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10/25/72 Raymond E. Robinson, v. Stanley R. Resor Et Al.

October 25, 1972




Fahy, Senior Circuit Judge, and Tamm and Wilkey, Circuit Judges.




This is an action brought by appellant Robinson to set aside an Army discharge "under other than honorable conditions" and to recover for lost earnings for the term of enlistment. The District Court granted defendant appellees' cross-motion for summary judgment on the ground "that the Army Discharge Review Board decision is fully supported by the Board's record and is in no way arbitrary or capricious." We disagree. I. History of the Case

On 24 June 1955 plaintiff Robinson received from the United States Army a Discharge Certificate (under other than honorable conditions). Since that time he has made repeated efforts before the appropriate military boards to have this set aside in favor of an honorable discharge. *fn1 In September 1966 plaintiff instituted the present litigation in the District Court, which resulted in an order remanding the case to the Department of the Army for further administrative proceedings before the Army Discharge Review Board, before whom plaintiff had twice filed applications for changing the characterization of his discharge. After a hearing, the Board entered findings and conclusions, and for the third time denied plaintiff's application. After motions for summary judgment by both parties, the District Court sustained the Army Discharge Review Board's decision. II. Facts

The following summary of the relevant facts is taken exclusively from the findings of the Board and from uncontradicted testimony consistent with the case as presented by both sides on this proceeding to review the Board's decision. We do not here overturn any of the Board's findings of fact. Rather, we find their conclusion arbitrary and capricious. The necessity for our reference to facts which are uncontradicted by both sides, but not the subject of findings by the Board merely illustrates the unacceptably narrow focus of the Board's inquiry -- which produced the inequitable result requiring reversal here.

In March 1955, Raymond E. Robinson was a Chief Warrant Officer in the Regular Army, having reached this rank from the grade of Private at the end of more than ten years' service. As a member of the Corps of Engineers, Robinson had served in Korea, Germany, and in the United States. He had been cited by Lieutenant General Bruce Clarke, and other of his commanding officers, for outstanding work. *fn2

Robinson was assigned to Company C, 80th Engineer Battalion at Fort Bragg, North Carolina. Not too far away was his home in Knoxville, Tennessee, where his wife operated two motels and cared for their two minor children. During Robinson's overseas service, his wife had become ill. The illness continued after his return to the United States, and she required frequent hospitalization.

Confronted with these problems, in early March 1955 Robinson applied for an honorable discharge. This request was not forwarded up the chain of command by appellant's commanding officer, apparently for the reason that, no matter how grave Robinson's personal hardships were, the commanding officer valued his services too highly to have him released. *fn3 This action was definitely contrary to Army Regulation 635-120 (6), and had a discernible influence on the further unfortunate course of Robinson's Army career.

In late March, Robinson's wife was entering the hospital for surgery. This necessitated someone to operate the two Knoxville motels and to take care of the two minor children. Robinson requested a leave and was granted two days beginning 24 March 1955. While in Knoxville, Robinson was unable to arrange for the management of the motels and the care of the children; hence before the expiration of his leave, through the American Red Cross on the recommendation of his wife's attending physician, he attempted to secure an extension. He was granted five days -- not sufficient time for him to take care of his affairs.

Overwhelmed by the problems of his wife in the hospital, the two minor children, and the operation of two motels, Robinson made the difficult choice and did not return to Army duty until he had set his private affairs somewhat in order. He was thus wilfully and knowingly absent without leave from 1 April to 21 April 1955.

During this period he did return to Fort Bragg. On 15 April, he appeared at the disbursing office and received a payment of $100.00. While this transaction was not made the subject of findings by the Army Discharge Review Board, there is absolutely no evidence in the record to show that either Robinson or the finance personnel were aware that drawing these funds was in any way improper. On 22 April when Robinson was advised after his return that it was against regulations to draw funds while in an AWOL status, he immediately repaid the $100.00.

On 21 April Robinson returned to Fort Bragg voluntarily. He was immediately placed under restrictions in a "secured room," and handed general court-martial charges for (1) being absent without leave for 20 days, (2) larceny of $100.00 in Government funds on 15 April, and (3) making a false and fraudulent claim for this $100.00 in payment for services during the period he had been absent without leave. An investigation of these charges was commenced on 23 April, and counsel, in the person of First Lieutenant O. B. Crowell, was appointed on Robinson's behalf.

The mental strain resulting from the illness and hospitalization of Robinson's wife, his business and financial problems, and the culminating blow of these charges, caused Robinson to have a mental and nervous collapse requiring hospitalization from 24 April to 5 May. During the time in the hospital, he was given psychiatric care. In a report filed on 5 May 1955, 1st Lt. Lloyd J. Paul, an Army psychiatrist, concluded that Robinson's hospitalization had been produced by his having suffered "a dissociative-like state, recurrent, with paranoid features, largely as a result of the stress of impending court-martial action, sickness in the immediate family, and the sudden drying out ...

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