The Secretary of the Army issued less than "honorable" discharge
certificates to two soldiers, based on their activities prior to
induction. This action was sustained by the Army Review Board under
38 U.S.C. § 693h. The soldiers sued in a Federal District Court for
judgments declaring that the Secretary had exceeded his authority
and directing him to issue "honorable" discharge certificates to
them.
Held:
1. The District Court had jurisdiction to construe the
applicable statutes to determine whether the Secretary had exceeded
his authority. Pp.
355 U. S.
581-582.
2. The requirement of 10 U.S.C. § 652a that no person be
discharged from military service "without a certificate of
discharge" must be read in harmony with 38 U.S.C. § 693h, which
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 review"; the word "records" means records of
military service; and the Secretary exceeded his authority in
basing these discharges on the soldiers' activities prior to
induction. Pp.
355 U. S.
582-583.
100 U.S.App.D.C. 190, 256, 243 F.2d 613, 834, reversed.
Page 355 U. S. 580
PER CURIAM.
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, 243 F.2d 613; 100 U.S.App.D.C.
256, 243 F.2d 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
Page 355 U. S. 581
separation from the Army, and (b) that the action of respondent
in issuing to them less than "honorable" discharges, and the action
of the District Court and of the Court of Appeals in refusing
review for what they thought was lack of judicial power, deprived
petitioners of due process under the Fifth Amendment, and of a
judicial trial under the Sixth Amendment, of the Constitution;
(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' nonconstitutional 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
Page 355 U. S. 582
of a government official which is in excess of his express or
implied powers.
American School of Magnetic Healing v.
McAnnulty, 187 U. S. 94,
187 U. S. 108;
Philadelphia Co. v. Stimson, 223 U.
S. 605,
223 U. S.
621-622;
Stark v. Wickard, 321 U.
S. 288,
321 U. S. 310.
The District Court had not only jurisdiction to determine its
jurisdiction, but also power to construe the statutes involved to
determine whether the respondent did exceed his powers. If he did
so, his actions would not constitute exercises of his
administrative discretion, and, in such circumstances as those
before us, judicial relief from this illegality would be available.
Moreover, the claims presented in these cases may be entertained by
the District Court because petitioners have alleged judicially
cognizable injuries.
Cf. Joint Anti-Fascist Refugee Committee
v. McGrath, 341 U. S. 123,
341 U. S.
159-160,
and see Army Regulation 615-360, par.
7.
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
Page 355 U. S. 583
review. . . ." We think the word "records," as used in the
statute, means
records of military service, and that the
statute, properly construed, means that the type of discharge to be
issued is to be determined solely by the soldier's military record
in the Army. An authoritative construction of the congressional
grant of power is to be found in the regulations of the Department
of the Army. Army Regulation 615-375, par. 2(b) states:
"The purpose of a discharge certificate is to record the
separation of an individual from the military service and
to
specify the character of service rendered during the period covered
by the discharge."
(Emphasis supplied.) Moreover, the Army's Regulation 615-360,
par. 7 (which was in effect during the times here involved),
further states:
"Because the type of discharge may significantly influence the
individual's civilian rights and eligibility for benefits provided
by law, it is essential that all pertinent factors be considered
so that the type of discharge will reflect accurately the
nature of service rendered. . . ."
(Emphasis supplied.)
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.
* Together with No. 141,
Abramowitz v. Brucker,
Secretary of the Army, argued January 15, 1958.
MR. JUSTICE CLARK, dissenting.
I would affirm these cases on the basis of Judge Prettyman'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.
Page 355 U. S. 584
At the outset, it is well to state what Harmon and Abramowitz,
petitioners in these cases, do
not contend. They do not
contest the decision that their retention in the Army was
inconsistent with national security, nor do they claim that the
procedures adopted violated their legally protected rights. They
concede the Army "an absolute right to discharge," but object to
issuance of discharge certificates that reflect the determinations
underlying the fact of their discharges, insisting that the
Secretary be required to issue them honorable discharges. The
controversy thus is confined to the type of discharge certificate
that may be issued to servicemen discharged because of preinduction
activity deemed to render them undesirable security risks.
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. [
Footnote 1] The lack of any judicial review is evidenced
by the fact that, for over 70 years, Congress itself reviewed
military discharges and frequently enacted private bills directing
the appropriate Secretary to correct the type of discharge
certificate given. By legislation in 1944 and 1946, Congress
authorized creation of administrative boards to which it
transferred the review of military discharges [
Footnote 2] in an effort to conserve its own time.
[
Footnote 3] That legislation
makes no provision for judicial review; on the contrary, the 1944
Act expressly states that the findings of the Army Discharge Review
Board shall be "final subject
Page 355 U. S. 585
only to review by the Secretary of [the Army]," and the 1946
Act, as amended in 1951, [
Footnote
4] expressly provides that the determination of the Board to
Correct Military Records shall be "final and conclusive on all
officers of the Government except when procured by means of fraud."
When this legislative expression of finality is viewed in context
with the uninterrupted history of congressional review, culminated
by Congress' transfer of the review function to administrative
bodies, it cannot be said, in the absence of specific legislative
grant, that Congress intended to permit judicial review. [
Footnote 5] The Court avoids these
considerations by positing jurisdiction to review simply on its
determination that the Secretary's action exceeded his statutory
authority.
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 bypass the
constitutional questions raised by petitioners. It is true that we
avoid decision of constitutional questions
Page 355 U. S. 586
"unless essential to proper disposition of a case." But, as I
see it, this rule should never compel a transparently artificial
construction of a statute. The Court's interpretation here of §
693h must leave both the President and the Congress in a quandary
as to the solution of an important problem involving the security
of our country.
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. [
Footnote 6]
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.
[
Footnote 1]
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.
[
Footnote 2]
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.
[
Footnote 3]
S.Rep. No. 1400, 79th Cong., 2d Sess. 7.
[
Footnote 4]
65 Stat. 655, 5 U.S.C. § 191a.
[
Footnote 5]
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.Appendix, § 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.Appendix, § 463(b).
[
Footnote 6]
See Orloff v. Willoughby, 345 U. S.
83,
345 U. S. 93-94
(1953).