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BANDOY v. COMMANDANT OF THE FOURTH NAVAL DIST.

June 20, 1980

Ronnie Javier BANDOY
v.
COMMANDANT OF the FOURTH NAVAL DISTRICT and The Secretary of the Navy



The opinion of the court was delivered by: SHAPIRO

MEMORANDUM

I. INTRODUCTION

 Plaintiff is a member of the United States Navy who seeks a writ of habeas corpus, pursuant to 28 U.S.C. ยง 2241(a), (c)(1) and (c)(2), releasing him from military service on the ground that a request for a hardship discharge was unlawfully denied. Specifically, plaintiff contends that the Navy's *fn1" denial of his request for a hardship discharge was unlawful and arbitrary because there was no basis in fact for such denial, and it was in violation of the due process clause of the Fifth Amendment having been denied without the promulgation of reasons. Now before the Court are the parties' cross motions for summary judgment. The motions for summary judgment will be denied and plaintiff's application for a hardship discharge remanded to the Navy for further proceedings.

 A motion for summary judgment may be properly granted only upon a clear showing that there is no genuine issue of any material fact and that the moving party is entitled to a judgment as a matter of law. Ely v. Hall's Motor Transit Co., 590 F.2d 62, 66 (3d Cir. 1978); Erie County Geriatric Center v. Local No. 2666, American Federation of State, County and Municipal Employees, 464 F. Supp. 561, 563 (W.D.Pa.1978). On the basis of the uncontroverted pleadings and affidavits, the record may be briefly summarized as follows:

 Petitioner Ronnie Javier Bandoy voluntarily enlisted in the United States Navy on March 27, 1970, and reenlisted on March 22, 1974, for a four-year term; ten months later he married Teresita Garcia Bandoy. Petitioner was subsequently convicted on two separate occasions of absence without leave; the first absence took place from April 5, 1976 to November 30, 1976 and a second absence occurred from February 18, 1977 to June 10, 1977. Bandoy's second conviction resulted in a four-month jail sentence at the Philadelphia Naval Base. Petitioner explained to the second court-martial panel that his actions were precipitated by his wife's negative reaction to their long separations. He maintained that his wife was suffering severe physical and emotional distress which necessitated his presence. The court-martial panel recommended that petitioner be given an administrative discharge after serving his jail sentence. However, upon his release from confinement on October 31, 1977, Bandoy was assigned to active duty in Spain.

 Bandoy requested, and was granted, leave to file a hardship discharge request prior to reporting to Spain. On November 23, 1977, petitioner filed such request with the Philadelphia Naval Support Activity Command pursuant to Article 3850240 of the Bureau of Naval Personnel Manual (April, 1977) (BUPERSMAN). *fn2" The papers in support of petitioner's request included a letter from petitioner, his wife, her sister, her attending physician, and a psychiatrist to establish Teresita Garcia Bandoy's severe emotional depression, peptic ulcer, and suicidal tendencies allegedly caused by Bandoy's prolonged absences while on duty.

 The request for hardship discharge was endorsed by the Commanding Officer of the Philadelphia Naval Support Activity Command and forwarded to the Chief of Naval Personnel with the recommendation that the request be approved. On December 13, 1977, petitioner received the following message:

 
A. SNM'S HARDSHIP DISCH REQ OF 23 NOV 77 W/FWD END
 
B. BUPERSMAN 3850240
 
1. REGRET REF A DISAPPROVED. REQ DID NOT MEET REQUIRED STANDARDS FOR SEP OUTLINED IN REF B.
 
2. IF HARDSHIP BECOMES SIGNIFICANTLY WORSE, SNM MAY SUBMIT ANOTHER REQ FOR SEP AT THAT TIME. ANY SUCH REQ MUST BE COMPLETELY DOCUMENTED AS SPECIFIED IN REF B.

 After this notification, petitioner failed to report to his assignment in Spain and was declared absent without leave by the Navy. Bandoy voluntarily returned to the Philadelphia Naval Base on November 25, 1979, and brought the instant action.

 III. APPLICATION OF LAW

 Petitioner contends that:

 1) the Navy's denial was arbitrary and capricious in that there was no basis in fact for such denial; and

 Federal district courts have jurisdiction to review administrative hardship discharge claims for violation of an individual's due process rights. Harris v. Middendorf, 4 MLR 2456 (S.D.Ca.1976), reconsidered 4 MLR 2608 (S.D.Ca.1976); Rickson v. Ward, 359 F. Supp. 328 (S.D.Ca.1973); Townley v. Resor, 323 F. Supp. 567 (N.D.Ca.1970); Jenkins v. Commandant, First Naval District, 303 F. Supp. 1150 (D.Ma.1969). See, Santos v. Franklin, 493 F. Supp. 847, (E.D.Pa.1980); Hickey v. Commandant of the Fourth Naval District, 461 F. Supp. 1085 (E.D.Pa.1978). In Rickson v. Ward, supra, a seaman requested a hardship discharge pursuant to BUPERSMAN 3850240 and subsequently sought habeas corpus relief on the ground that the Navy's denial of the request was unlawful. The court, recognizing that the scope of review of discretionary military decisions is extremely narrow, stated that once a petitioner has established a prima facie case for hardship discharge, the military must provide a detailed factual explanation for its denial of such application. This "reasons requirement" is necessary to preserve a seaman's due process right to subsequent judicial review of the Navy's decision; otherwise meaningful review would be an impossibility. However, where the petitioner failed to establish a prima facie hardship claim, as the court held in Rickson, the military will not be required to provide reasons for the denial.

 The requirement that reasons must be provided by the military when denying a prima facie request for hardship discharge in order to preserve petitioner's due process right to subsequent meaningful judicial review is supported by Townley v. Resor, supra. The petitioner, a member of the United States Army, filed a request for hardship discharge on the ground that he was the sole support of his elderly grandmother and was required to care for her in person. Id. at 568. The Army, denying the request, stated only that it did not satisfy Army regulations. Id. The court recognized that discretionary military decisions may only be reviewed for arbitrariness or capriciousness. But before such review on the merits can be obtained, there must be a record to provide a basis for review:

 
Implicit in this (right of district courts to review military decisions) is the understanding that the court must have something to review. Once petitioner has stated a prima facie case for a discharge, the Army must explain, in factual terms, why it is denying the application. (Citations omitted) Without such reasons, it is impossible to determine whether or not the decision was arbitrary and capricious, and judicial review becomes meaningless.

 Id. at 569. The court concluded that petitioner had established a prima facie case and therefore the Army had an obligation to provide reasons for its denial, for "(without) these reasons, meaningful judicial review is a nullity and a measure of due process is similarly removed from the system." Id. Cf., Jenkins v. Commandant, First Naval District, supra, (where petitioner established a strong case for hardship discharge and no reasons were provided for denial, the Marine Corps' decision was not supported by substantial evidence and was thus without basis in fact).

 Therefore, the threshold issue is whether petitioner has established a prima facie case for discharge. In order to establish such a case, BUPERSMAN 3850240 (1977) requires that petitioner show:

 
1) A servere (sic) hardship, not normally encountered and resolved by other members of the naval service, exists.
 
2) The hardship affects the service member's immediate family. . . .
 
4) The hardship has occured (sic) or has been severely aggravated since ...

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