The opinion of the court was delivered by: Baker, Chief Judge.
I. FACTUAL BACKGROUND AND PRIOR PROCEEDINGS
The plaintiff, Kenneth L. Wronke, was a major in the United
States Army Reserve until May 27, 1982, when he received a
General Discharge for violating Army Regulation (AR) 135-175
Paragraphs 2-12(d) and 2-12(o), because he had misrepresented his
qualifications as a military pilot in endeavoring to obtain a
commercial pilot's license from the Federal Aviation
Administration (FAA) and because his conduct was unbecoming an
After the plaintiff received his commercial pilot's license
from the FAA in October 1977, the FAA became aware that Wronke
was not a "Rated Army Aviator", as he represented in his license
application. His civilian commercial pilot's license, therefore,
was revoked in August 1978 and the plaintiff was not allowed to
apply again for the commercial license for one year. The
revocation was upheld by the National Transportation Safety Board
(NTSB) in November 1978; it determined, however, that the
plaintiff had not acted willfully in his misrepresentations, and
therefore he could apply again for the civilian license without
waiting a year. Wronke did so apply and he subsequently received
a civilian commercial pilot's license.
On December 7, 1979, the plaintiff was notified by the
Commander of the Fifth Army that an Officer Elimination Action
had been initiated against him because of his violations of
Paragraphs 2-12(d) and 2-12(o) of AR 135-175. The Elimination
Board after considering testimony and exhibits, voted unanimously
on January 10, 1981, to recommend Wronke's elimination from the
United States Army Reserve with a General Discharge under
Honorable Conditions. The Board's recommendation was reviewed and
accepted by the Commander of the Fifth Army. In June, 1982, the
plaintiff received a discharge order effective June 14, 1982.
On July 2, 1982, the plaintiff filed a complaint with this
court, No. 82-2218, seeking declaratory and injunctive relief.
Wronke alleged that the Army had violated its own regulations in
convening and carrying out the Elimination Board's hearing;
Wronke also challenged the hearing proceedings on procedural and
substantive due process grounds. In an opinion accompanying the
dismissal without prejudice of the plaintiff's action, the court
found that the plaintiff had not exhausted his intraservice
administrative remedies under 10 U.S.C. § 1552 as he had not
appealed the Elimination Board's decision to the Army Board for
Correction of Military Records (ABCMR). The court further found
that a preliminary injunction was not warranted, as the court was
unable to find irreparable injury or absence of an adequate
remedy at law. See Order of July 29, 1982, No. 82-2218. The Court
of Appeals for the Seventh Circuit affirmed this court's decision
in an unpublished order, No. 82-2248, entered June 1, 1983.
714 F.2d 147.
Pending the appeal to the Seventh Circuit, the plaintiff sought
review from the ABCMR. On April 8, 1983, a memorandum of
consideration and decision of the ABCMR was issued to the
plaintiff, denying the plaintiff's request for correction of his
military records to show that the action taken to discharge him
from his commission in the United States Army Reserve was void
and of no force or effect. On August 11, 1983, the plaintiff
again filed a complaint with this court. On October 2, 1984, the
plaintiff moved for summary judgment; on December 3, 1984, the
defendants' cross-moved for summary judgment in favor of the
defendants, stating that there is no genuine issue as to any
material fact and that the defendants are entitled to a judgment
as a matter of law.
The plaintiff alleges that this court has jurisdiction pursuant
to 28 U.S.C. § 1331 and 1343, in that the controversy arises
under the constitution and laws of the United States. This is an
to 28 U.S.C. § 2201 and 2202 to secure declaratory relief, and to
secure equitable relief pursuant to 5 U.S.C. § 705. The court
finds that it has jurisdiction under these provisions. The court
also notes that the Mandamus Act, 28 U.S.C. § 1361, gives the
district courts "original jurisdiction of any action in the
nature of mandamus to compel an officer or employee of the United
States to perform a duty owed to the plaintiff." Flynn v. Shultz,
748 F.2d 1186, 1189 (7th Cir. 1984). Courts have held that this
statute confers jurisdiction over a suit for declaratory and
injunctive relief from a discharge allegedly made in violation of
Army regulations. Konn v. Laird, 460 F.2d 1318, 1319 (7th Cir.
1972); Jones v. Alexander, 609 F.2d 778, 781 (5th Cir. 1980)
cert. denied 449 U.S. 832, 101 S.Ct. 100, 66 L.Ed.2d 37 (1980);
Woodard v. Marsh, 658 F.2d 989, 992 (5th Cir. 1981). The statute
also confers jurisdiction over allegations that the Army failed
to perform duties imposed by the Constitution. See Konn, 460 F.2d
at 1319 (the failure of the Army to follow its own regulations
constitutes a deprivation of due process, and mandamus is
available to remedy the consequences thereof); see also Woodard,
658 F.2d at 992. This court, therefore, has jurisdiction over
Wronke's claims for declaratory and injunctive relief.
This court also has jurisdiction over Wronke's monetary claims.
The Tucker Act gives district courts original jurisdiction of a
"civil action or claim against the United States, not exceeding
$10,000 in amount, founded either upon the constitution, or any
Act of Congress, or any regulation of an executive department.
. . ." 28 U.S.C. § 1346(a)(2). In an amendment to his complaint,
filed February 13, 1984, Wronke waived all claims for damages in
excess of $9,999.99. Therefore, the court has jurisdiction of his
Having determined that this court possesses jurisdiction to
hear this case, the question becomes whether the court should
review the military decision to terminate the plaintiff's
position in the United States Army Reserve. Decisions of the
ABCMR "denying corrective action" are reviewable by the federal
courts. See Diliberti v. Brown, 583 F.2d 950, 952 (7th Cir.
1978); Ballenger v. Marsh, 708 F.2d 349, 350 (8th Cir. 1983);
Neal v. Secretary of Navy, 639 F.2d 1029, 1036-37 (3rd Cir.
1981); Matlovich v. Secretary of Air Force, 591 F.2d 852, 859
(D.C.Cir. 1978); Hodges v. Callaway, 499 F.2d 417, 423 (5th Cir.
1974); Sanford v. United States, 399 F.2d 693, 694 (9th Cir.
1968). In determining whether to review internal military
decisions, a federal court should first determine whether the
plaintiff has exhausted his intraservice administrative remedies
and has properly alleged that the military has violated the
constitution, a statute, or its own regulations; second, the
court must balance sufficiency of the complaint against the
policies contravening for review. Mindes v. Seaman, 453 F.2d 197,
201-02 (5th Cir. 1971). See Helm v. State of California,
722 F.2d 507, 509-10 (9th Cir. 1983); Rucker v. Secretary of Army,
702 F.2d 966, 969 (11th Cir. 1983); Nieszner v. Mark, 684 F.2d 562,
563-64 (8th Cir. 1982), cert. denied 460 U.S. 1022, 103 S.Ct.
1273, 75 L.Ed.2d 494 (1983); Johnson v. Reed, 609 F.2d 784, 789
(5th Cir. 1980). As the plaintiff has appealed the Elimination
Board's decision to the ABCMR and the appeal was denied, the
plaintiff has exhausted his intraservice administrative remedies
pursuant to 10 U.S.C. § 1552. The plaintiff has also properly
alleged that the Elimination Board and the ABCMR violated his
rights under the Constitution and that they violated their own
In balancing the sufficiency of the complaint against the
policies contravening review, the district court must look to the
following factors: (1) the source and weight of the plaintiff's
challenges; (2) the injury to the plaintiff if relief is denied;
(3) the amount of interference with military matters if relief is
granted; and (4) the degree to which expertise and discretion is
involved. See Mindes, 453 F.2d at 201-02;
Rucker, 702 F.2d at 969; Johnson v. Reed, 609 F.2d at 789.
Wronke's claim is a substantial one. The substance of Wronke's
claims is that the Elimination Board failed to follow the proper
hearing procedures in deciding his case. More specifically Wronke
claims the Elimination Board failed to follow Army regulation
135-175 Para. 2-5(a), which would have required a finding that he
had not in fact violated AR 135-175 Pars. 2-12(d) and 2-12(o).
Review is particularly appropriate where a challenged action is
alleged to have violated a particular service's own regulation.
See Konn v. Laird, 460 F.2d at 1319; Hickey v. Commandant of
Fourth Naval District, 461 F. Supp. 1085, 1091 (E.D.Pa. 1978).
Wronke's claim of violation of due process stems directly from
the question whether he was ...