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WRONKE v. MARSH

February 28, 1985

WRONKE, KENNETH L., PLAINTIFF,
v.
MARSH, JOHN O., IN HIS CAPACITY AS SEC. OF ARMY; MCGIFFERT, LT. GENERAL JOHN R., IN HIS CAPACITY AS COMMANDER OF FIFTH ARMY OF USA; PRINTEN, GENERAL KENNETH, IN HIS CAPACITY AS COMMANDER OF 30TH GENERAL HOSP., US ARM RESERVE; BREWER, COL. ROBERT L., USA RESERVE BEACHEM, LT. COL. PAUL J., US ARMY ROSENGARD, LT. COL DENNIS D. AND DELANNOY, LT. COL. CLARENCE W., U.S. ARMY RESERVE, DEFENDANTS.



The opinion of the court was delivered by: Baker, Chief Judge.

ORDER

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 officer.

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 His civilian commercial pilot's license, therefore, was revoked in August 1978 and the plaintiff was not allowed to apply again for the commercial license for one year.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.

II. JURISDICTION

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 action pursuant 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 monetary claims.

III. REVIEWABILITY

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 regulations.

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 ...


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