a necessary prerequisite before 10 U.S.C.A. § 629 could be applied it would have been such simpler for it to say so than to enact the statute as it is written. By listing specifically the culpable conduct leading to time lost that the Army may require to be made up Congress indicated that the determination of time lost for purposes of extending enlistment terms under 10 U.S.C.A. § 629 was a task to be performed by military administrative rather than military judicial authorities.
There can be no violation of due process in providing for this administrative method of computing 'bad time'. Without deciding whether the due process clause applies to military administrative determination and, if it applies, to what extent,
it is plain that relator can make no complaint as long as he is given an opportunity to be heard in the event that he feels the computation is erroneous or that the absence was in fact not an unauthorized one. And ample opportunity is given for an aggrieved soldier to be heard. Code of Military Justice, 50 U.S.C.A. § 734, it is provided:
'Any member of the armed forces who believes himself wronged by his commanding officer, and, upon due application to such commander, is refused redress, may complain to any superior officer who shall forward the complaint to the officer exercising general court-martial jurisdiction over the officer against whom it is made. That officer shall examine into said complaint and take proper measures for redressing the wrong complained of; and he shall, as soon as possible, transmit to the Department concerned a true statement of such complaint, with the proceedings had thereon.' 50 U.S.C.A. 734.
Relator's particular contention is that the administrative authority computed the length of his unauthorized absence in ignorance of the true facts concerning his willingness to return to the Army during January 1951, and his consequent frustration in that purpose by the erroneous report from Fort Knox that he was 'not wanted'. Furthermore, he asserts that his good faith in believing that the Army had released him should be taken into consideration by the administrative authority. Since neither of these facts was sufficient to prevent his court-martial conviction for unauthorized absence it is difficult to see how they can rationally be expected to move an officer into diminishing the length of his 'bad time'. But the short answer to relator's argument is to point out that if these facts were not considered in computing the length of his 'bad time' it is a defect of his own making. He never took steps to put them before the administrative authority who calculated his 'bad time'. The proper mechanism for him to use to secure a recomputation of the time he must make up by an authority with these additional facts before him is Article 138. It is no violation of the fundamental fairness due process requires for relator to bear the burden of going forward once the Army's records make out a prima facie case of unauthorized absence.
Relator's final argument is that he was relieved from his obligation to serve by the Army when it, acting through the Federal Bureau of Investigation and the Reno police, told him he was 'not wanted'. Two theories are relied on in support of this argument: (1) that his release by the Reno police was actually a release from military custody which is binding on the Army and (2) that it is now estopped from asserting a contrary position.
Under 10 U.S.C.A. § 652a 'No enlisted person, lawfully inducted into the military service of the United States, shall be discharged from said service without a certificate of discharge, and no enlisted person shall be discharged from said service before his term of service has expired, escept in the manner prescribed by the Secretary of the Department of the Army, or by sentence of a general or special court-Martial.' Civilian police officers are authorized by 50 U.S.C.A. 562 to apprehend deserters from the Armed Forces of the United States and to deliver them into the custody of military officials. But this is as far as their authority goes. There is no authority in civilian police or the Federal Bureau of Investigation to act as an agency of the Army in the granting of discharges. Only a discharge could relieve relator of his obligations to the Army and it was beyond the power of the Army to authorize the Reno police to give him one.
Nor can the relator validly assert the theory that the Reno police had apparent authority to release him from his obligation to the Army, and that the Army will not now be heard to deny the existence of that authority. The facts in this case present nothing from which a reasonable inference can be drawn that the Army so authorized the Reno police. Such was not ordinary usage. See American Well Works v. Royal Indemnity Co., 109 N.J.L. 104, 108, 160 A. 560 (E. & A.1932). Indeed, the facts are only consistent with the hypothesis that the Army had made an error in notifying the Federal Bureau of Investigation and the Reno police that the relator was 'not wanted'. This is the inference that a reasonable man in relator's position would have made, and is quite probably the one he did make, for he admits that after being rejected by the Reno police he then requested the local Red Cross to transport him back to Fort Knox. Concededly he was prevented from reporting to the station where he belonged only by his own misconduct in unauthorizedly leaving there and by voluntarily depriving himself of the financial means to pay for his return transportation thereto.
The writ is discharged and the relator remanded to cusdoty.