Harmon v. Brucker/Dissent Clark

Mr. Justice CLARK (dissenting).

I would affirm these cases on the basis of Judge Prettyman's opinion in the Court of Appeals. Harmon v. Brucker, 100 U.S.App.D.C. 190, 243 F.2d 613. Since this Court does not reach the constitutional claims considered and rejected by Judge Prettyman, however, it is appropriate to add a word about the Court's basis for asserting jurisdiction and reversing on the merits, namely, the finding that the action of the Secretary of the Army was in excess of his statutory authority.

At the outset it is well to state what Harmon and Abramowitz, petitioners in these cases, do not contend. They do not contest the decision that their retention in the Army was inconsistent with national security, nor do they claim that the procedures adopted violated their legally protected rights. They concede the Army 'an absolute right to discharge,' but object to issuance of discharge certificates that reflect the determinations underlying the fact of their discharges, insisting that the Secretary be required to issue them honorable discharges. The controversy thus is confined to the type of discharge certificate that may be issued to servicemen discharged because of preinduction activity deemed to render them undesirable security risks.

Throughout our history the function of granting discharge certificates has been entrusted by the Congress to the President and, through him, to the respective Secretaries of the Armed Forces. At no time until today have the courts interfered in the exercise of this military function. The lack of any judicial review is evidenced by the fact that for over 70 years Congress itself reviewed military discharges and frequently enacted private bills directing the appropriate Secretary to correct the type of discharge certificate given. By legislation in 1944 and 1946, Congress authorized creation of administrative boards to which it transferred the review of military discharges in an effort to conserve its own time. That legislation makes no provision for judicial review; on the contrary, the 1944 Act expressly states that the findings of the Army Discharge Review Board shall be 'final subject only to review by the Secretary of (the Army),' and the 1946 Act, as amended in 1951, expressly provides that the determination of the Board to Correct Military Records shall be 'final and conclusive on all officers of the Government except when procured by means of fraud.' When this legislative expression of finality is viewed in context with the uninterrupted history of congressional review, culminated by Congress' transfer of the review function to administrative bodies, it cannot be said, in the absence of specific legislative grant, that Congress intended to permit judicial review. The Court avoids these considerations by positing jurisdiction to review simply on its determination that the Secretary's action exceeded his statutory authority.

In reaching this exceptional position, the Court construes § 693h of the 1944 Act, supra, which provides that review of discharges shall be based on 'all available records' of the department involved, to include not 'all available records' of the Army concerning petitioners, but merely those 'solely (concerned with) the soldier's military record in the Army.' (Emphasis added.) This limitation of the clear meaning of the words used by the Congress-so that 'all' is deemed to mean 'some'-is lacking of any justification.

The construction adopted does enable the Court to by-pass the constitutional questions raised by petitioners. It is true that we avoid decision of constitutional questions 'unless essential to proper disposition of a case.' But as I see it, this rule should never compel a transparently artificial construction of a statute. The Court's interpretation here of § 693h must leave both the President and the Congress in a quandary as to the solution of an important problem involving the security of our country.

It is to be regretted that the Justice Department and the Army are at loggerheads over the proper disposition of these cases on the merits. However, the frank confession thereof by the Solicitor General is hardly sufficient reason to abandon our long-established policy of no review in such matters. If injustice has been done I have confidence in the Congress or the President to correct it. The proper recourse of petitioners is in that direction.

Judge Prettyman aptly stated: 'Surely the President may apply to military personnel the same program and policies as to security and loyalty which he applies to civilian personnel * *  *. (I)f (Harmon) can be discharged as a security risk, the Army can determine whether he is or is not a security risk. And in that determination surely no data is more relevant and material than are his (preinduction) habits, activities and associations.' 100 U.S.App.D.C. at page 197, 243 F.2d at page 620. The same type of data is commonly accepted among civilian agencies as relevant to the security screening of its employees. Those agencies also issue discharges in the form of severance papers based upon, and frequently reciting security grounds. Such papers reflect the true condition upon which the discharge is made. It seems incongruous to me that the military services should not be able to do as much. I would not require the Secretary to issue a discharge certificate which on its face falsifies the real grounds for its issuance.