is 10GTEK TRANSCEIVERS CO., LTD’ s On-Line Mall site to sell HPC Cable: SFP Cables, SFP+ Cables, QSFP Cables, MiniSAS Cables, XFP. Security information Derogatory information concerning loyalty and subversion ( AR –10 chapter 2) will be processed as set forth in that regulation. 4–3. 19(b) (July 29, ) provided that “AR applies” should be stamped on each derogatory discharge under its terms, indicating that the discharged was.
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Lieutenant General Thomas W. Raby, New York City, of counsel, for defendant. Plaintiffs, inductees now serving in the Army at Fort Dix, New Jersey, have sued for a declaratory judgment concerning their discharge rights, and have moved for a preliminary injunction restraining the defendant from taking proceedings against them under regulation AR July 29, The defendant has cross-moved for dismissal under Fed.
The complaint is directed at the conduct by the Army of certain proceedings under ARleading possibly to the termination of plaintiffs’ Army service with discharges other than honorable.
It is alleged that such discharges are threatened solely on the basis of facts and occurrences existing prior to plaintiffs’ inductions, despite their satisfactory and honorable service. And it is further alleged that so much of the regulation as deals with termination of service on the basis of acts prior to induction is invalid.
The motion to dismiss the complaint on the ground that it fails to state a claim upon which relief can be granted, in that plaintiffs have failed to exhaust their administrative remedies, stands in the posture of admitting the well-pleaded material allegations of the complaint. Consequently, for the purposes of the motion to dismiss under Rule 12 b 6the following facts are deemed admitted: It is true that under AR the field board hearings scheduled  are merely first steps in an administrative process which ends with recommendations of the Department of the Army Review Board in Washington, and the plaintiffs have failed to make any attempt to exhaust this administrative process.
United States, U. And it is the claim of the plaintiffs that they have a statutory right to be considered for discharge strictly on the basis of the merits of their military service, without being put in jeopardy of a less than honorable discharge on the basis of anything extraneous to that service. Legislation on the subject of discharge  leaves the matter largely to be dealt with by regulation, and there is no contention that the Secretary of the Army may not establish appropriate procedures.
But it is contended that the procedure under ARin so far as it purports to authorize proceedings based upon conduct antedating induction, is not authorized and is illegal. With this position, on the basis of the assumptions made, I am in agreement. An honorable discharge encompasses a property right, as well as civil rights and personal honor.
United States ex rel.
An honorable discharge is a formal final judgment on the military record of a soldier. It would seem basic, therefore, that a soldier has a right to an honorable discharge if his military record merits it and that he cannot be held to answer, in the 6604-10 of his discharge, for matters extraneous 6604-10 that record.
It is certainly not contended that the Army could try a soldier for a crime alleged to have been committed prior to his entry upon service. Yet to put a soldier in jeopardy of a less than honorable discharge for acts committed prior to induction and for acts which were not criminal is scarcely less offensive to our notions of rudimentary fairness. A procedure which postulates pre-induction civilian conduct as the basis for a less than honorable discharge could not be countenanced and it must be concluded that such a procedure is legislatively unauthorized.
Therefore, on the basis 6041-0 the assumptions involved in a motion to dismiss under Rule 12 b 6that the plaintiffs are being held to answer by the Army for their prior civilian conduct under the procedure of ARleading to the possible consequence of discharges less than honorable, I conclude that there is a clear violation of their rights rendering unnecessary the exhaustion of administrative remedies.
The defendant has also moved to dismiss on the ground of lack of jurisdiction over the subject matter, in that the conduct of a ae board of the Army  insofar as the plaintiffs are concerned is not subject to the control of the defendant in this at.
The defendant is being sued in 640-10 official capacity as Commander of the First Army, with headquarters in this district.
The field boards have apparently been called by order of the plaintiffs’ Commanding Officer, the Commanding General at Fort Dix, New Jersey, not within this district. It is urged that it is the latter officer who should have been made the defendant.
In support of this part of the motion to dismiss, an affidavit has been submitted by counsel, on information and belief, concerning the defendant’s lack of authority. Thus, considering the motion as a “speaking motion” under Rule 12 b 12 Moore’s Federal Practice,2d ed.
AR Military Personnel Security Program :: Military Publications – Army Regulations – USAHEC
The essential averments in the affidavit are not only without 6004-10 knowledge but they are largely conclusory in nature. Finally, it is argued that the failure to join the Secretary of the Army, at whose instance final action would be taken under Agis a 064-10 to join an indispensable party, an incurable defect because the Secretary’s residence is in the District of Columbia. The distinction is urged that an injunction against the defendant would call for an affirmative act which he is powerless to perform.
As already indicated, it is not at this time clear that he lacks the necessary power. It is furthermore not clear at this time that a mandatory act on the part of the defendant would be required, on the ground that a restraint upon the defendant may well operate on his subordinates as his agents.
In any event, this court has the power, in the appropriate circumstances, to issue a mandatory injunction, Trautwein v.
The motion for a preliminary injunction stands in an entirely different posture from the motion to dismiss under Rule 6041-0 b 6. It is familiar and elementary law that “the granting of a preliminary injunction is an exercise of a very far-reaching power, never to be indulged in except in a case clearly demanding it. The termination of plaintiffs’ Army service with less than honorable discharges would so brand and stigmatize them, with consequences too obvious to require specification, as to make irreparable injury undeniable.
It is inconceivable to me that the Army would so terminate a soldier’s service on the sole basis of conduct occurring prior to induction. The exercise of military jurisdiction to inflict painful and injurious consequences, if not “punishment”, upon a service man for prior civilian conduct would be a shocking perversion of the elementary canons of due process.
I do not doubt that plaintiffs genuinely fear the imminence of such injury. But the facts on which the 604-1 is based do not appear in the record by which I am bound to decide. I would not xr, and could not qr I would, for the purposes of preliminary injunction, the existence of facts warranting the court’s intervention.
All that does appear is the fact that field board hearings have been scheduled ag initiate the procedure a the feared result may occur. There are general statements in a memorandum about charges made against the plaintiffs, and there is also a conclusory statement that the plaintiffs are threatened with a discharge, no matter how any field board hearing might go, no better than a “general discharge under honorable circumstances”, on the ground that they refused to complete DD 98 forms “Loyalty Certificates for Personnel in the Armed Forces”.
No testimony was offered, no affidavits were submitted and no proof of any fact was undertaken. Certainly, no showing has been made to afford me a reasonable 604-1 to believe that the Army will, if no injunction is granted, terminate plaintiffs’ service with less than honorable discharges on the basis merely of their lawful civilian conduct.
By the same token, from the facts before me, I cannot reach the conclusion of a likelihood of ultimate success in the action, a conclusion prerequisite to the granting of the injunction. General Railway Signal Co. The kindest view Aar can take of the matter is that plaintiffs’ counsel have labored under a misapprehension about admissions or concessions by the defendant.
If that view has any substance, then the plaintiffs have ra had their day in court on their motion, an eventuality distasteful to the pursuit of justice.
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Rather than deny the motion for a preliminary injunction, therefore, I shall hold it in abeyance for a short time to give the plaintiffs an opportunity to make the necessary showing, if they can. Accordingly, counsel may apply immediately for a further hearing. The cross-motion to dismiss will be denied. Plaintiff inductees wr the United 604-100 Army have previously moved for a preliminary injunction restraining the defendant from taking proceedings against them under regulation ARpending the outcome of their suit for a declaratory judgment concerning their 604-100 rights.
In a memorandum dated November 18,the 60410 held the motion in abeyance pending the making of a showing by plaintiffs which they had not attempted of the imminence of irreparable injury. Specifically, plaintiffs were required to make a showing that the Army would, if no injunction were granted, terminate plaintiffs’ service with less than honorable discharges 60-10 the basis merely of at lawful civilian conduct.
Inasmuch as the charges against the plaintiffs have not yet been decided, or even heard, a showing of irreparable injury can obviously not be predicated upon them, for the charges may conceivably be held groundless.
The showing was, however, predicated upon the claim, which is conceded, that plaintiffs, having failed to complete a “Loyalty Certificate for Personnel of the Armed Forces”, form DD 98,  they cannot qualify for more than a general discharge under honorable conditions, under paragraph 17b 1 b of AR An affidavit was submitted, at the court’s request, purporting to set forth the relative times of the claims of privilege and of inductions.
The purpose to be served by such proof would be to determine the effective time of inferences which could be drawn from the claim of privilege in refusing to complete the form leaving aside entirely the issue of the propriety of drawing any inferences at all.
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If the claim of privilege was previous to or simultaneous with induction, then any logical inferences drawn must certainly be relevant only to civilian conduct. The affidavit submitted, however, was in such form as to be of little or no help in such an analysis.
But the plaintiffs have in any event failed to make the necessary showing of irreparable injury. And the plaintiffs have made no showing whatever, and have attempted 60-10 make none, that such a discharge qualifies as the kind, described in the previous memorandum, ae would brand and stigmatize a recipient so as to cause him irreparable injury. Accordingly, in the absence of a proper showing of irreparable injury by the plaintiffs, the motion for a preliminary injunction will be denied. The possible unavailability of judicial review, however, is not a justification for the failure to exhaust administrative remedies.
Provided, That said regulations shall not be inconsistent with the laws of the United States. Arr can be no doubt of the validity of that argument. The issue, however, to which it is addressed is not the determination of the security status of an individual soldier, nor even his retention in the army, but the infliction of harm by means of a discharge without honor in the case of one who not only does not merit aar a discharge on the basis of his actual service, but who was inducted with knowledge on the part of the Army, actual or constructive, of his civilian background.
Viewing the issue in this light, the defendant for the first time argues, with the citation of substantial authority, that the court is nevertheless without jurisdiction to review a discharge after its issuance or to enjoin the issuance of a discharge. United States District Court S. Supplemental Opinion January 4, Supplemental Opinion 604-100 inductees 064-10 the United States Army have previously moved for a preliminary injunction restraining the defendant from taking proceedings against them under regulation ARpending the outcome of their suit for a declaratory judgment 6044-10 their discharge rights.