# Harmon v. Brucker/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Clark
United States Supreme Court
355 U.S. 579
Harmon v. Brucker
Argued: Jan. 14, 15, 1958. --- Decided: March 3, 1958
The Secretary of the Army, relying upon 10 U.S.C. § 652a (Act of June 4, 1920, § 1, Subch. II, 41 Stat. 809, as amended) and 38 U.S.C. § 693h, 38 U.S.C.A. § 693h (Act of June 22, 1944, 58 Stat. 286, as amended), and upon Department of Defense and Army Regulations deemed to be authorized by those statutes, discharged petitioners from the Army and issued to each of them a discharge certificate in form other than 'honorable.' In so doing, he took into account preinduction activities of petitioners rather than basing his action exclusively upon the record of their military service. After having exhausted available administrative remedies, petitioners separately brought these proceedings in the District Court seeking judgments declaring those determinations and actions of the Secretary to be void as in excess of his powers under the circumstances, and directing him to issue 'honorable' discharge certificates to them. Being of the view that it was without jurisdiction to consider the actions, the District Court dismissed them, 137 F.Supp. 475, and the Court of Appeals affirmed with one judge dissenting, 100 U.S.App.D.C. 190, 243 F.2d 613; 100 U.S.App.D.C. 256, 243 F.2d 834. We granted certiorari, 353 U.S. 956, 77 S.Ct. 863, 1 L.Ed.2d 908, and 354 U.S. 920, 77 S.Ct. 1383, 1 L.Ed.2d 1435.
The respective contentions made here may be summarized as follows:
(1) Petitioners contend (a) that the Secretary acted in excess of his powers, because the statutes referred to did not authorize, nor support Department of Defense and Army Regulations when taken to authorize, consideration of petitioners' preinduction activities in determining the type of discharges to be issued to them upon separation from the Army, and (b) that the action of respondent in issuing to them less than 'honorable' discharges, and the action of the District Court and of the Court of Appeals in refusing review for what they thought was lack of judicial power, deprived petitioners of due process under the Fifth Amendment, and of a judicial trial under the Sixth Amendment, of the Constitution;
(2) Respondent contends (a) that by 10 U.S.C. § 652a, Congress required that, upon separation from the Army, a former soldier be given 'a certificate of discharge, * * * in the manner prescribed by the Secretary of the Department of the Army * * *'; (b) that, inasmuch as all certificates of discharge are not required to be 'honorable' ones, he was authorized to, and did, prescribe various types of discharge certificates running the gamut from the accolade of 'Honorable discharge' to the odious 'Dishonorable discharge'; (c) that by 38 U.S.C. § 693h, 38 U.S.C.A. § 693h, Congress directed the establishment of an Army Review Board with power to review, upon its own motion or that of the former soldier, the type of discharge issued, and 'to change, correct, or modify any discharge or dismissal, and to issue a new discharge in accord with the facts presented to the board,' and prescribed that 'the findings thereof (shall) be final subject only to review by the Secretary of the Army'; (d) that the findings of the Board, made under those procedures so afforded to and availed of by petitioners, were final subject only to review by the Secretary of the Army; and (e) that, therefore, such administrative procedure is exclusive and the courts are without jurisdiction to review those findings.
In keeping with our duty to avoid deciding constitutional questions presented unless essential to proper disposition of a case, we look first to petitioners' nonconstitutional claim that respondent acted in excess of powers granted him by Congress. Generally, judicial relief is available to one who has been injured by an act of a government official which is in excess of his express or implied powers. American School of Magnetic Healing v. McAnnulty, 187 U.S. 94, 108, 23 S.Ct. 33, 38, 47 L.Ed. 90; Philadelphia Co. v. Stimson, 223 U.S. 605, 621-622, 32 S.Ct. 340, 345, 56 L.Ed. 570; Stark v. Wickard, 321 U.S. 288, 310, 64 S.Ct. 559, 571, 88 L.Ed. 733. The District Court had not only jurisdiction to determine its jurisdiction but also power to construe the statutes involved to determine whether the respondent did exceed his powers. If he did so, his actions would not constitute exercises of his administrative discretion, and, in such circumstances as those before us, judicial relief from this illegality would be available. Moreover, the claims presented in these cases may be entertained by the District Court because petitioners have alleged judicially cognizable injuries. Cf. Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 159, 160, 71 S.Ct. 624, 642, 95 L.Ed. 817, and see Army Regulation 615-360, par. 7.
This brings us to the merits. The Solicitor General conceded that if the District Court had jurisdiction to review respondent's determinations as to the discharges he issued these petitioners and if petitioners had standing to bring these suits, the action of respondent is not sustainable. On the basis of that concession and our consideration of the law and this record we conclude that the actions of the Secretary of the Army cannot be sustained in law. By § 652a, which provides that no person be discharged from military service 'without a certificate of discharge,' Congress granted to the Secretary of the Army authority to issue discharges. By § 693h it provided for review by the Army Review Board of the exercise of such authority. Surely these two provisions must be given an harmonious reading to the end that the basis on which the Secretary's action is reviewed is coterminous with the basis on which he is allowed to act. Section 693h expressly requires that the findings of the Army Review Board 'shall be based upon all available records of the (Army) relating to the person requesting such review * * *.' We think the word 'records,' as used in the statute, means records of military service, and that the statute, properly construed, means that the type of discharge to be issued is to be determined solely by the soldier's military record in the Army. An authoritative construction of the congressional grant of power is to be found in the regulations of the Department of the Army. Army Regulation 615-375, par. 2(b) states: 'The purpose of a discharge certificate is to record the separation of an individual from the military service and to specify the character of service rendered during the period covered by the discharge.' (Emphasis supplied.) Moreover, the Army's Regulation 615-360, par. 7 (which was in effect during the times here involved), further states: 'Because the type of discharge may significantly influence the individual's civilian rights and eligibility for benefits provided by law, it is essential that all pertinent factors be considered so that the type of discharge will reflect accurately the nature of service rendered. * * *' (Emphasis supplied.)
The judgments of the Court of Appeals are reversed and the cases are remanded to the District Court for the relief to which petitioners are entitled in the light of this opinion.
Reversed.
Mr. Justice CLARK (dissenting).

## Notes

* ↑ Now 10 U.S.C.A. §§ 3811, 8811.
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