Evening star. [volume] (Washington, D.C.) 1854-1972, 1957-01-31
Soldier sPast
Upheld as Basis
For Discharge
BY HOWARD L. DUTKIN

The Army can consider a SOL
dier's pre-induction activities in
determining the type of dis
charge to be granted even though
the service record is excellent
the United States Court of Ap-
peals held today in a split two
to-one opinion.
In essence, the court ruled
that the type of discharge is
sued is solely within the prov
ince Of the Army as long as ad-
ministrative requirements are
met.
The ruling upheld the issuance
of a general discharge under
honorable conditions" given in
1854 to former Pvt. John H. Har-
mon III of New York.
Mr.. Harmon, a Bucknell Uni
Iversity graduate. originally was
given an undesirable discharge
as a security risk. Later the
discharge was changed to a
general" one. a type of lesser
merit than an honorable dis
charge.
Communist Ties Charged
The Army's action followed
charges that, before induction
Mr.. Harmon had had Communist
affiliations. He also was accused
of writing. while in the Army
two letters soliciting funds fol
Smith Act defendants.
Mr.. Harmon denied he ever
was a Communist or had en-
gagged in subversive activities
His service record was excellent
except for a short time fol-
lowing the charges, when it was
marked unknown.
He sued in United States Dis
trict Court to have his discharge
changed TO an honorable one
bat he lost that move.
Today the appellate court. in
an opinion written by Judge E
Barrett Prettyman which was
concurred in by Judge John A
IDanaher, upheld the lower
courts dismissal of the suit
Judge David L. Bazelon dis
scented.
Army Decision Final
The majority opinion declared
that mo statute directs or au-
Ithorizes judicial review of Army
discharges. Indeed, the statute
provides that decisions of the
Army boards shall be final"
The opinion declared that Mr.
Harmon's argument must rest
on Constitutional grounds such
as that he was denied due pro-
cess of law.
Along this line the court held
that since Mr.. Harmon was ac-
corded all the rights granted
under military law he did not
receive due process.
The consideration of pre-in-
Iduction activity was not frivol-
Gus :. it was based upon
reasonable grounds" the opinion
stated. Activity in the Com
munist movement involves par
ticipation in a conspiracy dam
gerous to our national security
Surely the Army can not be COM
PEELED to retain a security
risk. :"
Past Held Relevant
In determining whether one is
"a security risk, the court held
-. no date is more relevant
T. than are his past habits, ac-
tivities and associations"
In his dissent, Judge Bazelon
declared that the District Court
did have jurisdiction over the
case and should not hav, thrown
it out on that ground.
The issue raised, Judge Baze-
Ion said whether appellee may
withhold an honorable discharge
from soldier whose conduct and
efficiency ratings have never been
less than excellent, even assum-
ing the correctness of all the in
formation appellee relies upon
is one of law and as such is
within the jurisdiction of the
District Court.
The Government was repre-
sented on appeal by Justice De-
partment attorney Donald B.
MacGuineas. Mr.. Harmon was
represented by attorneys David l.
Shapiro and James H. Heller.