AR 604-10 PDF
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Inasmuch as the charges against the plaintiffs have not yet been decided, or even heard, a showing of irreparable injury can obviously not be predicated upon them, for the charges may conceivably be held groundless.
Finally, it is argued that the failure to join the Secretary of the Army, at whose instance final action would be taken under ARis a failure to join an indispensable party, an incurable defect 604–10 the Secretary’s residence is in the District of Columbia.
I would not assume, and could not if I would, for the purposes of preliminary injunction, the existence of facts warranting the court’s intervention. It is furthermore not clear at this time that a mandatory act on the part of the defendant would be required, arr the ground that a restraint arr the defendant may well operate on his subordinates as his agents.
In support of this part of the motion to dismiss, an affidavit has been submitted by counsel, on information and belief, concerning the defendant’s lack of authority.
Plaintiff inductees in the United Arr Army have previously moved for a 64-10 injunction restraining the defendant from taking proceedings against at under regulation ARpending the outcome of their suit for a declaratory judgment concerning their discharge rights.
Yet to put a soldier in jeopardy of a less than honorable discharge for acts committed prior to induction and for acts which were not criminal is scarcely less offensive to our notions of rudimentary fairness. But it is contended that the procedure under ARin so far as it purports to authorize proceedings based upon conduct antedating induction, is not authorized and is illegal.
The motion for a preliminary injunction stands in an entirely different posture from the motion to dismiss under Rule 12 b 6.
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By the same token, from the facts before me, I cannot reach the conclusion of a likelihood of ultimate success in the action, a conclusion prerequisite to the granting of the injunction. The essential averments in the affidavit are not only without personal knowledge but they are largely conclusory in nature.
The defendant is being sued in his official capacity as Commander of the First Army, with headquarters in this district. There can be no doubt of the validity of that argument.
The field boards have apparently 6041-0 called by order of the plaintiffs’ Commanding Officer, the Commanding General at Fort Dix, New Jersey, not within this district.
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The termination of plaintiffs’ Army service with less than honorable discharges would so brand and stigmatize them, with consequences too obvious to require specification, as to make irreparable injury undeniable. Raby, 64-10 York City, of counsel, for defendant.
The distinction is urged that an injunction against the defendant would call for an affirmative act which he is powerless to perform. The defendant has cross-moved for dismissal under Fed.
Bernstein v. Herren, 136 F. Supp. 493 (S.D.N.Y. 1956)
The showing was, however, predicated upon the claim, which is conceded, that plaintiffs, having failed 604-0 complete a “Loyalty Certificate for Personnel of the Armed Forces”, form DD 98,  they cannot qualify for more than a general discharge under honorable conditions, under paragraph 17b 1 b of AR There are general statements in a memorandum about charges made against the plaintiffs, and there is also a conclusory statement that the plaintiffs are threatened with a discharge, no matter how any field board hearing might go, no better than a “general discharge under honorable circumstances”, on the ground that they refused to complete DD 98 forms “Loyalty Certificates for Personnel in the Armed Forces”.
It is alleged that such discharges are threatened solely on the basis of facts and occurrences existing prior to plaintiffs’ inductions, despite their satisfactory and honorable service. General Railway Signal Co. Provided, That said regulations shall not be 604-0 with the laws of the United States. An honorable discharge encompasses a 064-10 right, as well as civil rights and personal honor. But the facts on which the fear is based do not appear in the record by which I am bound to decide.
United States District Court S. As already indicated, it is not at this time clear that he lacks the necessary power. Plaintiffs, inductees now serving in the Army at Fort Dix, New Jersey, have sued for a declaratory judgment concerning their discharge rights, and have moved for a preliminary injunction restraining the defendant from taking proceedings against them under regulation AR July 29, Supplemental Opinion Plaintiff inductees in the United States Army have previously moved for a preliminary injunction restraining the defendant from taking proceedings against them under regulation ARpending the outcome of their suit for a declaratory judgment concerning their discharge rights.
Therefore, on the basis of the assumptions involved in a motion to dismiss under Rule 12 b 6604–10 the plaintiffs are being held to answer by the Army for their prior civilian conduct under the procedure of AR 60410, leading to the possible consequence of discharges less than honorable, I conclude that there is a clear violation of their rights rendering unnecessary the exhaustion of administrative remedies.
No testimony was offered, no affidavits were submitted and no proof of any fact was undertaken. It is certainly not contended that the Army could try a soldier for a crime alleged to have been committed prior to his entry upon service. Lieutenant General Thomas W. It is inconceivable to me that the Army would so terminate a soldier’s service on the sole basis of conduct occurring prior to induction. With this position, on the basis of the assumptions made, I am in agreement.
All that does appear is the fact that field board hearings have been scheduled to initiate the procedure whereby the feared result may occur. Thus, considering the motion as a “speaking motion” under Rule 12 b 12 Moore’s Federal Practice,2d ed.
Supplemental Opinion January 4, It is urged that it is the latter officer who should have been made the defendant.