Military Law - Service Discharge - Judicial Review of Discharge Classifications

Authors

Edward M. Heppenstall, University of Michigan Law School

Abstract

In 1954 petitioners were discharged from the Army in form other than "honorable." Petitioner Harmon had previously been questioned by Army officials regarding alleged Communist affiliations. Since most of the charges against him were based on conduct antedating his induction into the Army and since his military record had been "excellent," petitioner Harmon was informed that he would not be discharged as disloyal or subversive pursuant to Army regulations, but would be retained in his then present grade, assigned nonsensitive duties, and given a discharge at the end of his career appropriate to the character of the service he had rendered. Issuance of Directive 5210.9 shortly thereafter by the Secretary of Defense, which applied to military personnel the criteria of the civilian security program, resulted in review of petitioner Harmon's case and his discharge as undesirable. While the record is not clear, petitioner Abramowitz apparently was discharged as undesirable under similar circumstances. After exhausting administrative remedies, petitioners brought suit seeking a declaration that their discharges were void and an order that the discharges be changed to honorable. Concluding that it lacked jurisdiction to review the action, the district court entered summary judgment in favor of the Secretary of the Army, and the court of appeals affirmed. On certiorari to the United States Supreme Court, held, reversed, one justice dissenting. In a per curiam opinion the Court ruled that the district court had jurisdiction to determine whether the Secretary of the Army had exceeded his statutory authority in basing the discharge classification on conduct antedating induction, and petitioners had standing to bring this action. On the merits, the secretary may consider only a soldier's military record; hence the secretary's action was in excess of his statutory authority and the case should be remanded to the district court for relief to petitioners. Harmon v. Brucker, 355 U.S. 579 (1958).

Recommended Citation

Edward M. Heppenstall, Military Law - Service Discharge - Judicial Review of Discharge Classifications, 57 Mich. L. Rev. 130 (1958).
Available at: https://repository.law.umich.edu/mlr/vol57/iss1/13