Harmon v. Brucker – Oral Argument, Part 2: Harmon v. Brucker – January 15, 1958 (80)

Media for Harmon v. Brucker

Audio Transcription for Oral Argument, Part 1: Harmon v. Brucker – January 14, 1958 (80) in Harmon v. Brucker
Audio Transcription for Oral Argument, Part 1: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker
Audio Transcription for Oral Argument, Part 2: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker

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Earl Warren:

— versus Wilber M. Brucker, Individually and as — of the Army.

Mr. Shapiro, you may continue.

David I. Shapiro:

Thank you, Your Honor.

May it please the Court.

Two questions were asked to me yesterday by members of the Court which I think either, one I was unable to answer or two which I don’t feel that I have answered adequately.

And I’d like to address myself first before continuing with my argument to those questions.

The first one was the question of Mr. Justice Black as to whether or not the Uniform Code of Military Justice contained a provision similar to the one with respect to conduct on becoming an officer or a gentleman for enlisted personnel.

There is such an article in the Uniform Code of Military Justice, it’s the general article, Article 134.

So it seems and as a matter of fact, the case is so whole that an individual who commits a crime while he is a soldier and he gets in trouble with the civilian authorities would be subject to the court-martial jurisdiction under Article 134 of the Uniform Code of Military Justice.

Equally true is the situation where the enlisted man writes scandalous letters to his commanding officer’s wife.

That too would come under Article 134 of the Uniform Code of Military Justice.

So we see that in every —

Felix Frankfurter:

Is that because — is that because the commanding officer’s wife that he wrote to some civilian outside, would that make a difference?

David I. Shapiro:

I think it would not make any difference at all, Your Honor.

I think it would have any scandalous conduct which would reflect adversely on the Army would come within the provisions of Article 134.

Felix Frankfurter:

Writing a private letter isn’t a scandalous conduct in the ordinary sense, isn’t it?

David I. Shapiro:

No, sir.

I don’t think that it would be at all.

Felix Frankfurter:

But if you have to — he couldn’t — if he wrote a letter, private letters like that, they can’t do anything about that.

David I. Shapiro:

I don’t think that they could with – under Article 134.

Felix Frankfurter:

I’m not suggesting they couldn’t court — they could court-martial, but they couldn’t take note of the fact he is that kind of a person.

David I. Shapiro:

I agree with you, sir, on that.

Felix Frankfurter:

Well, what do you agree with?

David I. Shapiro:

I agree that I don’t think they could take notice that he was that kind of a person.

Felix Frankfurter:

What is that?

They could not.

David I. Shapiro:

No, sir, I don’t —

Felix Frankfurter:

All right.

David I. Shapiro:

Now, I think from the answer to this question, it now becomes clear that army regulation seeks —

Felix Frankfurter:

You mean they couldn’t discharge him?

Audio Transcription for Oral Argument, Part 1: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker
Audio Transcription for Oral Argument, Part 2: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker

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David I. Shapiro:

No, sir.

They couldn’t discharge him if he wrote such kind of letters.

I mean they could discharge him for any reason that they wanted but the question here is —

Felix Frankfurter:

Well, I’m not reaching the question here.

I just want to know what the — what the powers are not what the question —

David I. Shapiro:

Well, I think the Army can discharge an individual for any reason it sees fit.

Felix Frankfurter:

Just because they don’t like his face.

David I. Shapiro:

Yes, sir.

If they don’t like his face, they can discharge him.

Felix Frankfurter:

But if they discharge him because he wrote a systematically scandalous letter to private people, they could not — they — you said they could discharge him but they couldn’t make public that fact.

David I. Shapiro:

Well, I think — well, I think the answer to that question would be that they could discharge him and they could not make public that fact.

Now, I think we can see then that —

Felix Frankfurter:

They ought to give him an honorable discharge?

David I. Shapiro:

I would think so, Your Honor, yes.

Now, with respect to Army Regulation 615-360, we now see that unless the man has been subject to a general court-martial, unless he has been subject to more than one special court-martial, and if he has ratings of excellent as to character and ratings of excellent as to efficiency, he must receive under 615-360 an honorable discharge with of course the exceptions spelled out in the Army security risk regulation as set up and established by Department of Defense directive 5210.9, which we are challenging here.

The second question which I would like to address myself to is the one asked to me yesterday by Mr. Justice Frankfurter.

And that question was whether or not our position in this case could be analogized to the situation of an individual who had been fired from government civilian employment.

And the question I think was whether or not it was our position that the Secretary of the Army could not make a public statement saying why the individual had been discharged.

I would agree with that position but that’s not this case.

An army discharge certificate is not a notification of personnel action which terminates a federal civilian employee from his job.

An army discharge certificate, that is an honorable discharge certificate, is much more than that.

Not only does it record the fact of the separation of service but it is in the words of this court, a formal final judgment by the Government on the military record of the soldier.

And from that document comes certain very valuable rights, community respect and honor are established by it, and those rights are conclusive, property rights, rights for example to various benefits provided by the state, provided by the Federal Government, flow from that document.

And a certain kind of personal honor, a personal status of community respect and honor are inherent within the document itself.

And I think —

Felix Frankfurter:

When you say inherent you mean that —

David I. Shapiro:

Inherent in the honorable discharge.

Felix Frankfurter:

What you mean is that an honorable discharge carries certain representations to the public, is that it?

David I. Shapiro:

Yes, sir.

With respect —

Audio Transcription for Oral Argument, Part 1: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker
Audio Transcription for Oral Argument, Part 2: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker

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Felix Frankfurter:

Now, what are those representations?

David I. Shapiro:

Those representations are as follows.

That during the time the individual was in the service, he comported himself honorably and he left the service in a status of honor.

Felix Frankfurter:

How about the case you put earlier?

writing a lot of scandalous — obscene letters to people.

David I. Shapiro:

I would say —

Felix Frankfurter:

Do you say that that has nothing to do with his carrying a sword and shooting and polishing his shoes et cetera, is that it?

David I. Shapiro:

That’s correct, Your Honor.

Felix Frankfurter:

I thought it would.

David I. Shapiro:

I would say if that did not come under Article 134, it could not be used to stigmatize his discharge certificate.

Felix Frankfurter:

He may have been found cheating at cards in all powers.

I don’t know whether that would be court-martial attempt, probably not, would it?

David I. Shapiro:

I really don’t know, Your Honor, but I would think not.

Felix Frankfurter:

(Voice Overlap)

but he — suppose it was found he done that all the time, that has nothing to do with the fact that he might be a very brave and rather even if you plea a distinguished soldier in action.

David I. Shapiro:

That’s correct.

Felix Frankfurter:

That would be proper.

Those are not inconsistent as we know about this.

David I. Shapiro:

No, sir.

Felix Frankfurter:

Nonetheless, he would have to be given honorable discharge.

David I. Shapiro:

I would think so, Your Honor, unless he was subject to court-martial jurisdiction under 134.

Now —

Felix Frankfurter:

Now, could — could the Congress of United States take a different view of this?

David I. Shapiro:

I would think that they very well might but they haven’t yet.

As a matter of fact, it has been our position that when Congress reenacted Article 108 of the Articles of War and now it’s set forth in the present statute which is the statute of May 5, 1950, which is the reenactment of Article 108 and they reenacted it without material change.

It is our position that they — that they incorporated all of the rulings of the judge advocate general and the attorney general of the United States within their reenactment.

Felix Frankfurter:

What your position is as I understand it yesterday and today that as a matter of statutorylimitation upon the defense services or the Army, that as a matter of statutory limitation, statutory requirement, there are only two kinds of discharges that they’d be given, one honorable and one dishonorable.

And the dishonorable discharge requires certain conviction or offenses or misconduct in the actual soldiering in its technical, narrow restrictive meaning of that word, is that right?

David I. Shapiro:

No, Your Honor, that’s not correct.

The army has the right, I think, by statute to give a number of various kinds of discharges.

Audio Transcription for Oral Argument, Part 1: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker
Audio Transcription for Oral Argument, Part 2: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker

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Felix Frankfurter:

Such as?

David I. Shapiro:

They can give an honorable discharge, they can give a general discharge under honorable conditions, they can give an undesirable discharge, they can give a bad conduct discharge and they can give a dishonorable discharge.

The dishonorable discharge is by sentence of general court-martial, the others are through administrative regulation which have been established by the Secretary and have been within his power since the time the Articles of War were first enacted.

Now, this is the point I’m trying to get at and I think that this is really the key issue with regard to the statutory construction.

It’s just this.

The Army, in issuing the kinds of discharges that they issue have to take into account and be limited by those things which are relevant to the discharge itself.

For example, a discharge certificate is not a certification by the Army, that a man was for example or was not a bank robber, before he was inducted, and it’s not a certification either that he may not become a bank robber after he’s released from the military service and goes into civilian life.

Felix Frankfurter:

But you’re not restricting your argument as you indicated yesterday to pre-service disqualification because you said in your case there is an element of conduct under scrutiny during —

David I. Shapiro:

That’s correct.

Felix Frankfurter:

— during service.

David I. Shapiro:

That’s correct.

Felix Frankfurter:

But you’re now drawing a line between activities and conduct, call it what you will, what you regard as unrelated to soldiery.

David I. Shapiro:

Yes Your Honor.

Felix Frankfurter:

And you say the mere quality of his character is unrelated to soldiers.

David I. Shapiro:

No, I say that the quality of his character is very much related to his soldiering because the Army provides a system whereby his character can be rated.

And as a matter of fact, in this particular case, wherever there were ratings as to this man’s character, he was rated as excellent.

Felix Frankfurter:

But it can’t show on the — on the discharge.

David I. Shapiro:

Well —

Felix Frankfurter:

In this case, we’re dealing with a discharge that is general discharge with — what is (Voice Overlap) —

David I. Shapiro:

Under honorable — general under honorable conditions discharge.

Felix Frankfurter:

And — and your objection to that is that it’s not explicitly stated an honorable discharge.

David I. Shapiro:

It is not an honorable discharge.

That is correct, Your Honor.

Felix Frankfurter:

And it was given in this form because the Army thought that that which took place while he was in the service or on his conduct as a soldier or his qualification as a solider or the kind of authentication the Government wanted to make which barred them, which led them to prefer general discharge under honorable conditions rather than honorable discharge.

David I. Shapiro:

I’m afraid I can’t speak for my adversary, sir, but I —

Felix Frankfurter:

I’m talking about you.

David I. Shapiro:

I don’t think that’s the Army’s position.

I think really that they found that the letters were really de minimis.

I think they were actually concerned with the conduct which predated his —

Felix Frankfurter:

Well, I know but —

Audio Transcription for Oral Argument, Part 1: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker
Audio Transcription for Oral Argument, Part 2: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker

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David I. Shapiro:

— induction.

But that so far as we’re concerned is not the issue.

Hugo L. Black:

Why — why is that not a part of the issue?

David I. Shapiro:

We think that because of the two letters which he wrote, the Army could consider this as part of an overall question of conduct.

Hugo L. Black:

How do we know that’s the only reason they did it?

David I. Shapiro:

Well, I wouldn’t say that that was, and I couldn’t speak of course for the Army.

Hugo L. Black:

Suppose they did it for that reason, and they did it for other reasons, I assume other reasons that were improper for them to consider.

What is the situation?

David I. Shapiro:

Well, I — I would think that it would depend upon whether or not the conduct which occurred subsequent to induction was de minimis or not and I think that would be a question for this Court to decide on the basis of the record.

Hugo L. Black:

How could you decide it line of this general position in connection with agencies and are with verdicts of the conviction.

And if there are several reasons given, some are bad, it might not — consequence might not have resulted and had been limited to the good reasons.

David I. Shapiro:

Well, I think really, Your Honor, we’re not limited to that question here for this additional reason.

Hugo L. Black:

I — I want to talk about being limited.

I was wondering why both questions are not present in your case, maybe they are none.

So, I was wondering why both questions are not present.

Number one, whether it’s legal to consider a man’s past character as, I understood you to say was done here, investigated, rely on that.

Secondly, whether it’s legal to consider what happened after he was in the Army.

Now, assuming that one should reach the conclusion that the discharge was justifiable on one of the two causes, how could we know that it would have occurred had they not relied on both?

David I. Shapiro:

Well, with respect to the question of findings, Your Honor, I think perhaps it might have to be sent back for a determination as to what the Army relied on.

But I really feel and it’s our position in this case that the two letters that this man did write after he was inducted had nothing whatever to do with the actual character of the service he rendered.

Hugo L. Black:

I understand that’s your argument with reference to it as to why it was wrong to rely on it.

David I. Shapiro:

Yes, sir.

Hugo L. Black:

But do you concede it was right to rely on the other part as to what happened before he got into —

David I. Shapiro:

No, sir.

We do not concede that all.

We say that with respect to pre-induction conduct, number one, and with conduct antedating induction, having nothing whatever to do with the character of the service, none of these factors can be considered with respect to the kind of discharged issue.

Now, let me go into the jurisdictional question for a moment, the question of this Court’s power to review.

Felix Frankfurter:

To review what?

David I. Shapiro:

To review the issuance, the action of the Army in issuing this man the kind of discharge he was issued on the basic facts of this case as they stand admitted before the Court.

We think that under this Court’s holding in Perkins against Elg, even if the District Court had no power to compel the Army to issue the petitioner here an honorable discharge certificate, certainly, we think it had the power to declare invalid or unconstitutional the kind of discharge he did get if the reasons for the action were invalid or unconstitutional.

Audio Transcription for Oral Argument, Part 1: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker
Audio Transcription for Oral Argument, Part 2: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker

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David I. Shapiro:

Nevertheless, the respondent argues that the legislative history of the statutes providing for the Board — the Army Discharge Review Board and the Army Board for the Correction of Military Records, demonstrate a congressional intent to preclude judicial review of this kind of case.

We disagree.

We think that the legislative history of the term “final” as used both in Section 301 of the Servicemen’s Readjustment Act of 1944 and in 207 of the Legislative Reorganization Act, indicate that Congress did not preclude judicial review of arbitrary or capricious administrative action by the military.

Of course, if Congress had said that the administrative determination not only should be final and conclusive but that no court of the United States should have jurisdiction to review such determination, of course, the army’s position would be much stronger.

But here, so far as Section 207 is concerned, such words were specifically deleted from the statute by committee amendment.

Now —

Felix Frankfurter:

In this — this statute and even the bill.

David I. Shapiro:

From the bill, that’s right, Your Honor.

Now, the second half of the Army’s attempt to sidestep what we consider the basic issue here, is the contention that Harmon has not suffered injury to a legally protected right.

The Army says that since the general under honorable conditions discharge entitles Harmon to virtually all federal veterans’ benefits.

He hasn’t suffered the kind of injury which would give him the standing to raise the issues he seeks to raise in this case.

Now, while it’s true that the general discharge will not automatically deprive Harmon of federal veterans’ benefits, he will be deprived of a number of veterans’ benefits provided by the laws of the State of New York.

The New York statutes make marked distinction between an honorable discharge and a discharge under honorable conditions and I call the Court’s attention specifically to the Education Law of the State of New York and the distinction between Section 609 of the Education Law and Section 608 as it’s discussed in our brief.

Hugo L. Black:

Where is discussed in your brief?

David I. Shapiro:

It’s set forth, Your Honor, at page 33 of our brief.

But we think more important than the loss of these state veterans’ benefits is the stigma which attaches to anything —

Felix Frankfurter:

Before — before you move on to that.

David I. Shapiro:

Yes, Your Honor.

Felix Frankfurter:

I understood you to say that the New York Education Law makes a distinction between an honorable discharge and a general discharge under honorable conditions.

David I. Shapiro:

No, just a discharge under honorable conditions, they don’t use the word general in the statute.

Felix Frankfurter:

To make it — what is the distinction between?

David I. Shapiro:

The distinction between the two is —

Felix Frankfurter:

No, what is the distinction that the New York Education Law makes?

David I. Shapiro:

Well, I think Section 608 has to do with soldiers who have been — educational benefits for soldiers who have been discharged under honorable conditions.

And Section 609 has to do with scholarships for the children of veterans who have been honorably discharged.

The types of discharge, a discharge under honorable conditions and an honorable discharge are very, very much different.

The –the army regulations themselves indicate that the general discharge is basically a substandard discharge for those who do not meet the qualifications of an honorable discharge.

Felix Frankfurter:

Is this discharge under honorable conditions?

When does that get into the — in the former military law?

David I. Shapiro:

I think that’s been in, Your Honor, since some time after the First World War, but I don’t think that I’m quite sure on that.

Audio Transcription for Oral Argument, Part 1: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker
Audio Transcription for Oral Argument, Part 2: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker

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Felix Frankfurter:

So that the — what is it, regulations or — or —

David I. Shapiro:

It’s established by army regulation.

Felix Frankfurter:

And the New York Education Law responds to that record

David I. Shapiro:

No.

Felix Frankfurter:

It’s on that distinction?

David I. Shapiro:

I don’t think that they make that kind of distinction but I think that they’ve inherently made that distinction in the statute so that if the statute would be applied to Harmon’s children, he would not be entitled to an educational scholarship for those children under Section 609.

Felix Frankfurter:

What I want to know is — the New York statute take cognizance of this distinction made in the army regulations.

David I. Shapiro:

I think it would, Your Honor, there have been no rulings on it, but I do think they would.

Judge Frank indicated they would in the case of Schustack against Herren which was in the Second Circuit, and he thought they would.

And I think the statute shows a marked distinction between an honorable conditions discharge and an honorable discharge.

As a matter of fact, there is an Air Force regulation, Air Force Regulation 39-10 Section 3, which provides that a general discharge may be a disadvantage to an airman seeking civilian employment.

And we say that much more important than the state veterans benefits, is this stigma which attaches to anything other than an honorable discharge and much more important in Mr. Harmon’s case is the fact that as a law student and perspective candidate for admission to the bar, he may find by reason of the general and honorable conditions discharge, a great deal of difficulty with the Committee on Character and Fitness for the first judicial department of that State.

Judge Bazelon in his dissent below, we think, put it very, very succinctly when he said, “But whatever may be said of the technical legal equivalence or difference between the two types of discharge from a real life point of view, they are vastly different.

The portion of our population holding honorable discharge certificates from the armed services is now so great that an adverse reflection is inherent in a certificate which is other than honorable.”

This is of course confirmed by the statement of appellee’s counsel in oral argument, that every soldier gets an honorable discharge unless there is some blemish on his record on account of which he receives the discharge other than honorable.

Now —

Felix Frankfurter:

How — how does one reach that conclusion?

I mean speaking for myself if I hadn’t read that and read all this, it never would have occurred to me that the fellow has a piece of paper that he’s discharged under honorable conditions, that honorable doesn’t mean the same thing as an honorable discharge.

I know that isn’t so but how do — how can one be so sure that inherently there is a difference?

David I. Shapiro:

I think —

Felix Frankfurter:

Do honorable, do the words honorable mean different things, as — as they’re differently used?

David I. Shapiro:

Because the term is general, Your Honor.

It’s an administrative discharge which — I mean the normal type of discharge is an honorable discharge.

It says in big letters on it, “Honorable Discharge.”

Those are the standard words which are used on the discharge certificate.

Anything other than that immediately catches the attention.

Felix Frankfurter:

Well, I just wonder if that —

David I. Shapiro:

Now —

Felix Frankfurter:

I take notice of that as a psychological fact so I myself — it never would have occurred as to my stupid mind.

David I. Shapiro:

Now, if —

Audio Transcription for Oral Argument, Part 1: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker
Audio Transcription for Oral Argument, Part 2: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker

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There is nothing on the face of the certificate that indicates that he was discharged for security reasons.

David I. Shapiro:

Yes Your Honor and that’s exactly the point I’m coming to now.

Now, it’s true that the term “Army Regulations 604-10”, that’s the army security risk regulation, does not apply on Harmon’s discharge certificate or on his official report of separation.

However, both the Department of Defense Director and AR 604-10 itself require that the discharge certificate be so marked.

Now, since clerical mistakes —

Charles E. Whittaker:

Is this not on this one?

David I. Shapiro:

Not on this one, Your Honor.

But —

Charles E. Whittaker:

(Inaudible) to it at all.

David I. Shapiro:

No, sir.

But since clerical mistakes or omissions can always be corrected on the separation certificate even after its issue, we cannot presume unless of course this Court reverses the court below that the army will fail to correct this omission or mistake from its own — in accordance with its own regulation, and of course the Director from the Department of Defense.

Felix Frankfurter:

But isn’t the separation certificate a different thing from discharge certificate?

David I. Shapiro:

No, Your Honor, it’s sometimes used in lieu.

Felix Frankfurter:

Doesn’t every soldier get a summary, a brief of his war — of his military record?

David I. Shapiro:

That’s right.

It’s —

Felix Frankfurter:

And that’s a very different thing from the discharge certificate.

David I. Shapiro:

Actually, no, Your Honor, it is not.

Felix Frankfurter:

(Voice Overlap) —

David I. Shapiro:

They — they are interchangeable in this sense.

Felix Frankfurter:

It’s surprising.

David I. Shapiro:

The official report of separation from the Armed Forces of the United States is today given for those who are released from active military duty and placed in the inactive reserve.

They actually do not get an honorable discharge certificate until they have completed their required eight years of two years active service, six years inactive service.

So that for — in the large part of those people who are inducted under the Universal Military Training and Service Act, they get when they are released to the inactive reserve what is know as an official report of separation, the DD Form 214, which in most cases serves in lieu of the honorable discharge.

Now here, this man was discharged before his 24 months of active military duty.

So he did get a discharge certificate as well as an official report of separation.

Felix Frankfurter:

Did you say he gets — you get this 214 in lieu of a discharge?

David I. Shapiro:

Yes, Your Honor because —

Felix Frankfurter:

And are you saying in that separation, in that 214, the Army can’t put down why he was separated.

We haven’t got that question before us at all.

Audio Transcription for Oral Argument, Part 1: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker
Audio Transcription for Oral Argument, Part 2: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker

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Felix Frankfurter:

But I’d suppose, unless you correct me — unless I’m corrected that that’s a very different thing from the piece of paper called a discharge.

And that gives a summary history of his — of his military record and that is — may be called for if he seeks to re-enlist, isn’t that right?

David I. Shapiro:

That’s correct, Your Honor.

And that’s exactly —

Felix Frankfurter:

Well, that’s not this.

That’s not here before us.

David I. Shapiro:

Oh, yes.

It is, Your Honor.

If I may — if I may be — presumed to say that.

Felix Frankfurter:

Well, if it — but have we got that certificate (Voice Overlap) —

David I. Shapiro:

Yes, sir.

It’s set forth at 111 and 112 of the printed record.

Felix Frankfurter:

And are you also challenging the right of the Army to do that?

David I. Shapiro:

Yes we are, Your Honor.

Felix Frankfurter:

Well, I — I don’t understand that.

David I. Shapiro:

We say that that has — that statement on the record has nothing whatever to do with a man’s service, because in box one, the first box you come to on the official report of separation, is the box which says “Character of separation.”

And it seems to us that if a man was an excellent soldier, the character of separation has got to be nothing less than honorable.

Felix Frankfurter:

But this DD 214 isn’t what the word at large seems, does it?

David I. Shapiro:

It may very well, Your Honor, it’s used in lieu of the actual discharge certificate.

It’s the thing for example which the veterans administration uses to base its benefits on.

Felix Frankfurter:

I’m not saying it isn’t used.

All I’m saying is I am greatly surprised.

I hadn’t realized if it’s to hear what the Government says that we are dealing here with the rightness of the Government to reissue 214.

David I. Shapiro:

As well as the certificate itself.

Felix Frankfurter:

All right.

David I. Shapiro:

Now, it seems to us that with the general discharge being subject to an identification of the type —

William J. Brennan, Jr.:

May I ask something as to this?

Isn’t this one document, face side is the discharge and the reverse side is the 214?

David I. Shapiro:

No, Your Honor.

That’s the way —

Audio Transcription for Oral Argument, Part 1: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker
Audio Transcription for Oral Argument, Part 2: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker

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William J. Brennan, Jr.:

Two separate documents?

David I. Shapiro:

— they have been printed, they are two separate documents.

William J. Brennan, Jr.:

Has that always been so or is that different?

David I. Shapiro:

To my knowledge it’s always been so.

William J. Brennan, Jr.:

So, that so also stops?

David I. Shapiro:

I would think so, but I think they get a different kind of a discharge certificate —

William J. Brennan, Jr.:

Well, I know one is (Voice Overlap) —

David I. Shapiro:

Now —

William J. Brennan, Jr.:

Put in mind, the face was discharge and the reverse was just 214.

David I. Shapiro:

Well, that may very well have been but I know that for enlisted men, that they do issue two separate documents.

I have got two separate ones.

[Laughter]

Felix Frankfurter:

Then — but you are denying that that’s the routine that they are used — that there are normally two documents.

David I. Shapiro:

No, there are normally two documents.

Felix Frankfurter:

Well, yes.

And are you saying that there can be no record made anywhere of the basis for his discharge?

David I. Shapiro:

I think that the basis for the discharge is the man’s military record.

Felix Frankfurter:

Well, I understand but if he is severed because for a reason, they cannot put on record why he was severed, is that right?

If they hadn’t —

David I. Shapiro:

That’s correct.

Not on his discharge certificate or on his official report of separation.

Felix Frankfurter:

How about some document in the war department?

David I. Shapiro:

They can do whatever they want with that because as far as we are concerned, that’s never shown to the public.

That’s not the certification that the man has.

It’s not the document which gives him rights to various benefits and to what we term community respect and all.

I see that my time is up.

Earl Warren:

Yes, Mr. Shapiro.

Mr. MacGuineas.

Donald B. Macguines:

May it please the Court.

If I may ask the Court to turn again to page 112 of the record, which is the photostatic copy of the actual discharge certificate received by the petitioner.

Audio Transcription for Oral Argument, Part 1: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker
Audio Transcription for Oral Argument, Part 2: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker

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Donald B. Macguines:

This is the document which is stated to impose such horrendous consequences upon petitioner that it violates his constitutional rights.

Felix Frankfurter:

No, not his constitutional rights to the person — as I understood Mr. Shapiro’s argument is that the terms under which an honorable discharge must be given and defined by a statute and that he comes within the terms of the statute.

Donald B. Macguines:

Well, as I understand it —

Felix Frankfurter:

So we may reach — so he may not reach the consequences.

Donald B. Macguines:

Yes, but that is an alternative contention which he makes, I believe.

Now, the only difference in form —

Felix Frankfurter:

You don’t start with the constitutional proposition.

Donald B. Macguines:

Oh, I certainly do not intend to, Your Honor.

Felix Frankfurter:

All right.

Donald B. Macguines:

The only difference in form and content between this general discharge certificate which petitioner holds and the honorable discharge certificate which he asked this court to compel the Secretary of the Army issue to him is the heading, first, instead of the large type general discharge would be the words “honorable discharge.”

And then there is an additional statement in the honorable discharge certificate that it is awarded as a testimonial of honest and faithful service.

Now, that testimonial is omitted from the general discharge certificate and that is the only distinction in the two types of certificates upon which petitioner bases his whole case.

Now, to clarify the statements of petitioner’s counsel with respect to the report of separation form, the DD 214, the original of that form is the official army record maintained in the War Department, the official record of the soldier’s service.

It is a copy of that record which is given to the soldier as well as the formal discharge certificate.

They are separate pieces, separate documents (Voice Overlap) —

Donald B. Macguines:

As I understand it, they are separate documents.

Hugo L. Black:

So why is this — I don’t quite understand it.

On page 111 is — purports to be one side of the document, on page 112 the other side, is that wrong?

Donald B. Macguines:

No, they’re — they’re merely printed.

That’s merely the way the printer chose to print it in the record.

Hugo L. Black:

They are two separate pages?

Donald B. Macguines:

Completely separate documents.

Earl Warren:

Mr. MacGuineasm, you minimize the difference between this discharge and an honorable discharge and I think it strange that Mr. Shapiro would — would urge that there is a great difference.

What is the difference and — and why do you have the two — two forms of discharge if you please?

Donald B. Macguines:

The difference is, both are given under honorable conditions, they represent that the solider has served under honorable conditions.

But the honorable discharge certificate is —

Earl Warren:

Now, wait a minute.

Do they — they served under honorable condition, is it —

Donald B. Macguines:

Yes.

Earl Warren:

— is it — do both of them mean that he served honorably?

Audio Transcription for Oral Argument, Part 1: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker
Audio Transcription for Oral Argument, Part 2: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker

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Donald B. Macguines:

Well, the — the official phrase in the army regulations is served under honorable conditions and that I take it means honorably whether the discharge is the honorable discharge or the general under honorable conditions.

Earl Warren:

In other words, both of them say that he served honorably while in the armed forces?

Donald B. Macguines:

They say he served under honorable conditions.

Earl Warren:

Well, I know.

Donald B. Macguines:

— that’s the exact language of the certificate.

Earl Warren:

But you were — you were trying to minimize the difference between these two discharges.

What I want to know is, does the general discharge import that he served honorably in the Army?

Donald B. Macguines:

Yes, surely.

Earl Warren:

All right.

Donald B. Macguines:

Precisely.

Earl Warren:

That’s all I want to know.

Donald B. Macguines:

I’m sorry.

Felix Frankfurter:

What is the distinction then?

Donald B. Macguines:

The distinction is —

Felix Frankfurter:

You are not there to contend or do you contend they mean the same thing?

And if they mean the same thing, then why not use the same phrase?

And if they don’t mean the same thing, what is the difference?

Donald B. Macguines:

They — legally, they mean the same thing as I hope to develop at length in the argument.

The honorable discharge is an accolade, if I may say so, a highest type of letter of recommendation.

The general discharge, while it says the man has served under honorable conditions, does not get in that extra accolade and that’s the only non-legal distinction between the two.

Hugo L. Black:

I’ll have — how old is the second type (Voice Overlap) —

Donald B. Macguines:

The — the general discharge under honorable conditions as such was introduced into the army regulations in 1921.

The history of that is set forth in a footnote in our brief.

It’s in —

Hugo L. Black:

How — how old is the other?

Donald B. Macguines:

The honorable discharge?

Hugo L. Black:

Yes.

Donald B. Macguines:

Well, I think that goes back to the beginning of our military organization.

Earl Warren:

What percentages of — of discharge servicemen get the accolade?

Donald B. Macguines:

Well, we had in a footnote in our brief a compilation of the number of discharges given over the last several years by the Army and the Air Force.

Audio Transcription for Oral Argument, Part 1: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker
Audio Transcription for Oral Argument, Part 2: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker

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Donald B. Macguines:

Discharges other than the honorable discharge.

And as the court can see that runs up to from 20, 25, 30, up to 40,000 per year.

Hugo L. Black:

What page is that in your —

Donald B. Macguines:

That’s page 38 of our main brief, Your Honor.

The table there — for instance, the — the highest number shown is for the year 1954 when some 39,000 were given.

Hugo L. Black:

And is this general discharge rated in the classification number awarded less than the honorable discharge?

Donald B. Macguines:

Yes, now of course, it must be understood that that doesn’t mean that it’s not a discharge under honorable condition as we’ve —

Hugo L. Black:

I understand that.

Donald B. Macguines:

We merely have to —

Hugo L. Black:

It’s properly classified there as being a discharge lest anomalous.

Donald B. Macguines:

Well, I think it might have been more artistic if it had said, number awarded a discharge other than the honorable discharge.

Felix Frankfurter:

Now, who — who put this classification?

Donald B. Macguines:

Well, that’s the — I think we did.

Hugo L. Black:

Is that in the army reports when they —

Donald B. Macguines:

I’m sorry.

Hugo L. Black:

Is that in the army reports?

Donald B. Macguines:

No, no.

This is a — this is purely a tabulation which we prepared from army statistics and air force statistics prepared by us.

Hugo L. Black:

Then, you think probably you are wrong in saying that is less than an honorable discharge?

Donald B. Macguines:

I think it might have been phrased more artistically to say other than an honorable discharge.

Earl Warren:

Some place in the — in the briefs, I — I thought I saw that 95% of all servicemen received the accolade, is that — is that correct?

Donald B. Macguines:

Well, the — the figures are given in this table on page 38.

Earl Warren:

Well, but they — but they don’t say in percentages.

Donald B. Macguines:

No.

Earl Warren:

Is it — is that approximately true that 95% of the —

Donald B. Macguines:

That’s a rough approximation.

I would think that is true.

Earl Warren:

Yes.

And what approximation will get a dishonorable discharge or a bad discharge of any kind, do you know?

Donald B. Macguines:

I am sorry.

Audio Transcription for Oral Argument, Part 1: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker
Audio Transcription for Oral Argument, Part 2: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker

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Donald B. Macguines:

Neither the record nor the briefs contain that information.

Earl Warren:

Must be a sizable number, isn’t it?

Donald B. Macguines:

Well, the Court knows that there is substantial number of court-martials every year.

What that number amounts to, I’m just not in a position to say.

Earl Warren:

Yes.

Well, the point — point is simply this that in my mind, that if 95% get an honorable discharge, what you call the accolade, and a large number of them get dishonorable discharges and — and discharges below even the one that this man got, the number of this kind of discharges is apparently very small, is very, very small.

Donald B. Macguines:

Well, in terms of the overall total of discharges, it certainly is.

Earl Warren:

Yes, all right.

Now — now why — why would that small number of men be — be denied the honorable discharge?

I just want to know —

Donald B. Macguines:

Yes.

Earl Warren:

— what — what caused it and why you do it and what the necessity for — for the two different kinds are if you want the public to believe that this general discharge is the equivalent of an honorable discharge?

Donald B. Macguines:

Will You Honor permit me to lead up that to that answer?

Earl Warren:

Yes, yes, in your own way.

Donald B. Macguines:

Yes, thank you.

As we read 175 years of legislative practice in this country running back to before the revolution, Congress has never intended to vest in the civil courts discretion to decide what types of discharges shall be prescribed by the armed forces, that is to say what categories of discharges, nor has it attempted to vest the courts with jurisdiction to decide what established form of certificates shall be given to a particular soldier under any particular circumstances.

The British Articles of War at the time of the revolution required that a soldier be given a discharge.They did not specify honorable or dishonorable or other types of discharge.

That has been carried forward through the continental Congress in the Articles of War and after the Constitution was adopted through the early Congresses in the Articles of War and it has been carried forward to date.

Specifically, the statute which is applicable to petitioner’s discharge is an Act of 1920 which provides that no —

Where is that?

Donald B. Macguines:

That may be found at the back of our main brief, Your Honor, at page 78, paragraph number two.

This is the basic statute of this.

Donald B. Macguines:

This is the basic statute under which the discharge was given to petitioner.

And the Court —

Hugo L. Black:

Is this — is this the only one to which we need look —

Donald B. Macguines:

No, I will —

Hugo L. Black:

— for the authority for this particular discharge?

Donald B. Macguines:

I will in a moment refer to one other subsequent statute.

But the Court will observe that under that statute, first, every enlisted man must, upon his discharge, be given a certificate of discharge.

And secondly, that no enlisted man shall be discharged prior to expiration of his term except in the manner prescribed by the Secretary of the Department of the Army or by court-martial.

Audio Transcription for Oral Argument, Part 1: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker
Audio Transcription for Oral Argument, Part 2: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker

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Donald B. Macguines:

Note again that Congress, even to this date, has never specified whether there shall be honorable discharges, general discharges, undesirable discharges or so forth, nor has it ever set forth the conditions under which the man receives one type of discharge rather than another.

Hugo L. Black:

Have there been regulations which have the effective law —

Donald B. Macguines:

Yes.

Hugo L. Black:

Which you have that (Voice Overlap) —

Donald B. Macguines:

And that is my point, that Congress has left in the military establishments, the full discretion to prescribe by regulation, what types discharge that shall be and under what circumstances a particular type shall be given to a particular soldier.

William J. Brennan, Jr.:

Now, was Harmon discharged before his term of service expired?

Donald B. Macguines:

Yes, Your Honor.

So this statute has direct application to petitioner.

Now, the only other statute which has direct application to petitioner is — is the following paragraph on page 78 of our brief.

The Universal Military Training and Service Act.

And — and when that Act was enacted, there was the Secretary of Defense, super imposed upon the three military establishments.

So it provides that no soldier shall be discharged prior to expiration of his term of service except in accordance with procedures prescribed by the Secretary of Defense, which I take it means super imposes a general discretionary authority of the Secretary of Defense upon the Secretary of the Army.

But Congress again had stayed completely away from the whole problem of what types of discharges there shall be and how — and under what circumstances they shall be given.

Now, in the Armed Forces Reserve Act of 1952 which is directly applicable to the next case to be argued, the Abramowitz case, there is a similar provision providing for discharge in accordance with regulations promulgated by the appropriate Secretary of the military establishment.

Now, Mr. Justice Black asked about the regulations.

And the types of discharges have been for generations prescribed by the heads of the military departments.

At the present time and at the time applicable in this case, there were five types of discharges given by the army.

The first, the appellate as I put it is the so called honorable discharge.

The second, the one which petitioner received is the general discharge under honorable conditions.

Are the regulations covering these different categories of discharges printed in your brief?

Donald B. Macguines:

Yes — yes, Your Honor.

They are described in general terms in page — at page 32 of our brief, with a general indication of the different circumstances under which each type of discharge becomes appropriate.

Thank you.

Earl Warren:

Well, do you — do you quote the — the regulation under which the general discharge is issued?

Donald B. Macguines:

No, we do not set that forth in text Your Honor.

Earl Warren:

Why not?

Isn’t it — isn’t it a very important thing in this case?

Donald B. Macguines:

Yes, I think it might have been well to do that, I regrettably —

Felix Frankfurter:

You can still do it.

Donald B. Macguines:

But we — I will be happy to supply the Court with — with verbatim printed copies of the regulation itself if that would be —

Audio Transcription for Oral Argument, Part 1: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker
Audio Transcription for Oral Argument, Part 2: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker

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Earl Warren:

Well, can you read it to us now?

Donald B. Macguines:

Yes, Your Honor.

Earl Warren:

That to me it’s very important to know if you’ve got a regulation for — for an honorable discharge and another regulation for a general discharge and you’re claiming that he’s only entitled to a general discharge, and the other side is claiming he is entitled to an honorable discharge, seems to me elementary that should — it had both those regulations in this — in this record some place where we could — where we could read them.

Donald B. Macguines:

Yes.

They — they are set forth by petitioner in his brief in part at page 52 of the petitioner’s brief.

Now, if — if the Court wishes to turn to paragraph eight, near the bottom of page 52.

Hugo L. Black:

Is that the controlling one here?

Donald B. Macguines:

Well, not that sole paragraph.

It is an applicable one but there are others that have bearing on the question.

But counsel for petitioner has pointed out that under paragraph eight of that regulation, a soldier gets the honorable discharge if his character and efficiency ratings have been very good and excellent, and he has not been convicted by court-martial, except as otherwise provided in the regulations.

Now, of course here, there is an except as otherwise provided because the reference there to paragraph 13, except as provided in these regulations and pertinent regulations listed in paragraph 13, paragraph 13 is regrettably not printed by either side, but I have it here.

Earl Warren:

Well, why is it —

(Inaudible)

Earl Warren:

Why isn’t it printed, Mr. — it seems to me that that’s a very vital elementary in this case.

Why shouldn’t we have it?

Donald B. Macguines:

Well, I — I — of course, I agree the Court should have it and I suggest that perhaps the most convenient form would be for us to submit the — the official printed form of the regulation itself.

Felix Frankfurter:

Would you agree — would you agree that if in fact without any controversy about the underlying fact establishment, if in fact a claim is made that a discharged soldier comes within a particular regulation and he has been denied what the face of the regulation entitled him to that he could enforce that regulation even in a court of law.

Donald B. Macguines:

No, I do not agree with that, and that leads me —

Felix Frankfurter:

I hope you get my question.

Donald B. Macguines:

I — I hope I do too, and I think I do.

Felix Frankfurter:

My question is, if in contesting, a person comes within a regulation promulgated by the army, they say any person is valid by the one, two, three condition, comes within this regulation rather than that, you can enforce that regulation provided there is no controversy as to where they comes within that regulation.

Donald B. Macguines:

And Your Honor means enforce it in the civil courts?

Felix Frankfurter:

The regulation says that he is entitled to this kind of a discharge.

Donald B. Macguines:

Yes.

Felix Frankfurter:

He says I am — I come within those terms and the War Department comes in and says, “Yes, he comes within those terms, but we have chosen not to enforce that regulation.”

You say even then there is no resort to the civil authority?

Donald B. Macguines:

I do for the reason.

Felix Frankfurter:

Well, I just want to know.

Donald B. Macguines:

For the reason that Congress has provided an alternative system of justice to take care of that in similar situations.

Felix Frankfurter:

How could he enforce that regulation?

Audio Transcription for Oral Argument, Part 1: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker
Audio Transcription for Oral Argument, Part 2: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker

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Donald B. Macguines:

He enforced it first by applying to the Army Discharge Review Board.

Felix Frankfurter:

I know the — he goes through the whole thing and the Secretary for the Army, let me suppose, an unfair situation.

Everybody along the line disregard, says, “Yes, he comes within this regulation but we are not going to give him the benefit of it.”

Donald B. Macguines:

Well —

Felix Frankfurter:

He then enforces it in the court of law —

Donald B. Macguines:

We say no.

Felix Frankfurter:

No, all right.

Donald B. Macguines:

We say no.

We say that Congress with finality said, “If this situation arises, we will give the solider a remedy within the service department and that’s the end of it.”

Felix Frankfurter:

I am suggesting he exhausted all of them.

Donald B. Macguines:

I understand but I am saying that what Congress said was that’s the end of it.

Felix Frankfurter:

All right.

Hugo L. Black:

May I ask just one more question to be sure in the influence.

Suppose of what you say — suppose the army had said yes, we discharged him — we discharged him because we didn’t like his religion, to give him a discharge less than honorable, could he go to court?

Donald B. Macguines:

Even in that extreme, in fact almost unimaginable case, we would say that he could not because Congress does not intend that there shall be a legal right in the justiciable sense to a particular type of discharge.

William J. Brennan, Jr.:

However arbitrary the action of the army may be?

Donald B. Macguines:

However, precisely because —

William J. Brennan, Jr.:

No matter how extreme we may suppose a case of arbitrary and capricious action.

Donald B. Macguines:

Exactly.

William J. Brennan, Jr.:

He has no remedy in the court of law.

Donald B. Macguines:

Exactly.

In our view, Congress has —

William J. Brennan, Jr.:

Are you going to establish that?

Donald B. Macguines:

I — I certainly hope so.

William J. Brennan, Jr.:

I’d be very delightful from hearing it.

Felix Frankfurter:

Is that what this case is about?

Donald B. Macguines:

Well, that is an element.

Certainly, that is an important element in this case.

Now, the statute which set up the Army Discharge Review Boards provided that the discharge given should be final subject only to review by the Secretary.

That is one instance of a congressional statement of finality.

Audio Transcription for Oral Argument, Part 1: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker
Audio Transcription for Oral Argument, Part 2: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker

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Donald B. Macguines:

And further more in 19 —

Earl Warren:

Is that – Is that always a statement of that kind always preclude judicial review?

Donald B. Macguines:

No.

Every finality clause should be read in the light of its history.

And we say here that this finality clause is to be read in that light for the historical reason that traditionally from the beginning of our Government Congress has left it wholly up to the service departments as to what discharge soldier John Jones gets.

Felix Frankfurter:

I suggest that there is no case to correct you, but I suggest there is no case which worries you or calls upon you to take the position as they did.

No case in which the extreme limits of military authority and non-interference by the civil authority has been recognized that warrants the statement that you made because no situation has been —

Donald B. Macguines:

Well —

Felix Frankfurter:

— presented to the Court.

Donald B. Macguines:

I quite agree that that the —

Felix Frankfurter:

And why do you argue such an extreme position of what you don’t have —

Donald B. Macguines:

Well, I was answering Your Honor’s contention.

The suggestion —

Felix Frankfurter:

Well, but there are various ways of answering

Donald B. Macguines:

— that if that occurred —

Felix Frankfurter:

One way of answering is that I am not qualified to take a position for the Government in the situation that it support.

That’s one way of answering.

Donald B. Macguines:

What Your Honor is now suggesting if I understand you is that probably no secretary of war has been so wholly arbitrary —

Felix Frankfurter:

That isn’t what I am suggesting at all, I am suggesting that a lawyer with the responsibility of the seriousness that confronts the Government in this case need not take the extreme position that the record doesn’t call for.

That’s what I am suggesting.

Donald B. Macguines:

Well —

Hugo L. Black:

That’s the main basis of the argument in your brief, isn’t it?

Donald B. Macguines:

The main — our — our first contention is that Congress has left to the military establishments the only course of redress for situations which may arise and has provided to administrative tribunals within each military establishment for that expressed purpose.

Well, if it —

Hugo L. Black:

What case — what case of ours do you rely on both instance?

Donald B. Macguines:

Well, this that — that precise case has not been decided by this Court.

In Patterson versus Lamb, this court expressly said it was not passing.

Your Honors’ opinion by the way said you are not passing on the question as to whether the civil court had any jurisdiction to review the military discharge given.

William J. Brennan, Jr.:

Well if Congress has done that, I suppose you would agree that there might be a constitutional question whether in the case of an arbitrary action such as I put to you, there was a denial at least to due process.

Donald B. Macguines:

I do not think so, Your Honor.

Audio Transcription for Oral Argument, Part 1: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker
Audio Transcription for Oral Argument, Part 2: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker

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Donald B. Macguines:

And —

Felix Frankfurter:

And you are going to argue that too?

Donald B. Macguines:

If, if Your Honor [Laughs] —

Felix Frankfurter:

Argue that constitutional question?

Whether — whether Congress has power to leave all military matters to the military authorities, you are going to argue that question in this case too?

What else aren’t you going to argue?

Donald B. Macguines:

I will argue any question which a Justice ask me to argue.

Felix Frankfurter:

Well, that is my notion of your responsibility if I may say so.

Donald B. Macguines:

But of course in the cases which have come before this Curt and the lower courts, in large part, they have been habeas corpus reviews of court-martial proceedings.

And the test there which the Court has laid down is that if it is conceded that the man is in the military establishment and if it is conceded that the court-martial which tried him was constituted in accordance with law and it had jurisdiction to pass on the offense with which he was charged, that’s the end of it.

That for considerations of army discipline, the fact that the military establishment is an entirely separate community, as this Court has put it, from the civil community, that — and for separation of powers consideration that the courts do not at all take the same type of review of military action as they do of course of governmental action which affects civilian rights.

And piecing together all of those things, the consistent course of congressional action, the extremely limited review which this Court has given even in the habeas corpus case where a statute expressly confers upon this Court — pardon me, and on the District Courts, jurisdiction in habeas corpus.

Taking all of those things together, we consider that Congress did not intend to make the matter of a man’s discharge the kind of a legal right which was proper subject matter for the civil courts to pass on.

Now, Congress has recognized the distinction between the various types of discharges in this sense.

The so-called punitive discharges, the bad conduct and the dishonorable discharges may, under the Uniform Code of Military Justice, only be given by sentence of court-martial.

In other words, that is a form of punishment imposed upon the soldier where he has been found guilty of a violation of offenses formerly prescribed by the Articles of War and now carried forward into the Uniform Code of Military Justice.

But on the other hand, the so-called administrative types of discharge, the honorable discharge, the general discharge under honorable conditions and the undesirable discharge, those are not given for the commission of offenses in the same sense at all.

They are not given because the man has been found guilty by a court-martial offense, they are given because the army has decided that from the standpoint of the efficient operation of the army, it’s better off not to have Private John Jones in the Army.

Now, the general discharge under honorable conditions which is given here is given for many things which have nothing whatever to do with security considerations.

It’s specifically given, for instance, if the soldier lacks physical stamina.

It’s given if he is psychologically ill-equipped for combat conditions, and many other thing, it is merely a determination of the Army, that although the man has served under honorable conditions for one reason or another and may be wholly beyond his fault or anything that he can correct, the Army is just better off not to have that man in the service.

Earl Warren:

Is that true even though his character is rated as excellent and his performance is rated as excellent?

Donald B. Macguines:

Oh, yes.

Earl Warren:

All right.

Donald B. Macguines:

Yes.

Earl Warren:

Now, tell me please how you justify that under this regulation eight as it appears on page 52 and regulation nine as it appears on page 53 of the brief for petitioner which you just —

Donald B. Macguines:

Well —

Earl Warren:

— which you just —

Donald B. Macguines:

I — I justify it because paragraph eight of that regulation starts out by saying except as prescribed by the regulations with specific reference to paragraph 13.

Where do we get that one, I have been looking for it and can’t find it.

Audio Transcription for Oral Argument, Part 1: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker
Audio Transcription for Oral Argument, Part 2: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker

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Donald B. Macguines:

Which?

It’s seems to me that’s the bottom of your whole case.

Donald B. Macguines:

Paragraph 13.

Yes.

Earl Warren:

Yes.

Where is it?

Donald B. Macguines:

As I say, regrettably, neither side has printed that and that’s what I have suggested that I will submit the complete regulation —

Hugo L. Black:

You have it that way — you have it that way, you could read it to us —

Donald B. Macguines:

Yes, Your Honor.

Hugo L. Black:

— unless, it’s too long.

Donald B. Macguines:

Yes, Your Honor.

Paragraph 13 is headed separation prior to expiration of period of service.

When discharged or released from active military service is to be effected prior to expiration of enlistment, inductment or period for which ordered into active military service, it will be accomplished under whichever is appropriate of the following regulations, and then it gives the various numbered army regulations and the general subject a) homosexual, b) disability, c) disability existing prior to entry on active service, d) marriage and pregnancy and various other things including convenience of Government, misconduct, unfitness, inaptitude or unsuitability, disloyal or subversive.

In other words —

William J. Brennan, Jr.:

Which one does this fall under?

Donald B. Macguines:

Well, this — this particular edition of this regulation was issued prior to the now current regulation dealing with security.

But in the current edition of the regulation, that is listed under paragraph 13 which is the Army Regulation 604-10.

And that is the regulation by which the Army has proscribed a security standard.

William J. Brennan, Jr.:

I don’t follow this, Mr. MacGuineas.

Is this 605-10 —

Donald B. Macguines:

60 —

William J. Brennan, Jr.:

— or whatever it is, a supplement or amendment to 13 or what?

Donald B. Macguines:

No, you see —

Hugo L. Black:

Is that cited — is that quoted in your brief?

Donald B. Macguines:

Yes, Your Honor.

That doesn’t govern this case, does it?

Donald B. Macguines:

Yes, Your Honor.

604-10 is the regulation applicable which sets forth the grounds on which petitioner was dismissed to wit that the Secretary of the Army concluded that his retention in the service was not clearly consistent with the national security.

William O. Douglas:

Where is it (Inaudible)

Donald B. Macguines:

Well, if Your Honor will turn to the — the record at page 33, you will find set forth Department of Defense Directive number 5210.9.

Audio Transcription for Oral Argument, Part 1: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker
Audio Transcription for Oral Argument, Part 2: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker

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Donald B. Macguines:

That was the initial statement promulgated by the Secretary of Defense.

Hugo L. Black:

Well, is that 614?

Donald B. Macguines:

No, then 604-10 was later promulgated.

Hugo L. Black:

Where is it in the record or in your brief?

If it’s to knowing, why — why this —

William O. Douglas:

It’s not in your brief.

Donald B. Macguines:

No, I’m sorry to say that it has not been set forth in the brief.

Earl Warren:

That is not in the record.

Donald B. Macguines:

It is not in the record.

Earl Warren:

Why isn’t it in the brief?

I ask you once more.

Donald B. Macguines:

Yes.

Earl Warren:

I asked about each of these because it — it seems to me that it’s so unusual that the Government would not print in its — in its briefs a statute that it wants us to rely upon in a case of this — case of this kind.

Donald B. Macguines:

The statutes are printed, Your Honor.

You mean the regulations, yes.

Earl Warren:

The regulations, yes.

We can get the statutes very easily but the regulations are a little more —

Donald B. Macguines:

Well —

Earl Warren:

— difficult to get.

Donald B. Macguines:

I quite agree that the brief should have been more complete in that respect and I do not like —

Earl Warren:

But it really is a brief without that —

Donald B. Macguines:

I — I —

Earl Warren:

— because it — those are the things you rely upon with your offices.

Donald B. Macguines:

I do not like to disclaim any personal responsibility but perhaps the Court will permit me to call the attention to the fact that my name is not on the Government’s brief.

Well —

Earl Warren:

Well, I would think you take some comfort in that.

[Laughter]

Hugo L. Black:

Did the Court of Appeal both the —

Donald B. Macguines:

I beg your pardon?

Hugo L. Black:

Did the Court of Appeals invoke that withholding regulations?

Audio Transcription for Oral Argument, Part 1: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker
Audio Transcription for Oral Argument, Part 2: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker

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Donald B. Macguines:

If Your Honor has the briefs in the next case, number 141.

Hugo L. Black:

Well, I’m just asking that the Court of Appeals had decided this case, referred to that regulation, what you say is controlling.

Donald B. Macguines:

No, the Court of Appeals referred to Department of Defense Directive 5210-9.

Now, the explanation for that as I understand it, and this is a point on which petitioner has never brought forward.

The — the Department of Defense Directive 5210.9 was promulgated in April of 1954.

That same month, petitioner was given his first discharge, the then undesirable discharge.

Up to that time, the army had not promulgated its implementation of the Department of Defense Directive.

That implementation is Army Regulation 604-10.

Hugo L. Black:

You mean what —

Donald B. Macguines:

It is —

Hugo L. Black:

What — what you say is controlling, had not been promulgated by the Army at the time the man was discharged?

Donald B. Macguines:

We — we take the — we take the position that the Department of Defense Directive in itself was sufficiently self executing so to speak, that it would justify action by the Army even in advance of the promulgation of its formal security regulation.

William J. Brennan, Jr.:

Well then, that’s what I asked you before.

Is it that you’re suggesting that the 604-10, I gather now that this — whatever the other one was, I’m so confused about all this now.

But my understanding is that as to the Department of Defense, security regulation is appropriate, upon which you justify the action taken as to Harmon.

Donald B. Macguines:

Yes, that — that was directive —

William J. Brennan, Jr.:

Now, is that done by reason of an argument that, that somehow amends the regulation 9 as to general discharges or the regulation of 8 as to honorable discharges?

Donald B. Macguines:

Well, that defense directive represented the promulgation of a new policy with respect to discharges, to wit a specific basis for discharging a man because his retention in the service was not deemed to be clearly consistent with the national interest.

William J. Brennan, Jr.:

Well now, that argue then that completely independent of the regulations 8 and 9, governing honorable and general discharges.

Donald B. Macguines:

Well, this —

William J. Brennan, Jr.:

This policy of itself justifies what was done without reference to those regulations?

Donald B. Macguines:

This regulation or this directive, I beg your pardon, states that the type of discharge given under this directive shall be in accordance with the character of the derogatory information against the man.

In other words, it — the type of discharge might vary depending upon the judgment of the Secretary of the Army as to how serious the case against him was.

Felix Frankfurter:

Mr. MacGuineas, at the risk of repetition, would you be good enough to state categorically what materials statutory regulatory directive were in existence at the time that this discharge was issued?

Thus, give me the —

Donald B. Macguines:

Well, now —

Felix Frankfurter:

— reference.

If you’re not — didn’t you say you haven’t prepared this brief, you must have been — you’re not speaking to the brief when you’re speaking to your own preparation.

Now, what materials underlay what relevant controlling materials or authorizing materials were in existence when this discharge was issued?

Donald B. Macguines:

I’ll be glad to do that, Your Honor, but may I point out that there were two discharges issued in this case.

Audio Transcription for Oral Argument, Part 1: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker
Audio Transcription for Oral Argument, Part 2: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker

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Felix Frankfurter:

I don’t care what — all right I mean the one that’s before us because I take it the other one is displaced.

Donald B. Macguines:

Good, then at the time — it — when the Court is considering the last discharge as being the only one in effect, that is the —

Felix Frankfurter:

I don’t know what others may think, but for me that’s the question before the Court.

Donald B. Macguines:

I — I agree.

Earl Warren:

Well, I’m interested in the first one too so I suggest that you tell us what was in existence when the first one came up and then what was in existence —

Felix Frankfurter:

The tempering.

(Inaudible) you’re talking about.

Earl Warren:

Yes, yes.

Felix Frankfurter:

But at this confusion when we haven’t got the documents.

Donald B. Macguines:

I shall proceed chronologically.

At the time that petitioner was given his first discharge which was an undesirable discharge, the applicable statute was the Act of 1920 quoted in our brief.

The administrative regulation applicable and the only one applicable at that time was Department of Defense Directive 5210.9.

But when the Army later conducted a general review —

Pardon me, that’s the one that’s printed in page 52 of the petitioner’s brief, is that right?

Donald B. Macguines:

The — the directive is in the

(Inaudible)

Donald B. Macguines:

That’s in the record itself.

Earl Warren:

Page 33 of the record.

Donald B. Macguines:

Page — beginning at page 33 of the record.

And that is the only administrative regulation which was in effect at the time of the first discharge.

But subsequently after this lawsuit was in process, the army undertook a general review of all cases going back several years, of all cases of soldiers who had been dismissed under the so-called security program.

Earl Warren:

Well now, had he — had this man been dismissed at that time?

Donald B. Macguines:

Yes, he was dismissed and then —

Earl Warren:

Well, you — you said you were going to take it chronologically and — and there were only — only these two, eight and nine of the regulations plus this directive at the time he was discharged.

The time he got the —

Donald B. Macguines:

No.

Yes.

Earl Warren:

— undesirable discharge.

Donald B. Macguines:

At the time he got the undesirable discharge, the only — the only regulation in effect was the Department of Defense Directive 5210.9 in the record at page 33.

Earl Warren:

Yes.

Audio Transcription for Oral Argument, Part 1: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker
Audio Transcription for Oral Argument, Part 2: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker

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Donald B. Macguines:

At that time the Army had not yet promulgated its implementing regulation.

Earl Warren:

Yes.

Donald B. Macguines:

Now — now —

Felix Frankfurter:

Were — were there no regulations enforced at the time defining categories of discharges at that time?

Donald B. Macguines:

Oh, yes, surely.

Felix Frankfurter:

Well aren’t they relevant?

You said a minute ago — a few minutes ago —

Donald B. Macguines:

Well —

Felix Frankfurter:

— this goes back to the beginning of things where the beginning of things gave authority for promulgating regulations, so the regulatory system becomes relevant throughout our history.

Donald B. Macguines:

Well, the regulation in effect at that time which set forth the conditions under which different types of discharges would be given was the one to which I previously referred Army Regulations 615-360.

And that is the one that I said provided for a discharge for a lack of physical stamina, psychological unsuitability and — and many other things.

Hugo L. Black:

Were there any event that provided for discharges for conduct which would reflect discredit on that soldier —

Donald B. Macguines:

Yes.

Hugo L. Black:

— over this court martial?

Donald B. Macguines:

I — I beg your pardon, what did you say about court-martial?

Hugo L. Black:

Were there any of those grounds in that statute, in that regulation, to authorize discharges of the kind that would reflect discredit on the character of the solider otherwise, other than those which provided the court-martial?

Donald B. Macguines:

Yes, a homosexuality is an example.

Hugo L. Black:

Was — was it provided that he should have a trial of any kind, to be convicted of —

Donald B. Macguines:

No that’s the whole point.

These administrative discharges are not given as a consequence of a conviction of any offense prescribed by the Articles of War.

They merely represent the judgment of the Secretary of the Army that we feel were better off not to have John Jones in the army —

Hugo L. Black:

I understand that, but because the question, he is a homosexual there, what proof?

Whose judgment was obtained on that besides the Secretary of the Army?

What did the man have to do with it?

Was he given a trial of any kind before that was put on his record?

Donald B. Macguines:

No, no, not — not in the trial in the sense that Your Honor is speaking of it, he was not.

Hugo L. Black:

I’m talking about any kind of —

Donald B. Macguines:

No.

Hugo L. Black:

— any kind of the hearing such as a man would want who was charged with a very serious thing of that kind.

You mean that the army, Secretary of the Army could just say we don’t want him, he is a homosexual without proof, without anything else, with no review of him.

Audio Transcription for Oral Argument, Part 1: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker
Audio Transcription for Oral Argument, Part 2: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker

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Donald B. Macguines:

Well, the review since 1954 has been provided both before the Army Discharge Review Board, where the man does have a full opportunity for a hearing and also if he’s turned down there, he goes to the Board for Correction of Military Records, where he also has the second opportunity for a full hearing.

Hugo L. Black:

That’s since 1954.

Donald B. Macguines:

Since 1944.

Hugo L. Black:

1944?

Donald B. Macguines:

1944.

(Inaudible)

Donald B. Macguines:

1944.

The Army Discharge Review Board was established by statute passed in 1944.

Felix Frankfurter:

Mr. MacGuineas, I should think it would help the Court if you told it the history of this discharge without honor which has an important history, well-known in the history of this country, namely the discharge of a whole regiment by the Commander in Chief, President Theodore Roosevelt in the case — in the Brownsville soldier’s case.

Why do you argue this case, all of the abstract, as though that is a sudden new thing without a large practical history behind it and a judicial history?

Donald B. Macguines:

Well, I — I thought I indicated that the particular form of honorable discharge under general conditions goes back to 1921, I believe it is, and it is true that prior to that time, there were other forms of discharge given by the military service which was not the honorable discharge and yet was not a dishonorable discharge, an intermediate form of discharge.That sort of thing goes back at least to the Civil War and the — the precise characterization of the discharge has changed in accordance with change in regulations from time to time.

Now, if I may —

Felix Frankfurter:

And with — with the Chief Justice’s permission, may I suggest that when you submit that in print, the materials that are relevant for the understanding of this case in determination of it, you indicate what materials meaning by that statute regulation directive were in existence at the time of the first piece of paper, the undesirable discharge and what were in existence at the time of the second discharge.

So we keep these things apart and know what was before the authorizing authority, if they had authority, at the time that they acted as they did.

Donald B. Macguines:

Well, with the Court’s permission, we will submit a brief supplemental memorandum stating those facts and attaching as exhibits printed copies of all the regulations which are not set forth either in the record or in the briefs.

Hugo L. Black:

Do you agree that the type of discharge the army was entitled to give this man at the time he was discharged is governed and has to be governed by the law as it existed at the time he was discharged?

Donald B. Macguines:

Well, yes.

Charles E. Whittaker:

Mr. — Mr. MacGuineas, now let me see if I follow you.

You said I think that there were two discharges of Mr. Harmon.

Well now, the first was a mere transfer to another department, was it not?

Donald B. Macguines:

No, pardon —

Charles E. Whittaker:

And he was — was he not first given the undesirable discharge?

Donald B. Macguines:

Pardon me, Your Honor.

He was first given an undesirable discharge but that was not the question of the transfer, that is the situation which occurs in the next case, in the Abramowitz case.

Charles E. Whittaker:

All right.

This — this man got first an undesirable discharge, then while the case was pending in the Court of Appeals, the discharge was administratively changed to less than honorable condition or to do —

Donald B. Macguines:

General.

Charles E. Whittaker:

An Honorable condition.

Donald B. Macguines:

Under honorable condition.

Charles E. Whittaker:

All right now, do you not then say that the first discharge was under army Directive Number 5210.9, which was before the formation of the formal regulations on April 10, 1954 which became Regulation 604.10?

Audio Transcription for Oral Argument, Part 1: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker
Audio Transcription for Oral Argument, Part 2: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker

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Donald B. Macguines:

Exactly.

Charles E. Whittaker:

And that the Court of Appeals dealt with only the directive which was 5210.9

Donald B. Macguines:

That’s correct.

Charles E. Whittaker:

Yes.

Now, and then at the time of the discharge, the first one under which the undesirable discharge was given, the long fact was the Act of 1920 and the directive number 5210.9.

At the time of the second discharge which was the one under honorable conditions, the army had formulated its formal regulations and they were 604.10, is that what you’re telling us?

Donald B. Macguines:

That is correct, Your Honor.

Hugo L. Black:

Well, do you claim that — do you argue, this man was discharged undesirable, this (Inaudible) separate from the Amy referred, whatever period of time it was, could be subjective, the kind of discharge that was not authorized in the statue.

It was only authorized in the later regulation, or do you say — do you agree that the army, whenever it formalizes discharge, had to be governed by the law that was in existence at the time it actually put him out of the army.

Donald B. Macguines:

I agree to that but of course, whatever the army did in connection with the first discharge, whether it be right or wrong is now out of the case, because the first discharge has been wiped out and he now has the general discharge.

Hugo L. Black:

I understand that, but — but in the general discharge, the second discharge, determining whether the statute authorized that kind of discharge.

We have to be governed, do we not, by the law that was in effect when they put him out of the army, not by the law as it was changed thereafter.

Donald B. Macguines:

Well, what I — my — of course, my basic point is that that is not a matter of which the District Courts that —

Hugo L. Black:

But if — if we have done — the Army had —

Donald B. Macguines:

Yes.

Hugo L. Black:

–to be governed, —

Donald B. Macguines:

Yes.

Charles E. Whittaker:

— did it not —

Donald B. Macguines:

Yes.

Charles E. Whittaker:

— by the law as it existed and the regulations as they existed when they separated from the service, not when they gave him the second discharge.

Donald B. Macguines:

Yes, except that that fact is immaterial in this case because they did give him a second discharge.

Earl Warren:

Well, Mr. — Mr. MacGuineas, I — I — under those circumstances, I can’t get away from — from number 8, regulation 8 of 52 of petitioner’s brief and regulation 9 on the next page.

Now, 8 says that except as provided in these regulations and pertinent regulations listed in paragraph three, an honorable discharge certificate will be furnished when the individual meets the following qualifications.

One, as character ratings of at least very good.

Has efficiency ratings of at least excellent.

Three, has not been convicted by a general court martial, and four, has not been convicted more than once by a special court martial.

Now, number 9 says, general discharge, individuals discharged under honorable conditions which do not qualify them for an honorable discharge will be furnished a general discharge except as provided below and then below they make exceptions where they can even give them a general — an honorable discharge under those circumstances.

Now, I want you if you will please, to read me the language of any statute which govern his case at the time he was released from service in the Army.

You say it isn’t relevant, the kind of discharge he got when he was separated from the service, but I want to know what conditions — under what conditions he was discharged and I want to know the statutory or regulatory power that you rely on to vary these two regulations.

Now, read it to me please —

Audio Transcription for Oral Argument, Part 1: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker
Audio Transcription for Oral Argument, Part 2: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker

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Donald B. Macguines:

Yes, Your Honor.

Earl Warren:

— so I don’t —

Donald B. Macguines:

I read from —

Earl Warren:

— have it in my mind.

Donald B. Macguines:

I read from our brief at page 23, a quotation from the Act.

Earl Warren:

23.

Donald B. Macguines:

A quotation from the Act of June 4, 1920 which was the statute in effect at the time and was applicable to petitioner’s situation.

At the very bottom of the page 23, beginning —

Earl Warren:

Yes.

Donald B. Macguines:

— “No enlisted person lawfully inducted into the military service of United States shall be discharged from said service without a certificate of discharge and no enlisted person shall be discharged from said service before his term of service has expired, except in the manner prescribed by the Secretary of the Department of the Army or by sentence or court martial.”

Earl Warren:

All right.

Now, what — what does that statute refer to other than regulation 8 under for honorable discharges and regulation nine regulating general discharges, what — what in the regulations vary from those two sections?

Donald B. Macguines:

At the time the petition was given his first discharge —

Earl Warren:

Right.

Donald B. Macguines:

— which Your Honor is referring to.

Earl Warren:

When he was separated from the service.

Donald B. Macguines:

The — the very interest, and I may use Your Honor’s word, was Department of Defense Directive 5210.9.

Earl Warren:

All right.

Now, what did — what did that — what language do you rely on as varying this number nine, so as to warrant the Department of the Army giving him a general instead of an honorable discharge.

Donald B. Macguines:

Well —

Earl Warren:

I want to hear the language.

Donald B. Macguines:

The language would be the very opening of the paragraph eight except as provided in these regulations.

Earl Warren:

All right.

Now, where in the — what in the regulations do you rely on, please read me that.

Donald B. Macguines:

Well, at that time, the time of his first discharge, and the only regulation was the Department of Defense directives which we have referred —

Earl Warren:

Yes.

Donald B. Macguines:

— which prescribed a security risk program for the armed services.

Hugo L. Black:

Now, where did you say they could what they did here in that regulation?

Which part of that in that directive?

Donald B. Macguines:

In the directive?

Audio Transcription for Oral Argument, Part 1: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker
Audio Transcription for Oral Argument, Part 2: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker

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Hugo L. Black:

(Voice Overlap)

which part of that directive you rely on?

Donald B. Macguines:

If Your Honor will turn to the directive which is in the record at page 33, begins on 33.

And the — if you turn on to page 34, and you notice the purpose is to apply to military personnel the criteria for security programs established as national policy for civilian personnel by Executive Order 10450.

Hugo L. Black:

Where does it say anything about discharge?

Donald B. Macguines:

Yes.

Hugo L. Black:

In the discharging here.

Donald B. Macguines:

That is on — further over.

Hugo L. Black:

Page 43?

Donald B. Macguines:

On page — page 43, paragraph five.

If I may skip to the end of that paragraph, “He shall be separated and the character of the separation shall be predicated upon the gravity of the reasonably substantiated information in derogation.”

Hugo L. Black:

Well, what does that say about discharge?

Donald B. Macguines:

Well, character of the separation means —

Hugo L. Black:

On page 43?

Donald B. Macguines:

Yes, Your Honor, paragraph five in the middle of the page.

Means that he shall be —

Hugo L. Black:

Well, does it say anything about his discharge?

Donald B. Macguines:

Well, the character of —

Hugo L. Black:

(Voice Overlap)

what kind of discharge a man — does it authorize in any way departure from the traditional discharge with the Army since the first day it started to function, for non-honorable discharge for a man who’s — who’s honorably served in the Army?

Donald B. Macguines:

Well —

Hugo L. Black:

Does that show any — any departure, right of department?

Donald B. Macguines:

I — I am not able to accept Your Honor’s generalization that even prior thereto, every man who served honorably in the army got an honorable discharge.

A man can serve honorably in the Army and yet he didn’t have the physical stamina —

Hugo L. Black:

Why certainly but —

Donald B. Macguines:

— to be of service.

Hugo L. Black:

— that wouldn’t reflect —

Donald B. Macguines:

— yet he didn’t get an honorable —

Hugo L. Black:

That wouldn’t reflect on his honor, the fact that he was weak, he got sick.

I’m talking about the honorable discharge.

Audio Transcription for Oral Argument, Part 1: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker
Audio Transcription for Oral Argument, Part 2: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker

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Donald B. Macguines:

That’s my point.

Such a man —

Hugo L. Black:

It is imposed to be the most sacred thing a man from the Army gets.

Donald B. Macguines:

And that’s my point, such a man.

Purely because of his — his physical weakness does not get the honorable discharge.

That’s just my point.

Earl Warren:

But here’s a man who had no physical weakness, it’s an issue in this case, but he did have an excellent character and had an excellent performance record according to the records of the Army.

Now, what is it that shows —

Donald B. Macguines:

Well —

Earl Warren:

— that you can give a man of that kind less than an honorable discharge which you give to 95% of all the men who go through the armed forces of this government.

Donald B. Macguines:

Your Honor, that — that statement which is what petitioner’s counsel made is not an accurate statement of petitioner’s army record.

What he had was findings of excellence for fitness and character up until the time that the army started the proceedings which led to his discharge.

But for the period of the last few months of his military service, he did not have such a rating.

Earl Warren:

Well, they — they cut him off just like they cut him off from an honorable discharge apparently.

Donald B. Macguines:

Yes, but I — I thought Your Honor was — I merely wanted to correct the record in that respect.

Earl Warren:

How long was he — how long did they say that his conduct was unknown?

Donald B. Macguines:

Approximately 18 — oh, his conduct was unknown?

Earl Warren:

Well isn’t that what you determine he —

Donald B. Macguines:

Yes, that’s the last six weeks or so of his service —

Earl Warren:

All right.

Donald B. Macguines:

— just prior to his dismissal —

Earl Warren:

Well, I —

Donald B. Macguines:

— when these proceedings were undertaken.

Earl Warren:

I — I read here in — in Subdivision B of number 8, “Ratings of unknown and ratings for periods of less than two months are not disqualifying.”

Now, if this was only for six weeks, why didn’t he come under that?

Donald B. Macguines:

Well, that’s true within the terms if the man comes under paragraph eight.

But of course if he comes under the exception set forth in paragraph eight, then that provision has no application.

That talks about the circumstances under which you will get an honorable discharge if you are under paragraph eight.

Earl Warren:

Well, they — they’re all under paragraph eight or under nine —

Donald B. Macguines:

Except as — except —

Audio Transcription for Oral Argument, Part 1: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker
Audio Transcription for Oral Argument, Part 2: Abramowitz v. Brucker – January 15, 1958 (141) in Harmon v. Brucker

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Earl Warren:

Except as it may be modified.

Donald B. Macguines:

— as otherwise prescribed.

Earl Warren:

Yes

Donald B. Macguines:

And that’s the point.

Earl Warren:

But is there anything in 13 that would indicate that ratings of unknown are not disqualifying?

What in 13 —

Donald B. Macguines:

13 doesn’t —

Earl Warren:

What — what in 13 would indicate that there is any — any retreat from that statement that ratings of unknown and ratings for periods of less than two months are not disqualifying?

Donald B. Macguines:

Because 13 provides other grounds for discharge and as to which as I understand it, the — the Army man’s formal rating is immaterial.

In other words, a man might have been rated by his commanding officer as excellent and yet the army discovers that he is a homosexual.

He nonetheless maybe discharged under their exception regulation without being given an honorable discharge.

Earl Warren:

And that was then in existence at the time this man was given an undesirable discharge.

Donald B. Macguines:

The only thing in existence was 5210.9.

Earl Warren:

Yes.

Donald B. Macguines:

I — I regret that my time has expired.

I shall not have the chance to discuss our alternative point that even under the particular circumstances of this case, there is no justiciable controversy and that there is no legal injury resulting from the issuance of the general discharge to the petitioner, but that is discussed in our brief.

Earl Warren:

All right, sir.