Harmon v. Brucker

PETITIONER:Harmon
RESPONDENT:Brucker
LOCATION:Philadelphia Board of Public Education

DOCKET NO.: 80
DECIDED BY: Warren Court (1957-1958)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 355 US 579 (1958)
ARGUED: Jan 14, 1958 / Jan 15, 1958
DECIDED: Mar 03, 1958

Facts of the case

Question

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

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

    Earl Warren:

    Number 80, John Henry Harmon, III, Petitioner, versus Wilber M. Brucker, Individually, and as Secretary of the Department of the Army.

    Mr. Shapiro.

    David I. Shapiro:

    May it please the Court.

    This case is here on a writ of certiorari to the Court of Appeals for the District of Columbia Circuit.

    The basic question here is whether the Army can give a soldier a less than honorable discharge certificate, when the actual character of that soldiers service, require that the Army give him nothing less than an honorable discharge.

    These are the facts, on the 31st day of October, 1952, the petitioner who is a resident of the State of New York, a law student and perspective applicant for admission to the bar.

    He was newly inducted into the Army under the provisions of the Universal Military Training and Service Act of 1948.

    On February 9, 1954, 15 months had already elapsed from the time he had been inducted.

    His service, as disclosed by his service record, was excellent and he was then directed to reply the certain specific derogatory information.

    Contained in the letter of allegations proceed from the Adjutant General of the Army.

    This derogatory information was that in 1951 and 1952, he worked at a place called Camp Lakeland reportedly, a Communist operated camp.

    In 1949, he was employed by the Detroit Urban League according to the Army a subversive organization.

    Felix Frankfurter:

    Is the Detroit Urban League (Inaudible)

    David I. Shapiro:

    Yes, sir, it is.

    In 1952, it registered to vote in New York City with the American Labor Party which had been cited by a House Committee as under Communist control.

    Felix Frankfurter:

    What — was there about Detroit Urban League that he is a member of that?

    David I. Shapiro:

    That he had been employed by the Detroit Urban League I —

    Felix Frankfurter:

    Is that on attorney general’s brief?

    Do you have any?

    David I. Shapiro:

    No, sir.

    It is not.

    Felix Frankfurter:

    (Inaudible)

    David I. Shapiro:

    Well, according to the Army’s letter of allegations, it was reportedly a subversive organization.

    How it got there, I don’t know.

    Felix Frankfurter:

    The National Urban League?

    David I. Shapiro:

    They didn’t say the National Urban League but they — they did specify the Detroit Urban League.

    The fourth allegation basically was that he had solicited contributions for the legal defense of persons who had been indictment under the Smith Act.

    Now, Harmon was also directed to reply to certain derogatory information concerning both his father and his stepmother and both of whom were alleged to have had subversive associations, his father reportedly, being a member of the Communist Party.

    Several weeks after he got the letter —

    Where are they (Inaudible)

    David I. Shapiro:

    They are set forth at pages 3 and 4 of the record in this case.

    That’s the printed record, Your Honor.

    (Inaudible)

    David I. Shapiro:

    Yes, sir.

    He did.

    He replied with respect to himself and he said that he was not then and he had never been a member of the Communist Party but he refused categorically to answer any questions with respect to either his father or his stepmother.

    I should like to point out that all of the letter of allegations, all of the allegations contained in the letter, relate solely to legal activities which this young man carried on as a civilian prior to the time he was inducted into the Army with two exceptions.

    He continued his association with both his father and his stepmother.

    And several weeks after he’d been inducted, he did write a letter to two civilian friends, in which he asked that they make a contribution to the legal defense of two persons who’d been indicted under the Smith Act.

    Now, on the 2nd of June, 1954, without any notice or hearing or whatever other than this letter of allegations received on February 9th.

    Former Private Harmon was escorted off the Military post at Camp Pickett, Virginia with an undesirable discharge certificate in his pocket.

    And despite the fact that the entire 19 months, this young was in the Army, the only known ratings on his service record were excellent, both as to character and fitness.

    Six days after his undesirable discharge, Harmon applied to the Army Discharge Review Board for a change to the discharge certificate from undesirable to honorable and he appeared before that Board and testified that he’d never been a member of the Communist Party or any subversive organization and he was completely (Inaudible) loyal to the Government of the United States.

    And further than that, he wouldn’t hesitate to lay down his life and defense of his country against any or all of its enemies whomsoever.

    He stated this under oath.

    On the 15th of November, the same year, his appeal was denied and then he immediately appealed to the Board for the Correction of Military Records.

    But they wouldn’t even hear him and that appeal was denied.

    And then he finally appealed to the Secretary of the Army himself and he waited.

    He waited until May 2nd, 1955, and then he commenced the action which resulted in — are being here today.

    He brought litigation in the District Court for the District Columbia, in which he prayed for a declaratory judgment, which would invalidate the receipt of the undesirable discharge and he also asked for a leave which would change the character of the discharge certificate from undesirable to honorable.

    Now, after the complaint was filed in the District Court, counsel was informed that the Army Board for the Correction of Military Records, which wouldn’t even hear the case before, had been ordered to make a fresh evaluation of the case.

    Now, we replied that we would rely on the evidence, which had already been furnished through testimony before the Army Discharge Review Board.

    And which had already been placed, the complete file of transcript and record into the hands of the Board for the correction of military records since we have no additional evidence to present and on the basis of the plan and transcript before the Discharge Review Board, the Board for the Correction of Military Records once again refused to change the character of the discharge certificate.

    Now, in the District Court, on cross-motions for summary judgment, judgment was granted in the Army’s favor, the sole ground being that the District Court lack jurisdiction to review the issuance of the undesirable discharge certificate.

    But before argument was had in the Court of Appeals, petitioner was notified that his undesirable discharge certificate had been up rate.

    He wasn’t given an honorable discharge.

    He was given something in between that, something which is universally regarded by everyone as “substandard”, a general under “honorable” conditions discharge.

    And at the same time, the respondent filed a motion in the Court of Appeals suggesting mootness, but the application was denied.

    However, on the 31st of January of last year, 1957, the court below affirmed the decision of the District Court, Judge Bazelon dissented.

    Your Honors, we think the basic issue in this case as Judge Bazelon points out very clearly in his dissent alone, is whether Section 4 (b) of the Universal Military Training and Service Act pursuant to which directive 5210.9, and that’s the Department of Defense directive under which Harmon was given his original undesirable discharge, authorizes the issuance of less than honorable discharge certificate in the circumstances of this particular case.

    David I. Shapiro:

    Now, we really think that that’s the only issue before this Court and while respondents brief includes it in its counter statement of questions presented, his entire brief is spent in an attempt to avoid answering that question.

    William J. Brennan, Jr.:

    Well you — are you suggesting that as a matter of statutory construction only?

    David I. Shapiro:

    Yes, Your Honor.

    We say that that is really the key issue here because if this particular direct in the sense that we claim that it was invalid — invalidly authorized and void, was validly authorized.

    Then of course, his position has a great deal more merit but if it was not validly authorized, if in fact it was actually in excess of the authority granted to the Secretary of Defense under Section 4 (b), then we say that the entire case that the respondent has made out false.

    And I think I can make that clear.

    Felix Frankfurter:

    (Inaudible) do you say that the Secretary has — the Army under the statute is not authorized to issue this kind of a discharge or it does not authorize to use this kind of a discharge as to this particular petitioner, which is it?

    David I. Shapiro:

    I’m saying that it has no right to use the discharge certificate, this kind of discharge certificate to this particular petitioner, Your Honor.

    Felix Frankfurter:

    You’re not saying that the Army, under the regulation — under the statute, can’t make — can have this category, this kind of a — of a discharge, a situation that are appropriate to it.

    David I. Shapiro:

    For situations that are appropriate to it.

    In other words, what I’m saying is simply this.

    If a man is an excellent soldier, his discharge certificate has got to say so.

    Hugo L. Black:

    Hence, to say they cannot issue this kind of a discharge for free service reform?

    David I. Shapiro:

    Yes, Your Honor.

    That true and I think that with respect to the major allegations in this case, there is one exception.

    It was preinduction conduct and activity but we rest here on a broader gap ground because of the fact that several weeks after he’d been inducted, he did write a letter to two civilian friends, which was made the subject of the letter of allegation.

    What we’re really contending is this.

    That a man can be a security risk, whatever that is, but if he really is an excellent soldier then his discharge certificate has got to reflect the actual character of the service he is rendering.

    You don’t —

    Harold Burton:

    Then — then the Courts are free to reexamine the degree of his delinquency?

    David I. Shapiro:

    No, Your Honor.

    I think —

    Harold Burton:

    I understand you’re drawing the line as a free service point but once you take it to action, doing the service, you’re going to ask the court to examine to what he said that went.

    David I. Shapiro:

    No, Your Honor.

    I — I’m not doing that because on the record here there is no dispute as to the question of the character of the service.

    This man’s service for all the time that he was in except for two periods of several weeks, were known.

    They were characterized by his specific commanding officer and they were characterized on his service record, both with respect to his character and his efficiency, as being excellent.

    Harold Burton:

    You mean take the reward and can’t go beyond those characterizations?

    David I. Shapiro:

    No, sir.

    For this reason and that’s with respect to this particular kind of case because the regulation of the Secretary of the Army which is Army regulation 615-360.

    David I. Shapiro:

    Specifically steps and that’s the regulation, his own regulation with respect to the issuance of discharge certificates and which sets forth the criteria with respect to the issuance of honorable discharge certificates states as follows, “An honorable discharge certificate will be furnished when the individual meets the following qualifications, one —

    What page you’re reading from here?

    David I. Shapiro:

    That’s page 52 to 54, Your Honor of our brief, it in our appendix.

    That’s paragraph — it’s actually on page 52.

    Hugo L. Black:

    You mean of your petition for certiorari?

    David I. Shapiro:

    No, sir.

    In our petitioner’s brief, that’s page 52.

    One has character ratings of at least very good.

    Two, has efficiency ratings of at least excellent.

    Three, has not been convicted by a General Court Martial.

    Four, has not been convicted more than once by a special Court Martial.

    Now, the petitioner met all of these qualifications yet he was furnished a substandard discharge certificate.

    Despite the fact that paragraph seven of this very same regulation says, “Because the type of discharge may significantly influence an individual civilian rights, it is essential that all factors be considered so that the type of discharge reflect accurately the nature of the service rendered.”

    What’s the exception?

    Where do you find the exception as referred (Voice Overlap) —

    David I. Shapiro:

    The exception, Your Honor is the exception which leads us into the Department of Defense Directive 5210.9.

    Now —

    Earl Warren:

    Mr. Shapiro, suppose — suppose the man is a company director as certified by his company commander, he was excellent in this case.

    Suppose on the outside (Inaudible) referred to or some other crime, can they discharge the mere fact of his company conduct, he’s excellent, compel them to give him an honorable discharge?

    David I. Shapiro:

    No, sir.

    I think the reason for that is this.

    Earl Warren:

    I don’t know whether that’s pertinent thereafter.

    David I. Shapiro:

    I think it is Your Honor and I think really that’s the key to the problem of the case for these reason.

    When a man commits an offense against the civil law and he’s in the Army, he is nevertheless committing an act which is very much relevant to his service because he is placing himself by his conduct, during the time that he is in the Army in a position where he may be completely disabled by the nature of the action of the civil — civil authorities and by having himself incarcerated and to doing any kind of service for the Army whatever.

    Whereas here, the activities that this young man engaged in, had nothing whatever to do with and were completely extraneous from, the character of the actual military service that he gave the Army all during the time that he was in the service.

    Felix Frankfurter:

    So that — the Chief Justice’s question implied narrowly (Inaudible) if I understood it whether the discharge must cover merely — but I think it was solely and you say in effect it does before he gets into trouble with a single authority.

    He maybe define by being arrested from being able to compel (Voice Overlap) —

    David I. Shapiro:

    Exactly.

    Felix Frankfurter:

    Therefore you would say, this honorable conduct not related to soldiering while he was on service.

    David I. Shapiro:

    Well, it depends of course, Your Honor, upon your definition of the term by soldiering.

    Felix Frankfurter:

    By soldiering I mean, during the work of a soldier.

    But in connection to that, he cheated at power or he wrote the — a president letter (Inaudible).

    I don’t want to involve anything or imply anything that would happen (Inaudible) that wasn’t — could not be taken into account.

    David I. Shapiro:

    Well, I think that if he committed any Act which would reflect adversely, as the opinion of an attorney general on this particular statute has said, upon his military career such as powerless for example.

    Felix Frankfurter:

    I’m not talking about anything having to do with power.

    David I. Shapiro:

    Well, I could extend that —

    Felix Frankfurter:

    — would mean to very effective and dishonorable act, for that as a matter of (Inaudible)

    David I. Shapiro:

    Well, I would think, Your Honor that it would have to in some way relate, in some way.

    And I think, we can stretch the term relate as far as it goes to the — to the term soldiering before it could have some effect upon the discharge —

    Felix Frankfurter:

    Suppose it’s unrelated but in the orderly walks of life, you would say, he was guilty of dishonorable conduct, then you would say it cannot affect the quality of the discharge.

    David I. Shapiro:

    That’s correct, Your Honor.

    Felix Frankfurter:

    All right.

    I understand you.

    Hugo L. Black:

    Is there any army regulation or statute with reference that this had been comparable to that to create (Inaudible)

    David I. Shapiro:

    I don’t really know, Your Honor.

    But I do know this —

    Hugo L. Black:

    I understand the question asked by the Chief Justice was that a man (Inaudible) to civil law and committed a crime.

    That’s a violation of the military law.

    David I. Shapiro:

    Yes, sir.

    It is.

    Hugo L. Black:

    (Inaudible)

    David I. Shapiro:

    That’s right.

    It’s a violation of the Uniform Code of Military Justice.

    Now —

    Mr. Shapiro.

    David I. Shapiro:

    Yes Sir.

    Do you — I — am I mistaken in understanding that the Court of Appeals actually placed its decision on the ground that want the jurisdiction?

    David I. Shapiro:

    Yes, Your Honor.

    I think that is exactly the holding of the court below.

    So, instead of having as you say one question namely, the power of the Army or its officials to grant a discharge of this type to that — to this particular — to Mr. Harmon.

    You do have this initial question of jurisdiction.

    David I. Shapiro:

    Well, in one sense Your Honor you do, but if the first question is answered, then all of the subsidiary questions which involve this question to of jurisdiction to review or with it and this is the reason for that.

    Now, in the respondents brief he says, first, that the Court has no jurisdiction to review and second that this petitioner has suffered no injury to a legally protected right.

    Now, despite the holdings below, the very question of jurisdiction to review was specifically left open by this Court in a case called Patterson against Lamb.

    But when it’s considered that the discharge certificate itself confers a valuable kind of status and the district judge said it conferred property rights, community rights, civil respect and honor.

    We really think the courts do have jurisdiction to review whenever the military’s action was arbitrary, capricious or clearly erroneous is a matter of law.

    Now, we think also they have jurisdictional review if the challenge of the administrative determination was based on an ultra vires for unconstitutional administrative regulation, as we say it was in this case.

    And we certainly think that they have jurisdictional review with constitutional rights had been invaded by that action, as we think they were here.

    William J. Brennan, Jr.:

    Well, right there.

    Now, you told me earlier that this really narrowed down to a question of the construction of 4 (b) as the regulation reflected — that you –we’ve been discussing.

    David I. Shapiro:

    Yes, Your Honor.

    Now, I’d like —

    William J. Brennan, Jr.:

    Now, you’ve — now you’ve introduced some constitutional consideration.

    David I. Shapiro:

    Well, I think it also is a question of statutory interpretation because under this Court’s rule of restrictive review of statutes to avoid constitutional questions.

    We think the statute has either got.

    Number one, to be interpreted in the manner we say it has or it’s got to be stricken down as unconstitutional.

    William J. Brennan, Jr.:

    That’s the significance of your 2 (b) then of the (Voice Overlap) —

    David I. Shapiro:

    Yes, sir.

    William J. Brennan, Jr.:

    — page 3?

    David I. Shapiro:

    That’s — that’s correct, Your Honor.

    Now, —

    Hugo L. Black:

    (Inaudible) is there anything here that the conduct refer to is a violation of civil law or an army regulation?

    David I. Shapiro:

    None whatever, Your Honor.

    Hugo L. Black:

    Is that conceded?

    David I. Shapiro:

    I believe that is completely conceded except that it may violate one regulation itself, but that’s the regulation which is attacked here, Department of Defense Directive 5210.9.

    Hugo L. Black:

    The one you have to get reversed?

    David I. Shapiro:

    That’s right.

    Now, under the holding —

    Felix Frankfurter:

    And your — and your argument is that an honorable discharge must be given unless — unless there is a failure to satisfy (Inaudible)

    David I. Shapiro:

    Yes, Your Honor.

    Felix Frankfurter:

    Or unless not with the Chief Justice’s question, he is involved with the law so that he might be (Inaudible) or physically unable to carry out his soldier’s duty or unless he violates some controlling the military law.

    David I. Shapiro:

    I think that would be —

    Felix Frankfurter:

    But then he would — with respectful aspect (Inaudible)

    David I. Shapiro:

    Yes.

    That’s correct, Your Honor.

    Now —

    Felix Frankfurter:

    No — no outside, nothing outside of it.

    David I. Shapiro:

    Exactly, that’s our position.

    Now —

    You don’t question the right of the Army to discharge him for any reason that wished to.

    David I. Shapiro:

    No, Your Honor.

    We do not.

    Now, that’s very important distinction.

    In all of the cases which have been before this Court with respect to the problem of the discharge, these cases were concerned with the fact of discharge itself.

    Now, the fact of discharge is not in this case at all.

    We say that none of the constitutional questions, none of the statutory questions in this case, relate in any way to the fact of his being discharged.

    The Army could have always gotten rid of Harmon if they thought that security reasons warranted or for whatever reason they chose.

    Felix Frankfurter:

    But they can’t tell that.

    David I. Shapiro:

    Well, yes, in this sense.

    But what they can’t do is defame the character of the discharge certificate because in our view of the case, according even to the Army’s own regulations.

    The discharge certificate is one to record the character of the actual — record number one, the fact of the separation from the service and two, the character of the service rendered during the period covered by the discharge.

    That is during the time he was actually in.

    Now —

    Now, may I ask you

    David I. Shapiro:

    Yes, sir.

    I — I’m fearful of interrupting but I want to —

    David I. Shapiro:

    That’s all right.

    — just clear in my mind.

    Do you concede that the affirmative acts taken by Mr. Harmon while a soldier were grounds for giving him less than a — a dishonorable discharge?

    For example, the writing of the one letter or to — or the two letters to the two individuals asking him to contribute money to the defense — Smith Act defendants.

    David I. Shapiro:

    No, Your Honor.

    Well then, do they — if those — if those matters are of no consequence to the case, then do you have not have just simply the question of whether or not though his service was entirely honorable while in the army, question whether he could be given an honorable discharge for antecedent conduct?

    David I. Shapiro:

    Well, we think that question is very much principally involved in the case, the question of preinduction activities in conduct.

    But since we also do have the question of the letter writings several weeks after he was inducted, we take the position that the letter writing was completely extraneous to the character of a service.

    If he’d answered the questionnaire and said, “Yes, I am member of so, number so and so, the Communist Party.”

    You would say that he was still entitled to an honorable discharge?

    David I. Shapiro:

    Unqualifiedly, Your Honor.

    Well, didn’t he as a matter of fact —

    That’s — that what the —

    David I. Shapiro:

    That’s right.

    That’s our position in this case.

    Felix Frankfurter:

    Well, it goes beyond that.

    Does that mean, that while he was — while he was (Inaudible) must have honorable discharge waiting for the moment to the question of privilege.

    Secretary Brucker with the additional statement have just given, John Henry Harmon an honorable discharge but I want the world to know what he did while he’s in the service, reflecting on his character.

    David I. Shapiro:

    Well, Your Honor.

    Then of course we’d have a very interesting problem.

    We’d have the problem of whether or not the statement was actually within the scope of his authority and then if the statement for example was libelous —

    Felix Frankfurter:

    Well, if true would if — it wouldn’t be defamation.

    Your case really gets down to (Inaudible) of this man by not giving him an honorable discharge.

    David I. Shapiro:

    No.

    It’s a defaming not so much for the man but a defaming of his actual record of military service.

    Felix Frankfurter:

    — the law.

    Your suit is that this man, human beings are deprived of rights not documented.

    David I. Shapiro:

    That’s right, Your Honor.

    Now —

    Earl Warren:

    But do you — do you claim also, Mr. Shapiro, that having serve in the army he is in — if he served honorably and well that he’s entitled to the status of honorably discharge soldier of the United States Army.

    David I. Shapiro:

    That’s our position, Your Honor.

    Now —

    Felix Frankfurter:

    But there is more to find out whether that made an element of misconduct which (Inaudible) and the employer asked all about, and the employer would give that information, he would be protected by all the libel laws because it is relevant to telling the truth, the whole truth of what he (Inaudible) service.

    The question is, assuming he could be discharged for that conduct — of that action (Inaudible).

    Felix Frankfurter:

    But the government can’t tell why he was discharged.

    David I. Shapiro:

    That’s it, Your Honor.

    Felix Frankfurter:

    Is that your point?

    David I. Shapiro:

    That’s our point.

    Felix Frankfurter:

    They can’t — the Government can’t tell that they fired him for what would be a dishonorable conduct (Inaudible)

    David I. Shapiro:

    I — I understand —

    Felix Frankfurter:

    (Inaudible)

    David I. Shapiro:

    I see my time is up.

    I’d like to continue my argument.

    Earl Warren:

    Oh, yes, of course.