is 10GTEK TRANSCEIVERS CO., LTD’ s On-Line Mall site to sell HPC Cable: SFP Cables, SFP+ Cables, QSFP Cables, MiniSAS Cables, XFP. Security information Derogatory information concerning loyalty and subversion ( AR –10 chapter 2) will be processed as set forth in that regulation. 4–3. 19(b) (July 29, ) provided that “AR applies” should be stamped on each derogatory discharge under its terms, indicating that the discharged was.
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An honorable discharge encompasses a property right, as well as civil rights and personal honor. It would seem basic, therefore, that a soldier has a right to an honorable discharge if his military record merits it and that he cannot be held to answer, in the consideration of his discharge, for matters extraneous to that record. There are general statements in a memorandum about charges made against the plaintiffs, and there is also a conclusory statement that the plaintiffs are threatened with a discharge, no matter how any field board hearing might go, no better than a “general discharge under honorable circumstances”, on the ground that they refused to complete DD 98 forms “Loyalty Certificates for Personnel in the Armed Forces”.
No testimony was offered, no affidavits were submitted and no proof of any fact was undertaken. The essential averments in the affidavit are not only without personal knowledge but they are largely conclusory in nature.
Therefore, on the basis of the assumptions involved in a motion to dismiss under Rule 12 b 6that the plaintiffs are being held to answer by the Army for their prior civilian conduct under the procedure of ARleading to the possible consequence of discharges less than honorable, I conclude that there is a clear violation of their rights rendering unnecessary the exhaustion of administrative remedies.
Provided, That said regulations shall not be inconsistent with the laws of the United States. A procedure which postulates pre-induction civilian conduct as the basis for a less than honorable discharge could not be countenanced and it must be concluded that such a procedure is legislatively unauthorized.
The affidavit submitted, however, was in such form as to be of little or no help in such an analysis. It is alleged that such discharges are threatened solely on the basis of facts and occurrences existing prior to plaintiffs’ inductions, despite their satisfactory and honorable service.
As already indicated, it is not at this time clear that he lacks the necessary power. The showing was, however, predicated upon the claim, which is conceded, that plaintiffs, having failed to complete a “Loyalty Certificate for Personnel of the Armed Forces”, form DD 98,  they cannot qualify for more than a general discharge under honorable conditions, under paragraph 17b 1 b of AR General Railway Signal Co.
It is familiar and elementary law that “the granting of a preliminary injunction is an exercise of a very far-reaching power, never to be indulged in except in a case clearly demanding it.
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The kindest view I can take of the matter is that plaintiffs’ counsel have labored under a misapprehension about admissions or concessions by the defendant. United States District Court S. The defendant is being sued in his official capacity as Commander of the First Army, with headquarters in this district.
It is urged that it is the latter officer who should have been made the defendant. And it is the claim of the plaintiffs that they have a statutory right to be considered for discharge strictly on the basis of the merits of their military service, without being put in jeopardy of a less than honorable discharge on the basis of anything extraneous to that service.
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And the plaintiffs have made no showing whatever, and have attempted to make none, that such a discharge qualifies as the kind, described in the previous memorandum, that would brand and stigmatize a recipient so as to cause him irreparable injury. Certainly, no showing has been made to afford me a reasonable ground to believe that the Army will, if no injunction is granted, terminate plaintiffs’ service with less than honorable discharges on the basis merely of their lawful civilian conduct.
There can be no doubt of the validity of that argument. The motion for a preliminary injunction stands in an entirely different posture from the motion to dismiss under Rule 12 b 6. It is inconceivable to me that the Army would so terminate a soldier’s service on the sole basis of conduct occurring prior to induction.
By the same token, from the facts before me, I cannot reach the conclusion of a likelihood of ultimate success in the action, a conclusion prerequisite to the granting of the injunction. United States, U. I do not doubt that plaintiffs genuinely fear the imminence of such injury. With this position, on the basis of the assumptions made, I am in agreement.
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Legislation on the subject of discharge  leaves the matter largely to be dealt with by regulation, and there is 60-410 contention that the Secretary of the Army may not establish appropriate procedures. But the facts on which the fear is based do not appear in the record by which I am bound to decide.
The field boards have apparently been a by order of the plaintiffs’ Commanding Officer, the Commanding General at Fort Dix, New Jersey, not within this district. Plaintiffs, inductees now serving in the Army at Fort Dix, New Jersey, have sued for a declaratory judgment concerning their discharge rights, and have moved for a preliminary injunction restraining the defendant from taking proceedings against them under regulation AR July 29, It is certainly not contended that the Army could try a soldier for a crime alleged to have been committed prior to his entry upon service.
Plaintiff inductees in the United States Army have previously moved for a preliminary injunction restraining the 064-10 from taking proceedings against them under regulation ARpending the outcome of their suit for a declaratory judgment concerning their discharge rights. Thus, considering the motion as a “speaking motion” under Rule 12 b 12 Moore’s Federal Practice,2d ed.
The issue, however, to which it is addressed is not the determination of the security status of an individual soldier, nor even his retention in the army, but the infliction of harm by means of a discharge without honor in the case of one who not only does not merit such a discharge on the basis of his actual service, but who was inducted with knowledge on the part of the Army, actual or constructive, of his civilian background. An affidavit was submitted, at the court’s request, purporting to at forth the relative times of the claims of privilege and of inductions.
The cross-motion to dismiss will be denied. The defendant has cross-moved for dismissal under Fed. Raby, New York City, of counsel, for defendant. In support of this part of the motion to dismiss, an affidavit has been submitted by counsel, on information and belief, concerning the defendant’s lack of authority.
But it is contended that the procedure under ARin so far as it purports to authorize proceedings based upon conduct antedating induction, is not authorized and is illegal.
If the claim of privilege was previous to or simultaneous with induction, then any logical inferences drawn must certainly be relevant only to civilian conduct.
In a memorandum dated November 18,the court held the motion in abeyance pending the making of a showing by plaintiffs which they had not attempted of the imminence of irreparable injury. The possible unavailability of judicial review, however, is not a justification for the failure to exhaust administrative remedies.
All that does appear is the fact that field board hearings have been scheduled to initiate the procedure whereby the ad result may occur. The motion to dismiss the complaint on the ground that it fails to state a claim upon which relief can be granted, in that plaintiffs have failed to exhaust their administrative remedies, stands in the posture of admitting the well-pleaded material allegations of the complaint.
Accordingly, in the absence of a proper showing of irreparable injury by the plaintiffs, the motion for a preliminary injunction will be denied. Ad the issue in this light, the defendant for the first time argues, with the citation of substantial authority, that the court is nevertheless without jurisdiction to review a discharge after its issuance or to enjoin the issuance of a discharge.
Consequently, for ra purposes of 6044-10 motion to dismiss under Rule 12 b 6the following facts are deemed admitted: Supplemental Opinion Plaintiff inductees in the United States Army have previously moved for a preliminary injunction restraining the defendant from taking proceedings against them under xr ARpending the outcome of their suit for a declaratory judgment concerning their discharge rights.
The purpose to be served by such proof would be to determine the effective time of inferences which could be drawn from the claim of privilege in refusing to complete the form leaving aside entirely the issue of the propriety of drawing any inferences at all.
The distinction is urged that an injunction 6041-0 the defendant would call for an affirmative act which he is powerless to perform. And it is further alleged that so much of the regulation as deals with termination of service on the basis of acts prior to induction is invalid.
If that view has any substance, then the plaintiffs have not had their day in court on their motion, an eventuality distasteful to the pursuit of justice.