defense Form 98 (Armed Forces Security Questionnaire), which was completed by plaintiff in September of 1966. On this form plaintiff disclosed that he attended meetings, received publications and contributed money to organizations listed on the Attorney General's list of allegedly subversive organizations. *fn8" The Army also introduced into evidence a written statement furnished it by plaintiff in December of 1966 on which plaintiff listed several publications to which he subscribed, the organizations to which he belonged and the financial contributions that he made to various organizations. *fn9" Also received into evidence, over objection by plaintiff, were allegedly classified documents which neither plaintiff nor his counsel were permitted to examine. *fn10"

 When plaintiff testified at the Inquiry, he admitted that he was a Marxist *fn11" but denied support of the Communist Party and insisted that he did not maintain a close association with it. *fn12" Plaintiff further stated that he did not advocate violent overthrow of this Government; on the contrary, he expressed a desire for social and political change brought about by lawful means. *fn13" Finally, plaintiff admitted being a friend of Mary Ann Weisman, having first met her during his service in the Army.

 On April 19, 1968, twenty days short of the expiration of plaintiff's term of service, he received an undesirable discharge from the Armed Forces. It remains uncontradicted by the Government that during Private Stapp's tour of duty he received "good" and "excellent" conduct and efficiency ratings. *fn14"

 After receipt of his undesirable discharge, plaintiff applied to the Army Discharge Review Board for a review of his separation from the Army. *fn15" Proceedings were conducted on July 11, 1969, *fn16" and, on August 5 of the same year, plaintiff received notice from the Department of the Army informing him that his request for a change in discharge was denied. *fn17"

 There can be no doubt that a military discharge on other than honorable grounds is punitive in nature, since it stigmatizes the serviceman's reputation, impedes his ability to gain employment and is in life, if not in law, prima facie evidence against the serviceman's character, patriotism or loyalty. Kauffman v. Secretary of the Air Force, 135 U.S. App. D.C. 1, 415 F.2d 991, 995 (1969); Van Bourg v. Nitze, 128 U.S. App. D.C. 301, 388 F.2d 557, 559 n. 1 (1967).

 It has been equally well established that the claim presented herein may be entertained by this Court since it alleges judicially cognizable injuries for which relief may be granted. That is, this Court has the power to construe Section 1553 of Title 10, United States Code, the statute involved in the instant suit, in order to determine whether or not the defendant has exceeded his powers. Harmon v. Brucker, 355 U.S. 579, 582, 78 S. Ct. 433, 2 L. Ed. 2d 503 (1958).

 Although plaintiff's carefully briefed claims that (1) his undesirable discharge founded upon his political and personal associations violated his constitutional rights of free speech and assembly, and to due process of law, and (2) that the Army's reliance upon classified documents withheld from plaintiff and his counsel violated due process, are most persuasive, the Court must adhere to its "duty to avoid deciding constitutional questions * * * unless essential to proper disposition of a case * * *." Harmon v. Brucker, supra at 581, 78 S. Ct. at 435.

 In Harmon, supra at 583, 78 S. Ct. at 435, the Supreme Court held that "the type of discharge to be issued is to be determined solely by the soldier's military record in the Army". Therein, the Court found it necessary to interpret Section 693(h) of Title 38, United States Code, which, in pertinent part, provided that findings of the Army Review Board "shall be based upon all available records of the [Army] relating to the person requesting such review * * *." In construing ...


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