Harmon v. Brucker
Harmon v. Brucker
Opinion of the Court
The Secretary of the Army, relying upon 10 U. S. C. § 652a (Act of June 4, 1920, § 1, subch. II, 41 Stat. 809, as amended) and 38 U. S. C. § 693h (Act of June 22, 1944, 58 Stat. 286, as amended), and upon Department of Defense and Army Regulations deemed to be authorized by those statutes, discharged petitioners from the Army and issued to each of them a discharge certificate in form other than “honorable.” In so doing, he took into account preinduction activities of petitioners rather than basing his action exclusively upon the record of their military service. After having exhausted available administrative remedies, petitioners separately brought these proceedings in the District Court seeking judgments declaring those determinations and actions of the Secretary to be void as in excess of his powers under the circumstances, and directing him to issue “honorable” discharge certificates to them. Being of the view that it was without jurisdiction to consider the actions, the District Court dismissed them, 137 F. Supp. 475, and the Court of Appeals affirmed, with one judge dissenting, 100 U. S. App. D. C. 190, 256, 243 F. 2d 613, 834. We granted certiorari, 353 U. S. 956 and 354 U. S. 920.
The respective contentions made here may be summarized as follows:
(1) Petitioners contend (a) that the Secretary acted in excess of his powers, because the statutes referred to did not authorize, nor support Department of Defense and Army Regulations when taken to authorize, consideration of petitioners’ preinduction activities in determining the type of discharges to be issued to them upon
(2) Respondent contends (a) that by 10 U. S. C. § 652a, Congress required that, upon separation from the Army, a former soldier be given “a certificate of discharge, ... in the manner prescribed by the Secretary of the Department of the Army . . (b) that, inasmuch as all certificates of discharge are not required to be “honorable” ones, he was authorized to, and did, prescribe various types of discharge certificates running the gamut from the accolade of “Honorable discharge” to the odious “Dishonorable discharge”; (c) that by 38 U. S. C. § 693h, Congress directed the establishment of an Army Review Board with power to review, upon its own motion or that of the former soldier, the type of discharge issued, and “to change, correct, or modify any discharge or dismissal, and to issue a new discharge in accord with the facts presented to the board,” and prescribed that “the findings thereof [shall] be final subject only to review by the Secretary of the Army”; (d) that the findings of the Board, made under those procedures so afforded to and availed of by petitioners, were final subject only to review by the Secretary of the Army; and-(e) that, therefore, such administrative procedure is exclusive and the courts are without jurisdiction to review those findings.
In keeping with our duty to avoid deciding constitutional questions presented unless essential to proper disposition of a case, we look first to petitioners’ non-constitutional claim that respondent acted in excess of powers granted him by Congress. Generally, judicial relief is available to one who has been injured by an act
This brings us to the merits. The Solicitor General conceded that if the District Court had jurisdiction to review respondent’s determinations as to the discharges he issued these petitioners and if petitioners had standing to bring these suits, the action of respondent is not sustainable. On the basis of that concession and our consideration of the law and this record we conclude that the actions of the Secretary of the Army cannot be sustained in law. By § 652a, which provides that no person be discharged from military service “without a certificate of discharge,” Congress granted to the Secretary of the Army authority to issue discharges. By § 693h it provided for review by the Army Review Board of the exercise of such authority. Surely these two provisions must be given an harmonious reading to the end that the basis on which the Secretary’s action is reviewed is coterminous with the basis on which he is allowed to act. Section 693h expressly requires that the findings of the Army Review Board “shall be based upon all available records of the [Army] relating to the person requesting such
The judgments of the Court of Appeals are reversed and the cases are remanded to the District Court for the relief to which petitioners are entitled in the light of this opinion.
Reversed.
Dissenting Opinion
dissenting.
I would affirm these cases on the basis of Judge Pretty-man’s opinion in the Court of Appeals. Harmon v. Brucker, 100 U. S. App. D. C. 190, 243 F. 2d 613. Since this Court does not reach the constitutional claims considered and rejected by Judge Prettyman, however, it is appropriate to add a word about the Court’s basis for asserting jurisdiction and reversing on the merits, namely, the finding that the action of the Secretary of the Army was in excess of his statutory authority.
Throughout our history the function of granting discharge certificates has been entrusted by the Congress to the President and, through him, to the respective Secretaries of the Armed Forces. At no time until today have the courts interfered in the exercise of this military function.
In reaching this exceptional position, the Court construes § 693h of the 1944 Act, supra, which provides that review of discharges shall be based on “all available records” of the department involved, to include not “all available records” of the Army concerning petitioners, but merely those “solely [concerned with] the soldier’s military record in the Army.” (Emphasis added.) This limitation of the clear meaning of the words used by the Congress — so that “all” is deemed to mean “some” — is lacking of any justification.
The construction adopted does enable the Court to by-pass the constitutional questions raised by petitioners. It is true that we avoid decision of constitutional ques
It is to be regretted that the Justice Department and the Army are at loggerheads over the proper disposition of these cases on the merits. However, the frank confession thereof by the Solicitor General is hardly sufficient reason to abandon our long-established policy of no review in such matters. If injustice has been done I have confidence in the Congress or the President to correct it. The proper recourse of petitioners is in that direction.
Judge Prettyman aptly stated: “Surely the President may apply to military personnel the same program and policies as to security and loyalty which he applies to civilian personnel .... [I]f [Harmon] can be discharged as a security risk, the Army can determine whether he is or is not a security risk. And in that determination surely no data is more relevant and material than are his [preinduction] habits, activities and associations.” 100 U. S. App. D. C., at 197, 243 F. 2d, at 620. The same type of data is commonly accepted among civilian agencies as relevant to the security screening of its employees. Those agencies also issue discharges in the form of severance papers based upon, and frequently reciting, security grounds. Such papers reflect the true condition upon which the discharge is made. It seems incongruous to me that the military services should not be able to do as much. I would not require the Secretary to issue a discharge certificate which on its face falsifies the real grounds for its issuance.
See the numerous cases cited by Judge Prettyman in support of this conclusion. 100 U. S. App. D. C., at 195, 243 F. 2d, at 618.
Servicemen's Readjustment Act of 1944, § 301, 58 Stat. 286, 38 U. S. C. § 693h; Legislative Reorganization Act of 1946, §207, 60 Stat. 837, as amended, 65 Stat. 655, 5 U. S. C. § 191a.
S. Rep. No. 1400, 79th Cong., 2d Sess. 7.
65 Stat. 655, 5 U. S. C. § 191a.
Neither the Court nor petitioners claim that the review provisions of the Administrative Procedure Act, 60 Stat. 237, 5 U. S. C. § 1001 et seq., have any application to these cases. Parenthetically, the Selective Service Act of 1948, which authorizes promulgation of regulations covering discharges prior to expiration of the regular service period, 62 Stat. 606, 50 U. S. C. App. §454 (b), specifically states, “All functions performed under this title . . . shall be excluded from the operation of the Administrative Procedure Act . . . .” 62 Stat. 623, 50 U. S. C. App. § 463 (b).
See Orloff v. Willoughby, 345 U. S. 83, 93-94 (1953).
Reference
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