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10 USCS § 12681

UNITED STATES CODE SERVICE

TITLE 10. ARMED FORCES
SUBTITLE E. RESERVE COMPONENTS
PART II. PERSONNEL GENERALLY
CHAPTER 1221. SEPARATION

10 USCS § 12681 (2004)

§ 12681. Reserves: discharge authority
CROSS REFERENCES
Discharge of members not physically qualified, 10 USCS § 12644.

RESEARCH GUIDE


Annotations:
Judicial review of military action with respect to type of discharge given member of Armed Forces. 92 ALR Fed 333.

INTERPRETIVE NOTES AND DECISIONS


1. Discretion of military
2. Property right in employment
3. Requirements for initiating discharge process
4. Right to trial or hearing upon discharge
5. Permissible grounds for discharge
6. Statement of reasons
7. Role and power of court

1. Discretion of military
Determination whether it is practicable and equitable under facts and circumstances of case to discharge conscientious objector, once enlisted or legally inducted into armed forces, is ultimately vested by statute, directive and regulation within discretion of military itself. United States ex rel. United States ex rel. O'Hare v Eichstaedt (1967, ND Cal) 285 F Supp 476.
Pursuant to Act Oct. 23, 1992, P.L. 102-484, Div D, Title XLIV, Subtitle B, § 4416, 106 Stat. 2712 (which appears as 10 USCS § 12681 note) and implementing regulations, if member's involuntary separation from select reserve was based on years of service, and not on reorganization, member's benefit is limited to one year. DOHA Case No. 00101617 (12/12/00).

2. Property right in employment
Since former 10 USCS § 1162 explicitly provided that reserve commissioned officer had no vested right to continue in employment of United States Armed Forces, officer in question had no property right in continued employment with Air Force. Sims v Fox (1974, CA5 Ga) 505 F2d 857, cert den (1975) 421 US 1011, 44 L Ed 2d 678, 95 S Ct 2415.
Since reservists may be discharged at pleasure of President, they do not have property right in their commissions. Carter v United States (1975) 206 Ct Cl 61, 509 F2d 1150, reh den (1975) 207 Ct Cl 316, 518 F2d 1199, cert den (1976) 423 US 1076, 47 L Ed 2d 86, 96 S Ct 861, reh den (1976) 424 US 950, 47 L Ed 2d 356, 96 S Ct 1423.
Reservist can show no constitutionally protected property right to continued service where regulations prescribe that Army reservist may be discharged at any time; neither can reservist claim deprivation of due process liberty interest where discharge was honorable and there was no public disclosure of reasons for discharge. Ben Shalom v Secretary of Army (1980, ED Wis) 489 F Supp 964, 22 BNA FEP Cas 1396.
Reserve commissioned officer dropped from rolls pursuant to Army rule after being convicted in federal court of criminal offense and sentenced to federal correctional institution, was not denied due process, since officer had no property interest in continued military status, neither did nondisciplinary administrative action of dropping officer from rolls, with no stigma attached, deprive him of liberty interest, neither was his life endangered by removal from rolls. Helmich v Nibert (1982, DC Md) 543 F Supp 725, affd without op (1982, CA4 Md) 696 F2d 990.

3. Requirements for initiating discharge process
Letter of army reservist sent to appropriate army authorities adverting to crisis in conscience and requesting requisite forms to apply for discharge falls far short of formal application army regulations require in order to initiate discharge process. Earls v Resor (1971, CA2 NY) 451 F2d 1126.

4. Right to trial or hearing upon discharge
Regular air force officer was entitled to "fair and impartial" hearing on separation under 10 USCS § 8792, but there was no similar provision for reserve officers in former 10 USCS §§ 1162, 1163; however, Air Force Regulation 36-2, applying to both regular and reserve officers, guaranteed "fair and impartial" hearing, and United States Court of Appeals had jurisdiction of action seeking declaration that discharge of reserve officer was illegal because hearing guaranteed by regulations was denied. Denton v Secretary of Air Force (1973, CA9 Cal) 483 F2d 21, cert den (1974) 414 US 1146, 39 L Ed 2d 102, 94 S Ct 900.
Air force action in discharging reserve commissioned officer on ground of sexual deviancy without pre-discharge hearing does not violate officer's due process guarantees. Sims v Fox (1974, CA5 Ga) 505 F2d 857, cert den (1975) 421 US 1011, 44 L Ed 2d 678, 95 S Ct 2415.
Due process was not violated where reserve air force officer was honorably discharged from service after he expressed to his superiors apprehensions concerning flying in combat and requested assignment to ground duties notwithstanding fact that under applicable regulations such officer did not receive hearing in person, and that his burden of proof was to establish, against charges made, that he should be retained in service. Ampleman v Schlesinger (1976, CA8 Mo) 534 F2d 825.
Plaintiff, Reserve officer honorably discharged by Army for academic deficiencies, was not denied due process where Army gave plaintiff notice, adversary-type hearing, appointed counsel, and opportunity to question witnesses, respond to evidence, and to present evidence, character witnesses and extenuating circumstances. Woodard v Marsh (1981, CA5 Tex) 658 F2d 989, cert den (1982) 455 US 1022, 72 L Ed 2d 141, 102 S Ct 1721.
A probationary officer had no right to a court-martial or Board of Inquiry after being informed that he was being dismissed from the service with a discharge under other than honorable conditions because of homosexual activities. Courtney v Secretary of Air Force (1967, CD Cal) 267 F Supp 305.

5. Permissible grounds for discharge
Navy officer could not be administratively discharged without regard to his guilt or innocence of alleged crime, sodomy, under former 10 USCS § 1162(a), since it would have forced navy to improperly assume officer was guilty, and administrative discharge was not available if officer involved happened to be member of regular military force as opposed to being reservist. Silvero v Chief of Naval Air Basic Training (1970, CA5 Fla) 428 F2d 1009.
Discharge of reservist as unsuitable for service, because reservist evidences homosexual behavior or interest, but is without overt homosexual acts, is violation of First Amendment right to personal privacy and Fifth Amendment substantive due process. Ben Shalom v Secretary of Army (1980, ED Wis) 489 F Supp 964, 22 BNA FEP Cas 1396.

6. Statement of reasons
Even though initial denial by Marine Corps of reservist's application for discharge on conscientious objector grounds was defective for failure to assign reason for such action, it does not follow that reservist's application for discharge must necessarily be granted, as proper procedure would be to remand proceedings to service for reprocessing and for compliance with requirement of statement of reasons. United States ex rel. Coates v Laird (1974, CA4 NC) 494 F2d 709.

7. Role and power of court
Court of Appeals is empowered to determine whether officer in Army Reserve had his procedural rights violated by army's failure to follow pertinent regulations and statutes in regard to his application for discharge as conscientious objector. Earls v Resor (1971, CA2 NY) 451 F2d 1126.
Regular air force officer was entitled to "fair and impartial" hearing on separation under 10 USCS § 8792, but there was no similar provision for reserve officers in former 10 USCS §§ 1162, 1163; however, Air Force Regulation 36-2, applying to both regular and reserve officers, guaranteed "fair and impartial" hearing, and United States Court of Appeals had jurisdiction of action seeking declaration that discharge of reserve officer was illegal because hearing guaranteed by regulations was denied. Denton v Secretary of Air Force (1973, CA9 Cal) 483 F2d 21, cert den (1974) 414 US 1146, 39 L Ed 2d 102, 94 S Ct 900. Although courts are extremely reluctant to interfere with military's internal affairs, particularly those involving personnel changes, courts will review without hesitation cases where it is alleged that military violated Constitution, statutes or its own regulations; mandamus for reinstatement is appropriate remedy where reservist's discharge is found to be unconstitutional. Ben Shalom v Secretary of Army (1980, ED Wis) 489 F Supp 964, 22 BNA FEP Cas 1396.

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[Stevie]

[Hondo]

[Tom Poole]

[dcornutt]

The Navy/Marine butt dance:

The Butt dance invovles a series of gyrations..of protruding the butt and waving it around like a flag. In navy parlance, it's considered especially celebratory when it's done by someone who has a protruding navy gut..rolled out...as it accentuates the posterior region and a skinny tight butt. (as that's usually the only thing that remains high and tight once your life goes "at ease")

The actual steps to the dance are somewhat improvised...but invovles a too and fro motion...combined sometimes with a circular rotation combined with steps....if it's a particularly celebratory event.

It's called in other parlance...the "butt flag" or a "butt salute".
Hope that helps.

[stylin19]

This was just pointed out to me....
The article citing Carter's EO 4483 should have cited
Presidential Proclimation 4483 (signed by Carter)


"Proclamation 4483--Granting pardon for violations of the Selective Service Act, August 4, 1964, to March 28, 1973

Source: The provisions of Proclamation 4483 of Jan. 21, 1977, appear at 42 FR 4391, 3 CFR, 1977 Comp., p. 4, unless otherwise noted.

Acting pursuant to the grant of authority in Article II, Section 2, of the Constitution of the United States, I, Jimmy Carter, President of the United States, do hereby grant a full, complete and unconditional pardon to: (1) all persons who may have committed any offense between August 4, 1964 and March 28, 1973 in violation of the Military Selective Service Act or any rule or regulation promulgated thereunder; and (2) all persons heretofore convicted, irrespective of the date of conviction, of any offense committed between August 4, 1964 and March 28, 1973 in violation of the Military Selective Service Act, or any rule or regulation promulgated thereunder, restoring to them full political, civil and other rights.

This pardon does not apply to the following who are specifically excluded therefrom:
(1) All persons convicted of or who may have committed any offense in violation of the Military Selective Service Act, or any rule or regulation promulgated thereunder, involving force or violence; and
(2) All persons convicted of or who may have committed any offense in violation of the Military Selective Service Act, or any rule or regulation promulgated thereunder, in connection with duties or responsibilities arising out of employment as agents, officers or employees of the Military Selective Service system.

IN WITNESS WHEREOF, I have hereunto set my hand this 21st day of January, in the year of our Lord nineteen hundred and seventy-seven, and of the Independence of the United States of America the two hundred and first."
_________________
U.S.M.C. - 1969-1971
RVN- 1970-1971

[kimberly]

S










Kimberly

[gulf1609]

Posted this on another thread but maybe someone here knows these men. I just ran across this and did not know if these might be new sources.
http://conservativevoice.blogspot.com/

Thursday , October 28, 2004
John Kerry's Dishonorable Discharge
Through a very reliable source, I received a copy of the following e-mail to Sean Hannity asking his help in exposing the truth about John Kerry's discharge papers fromteh US Navy. The author is a retired former Navy lawyer and he references the former personal lawyer to then Secretary of the Navy J. William Middleton.

If these two gentlemen can shed light on the truth of John Kerry's record, then the American people have a right to know.

(Deleted by Admin)

Admin note: Until the legitimacy of this e-mail is established beyond doubt, please do NOT reproduce it in this forum. Thanks.

[Hondo]

Absolutely great if true and verifiable. Unfortunately, it's pretty easy to send bogus e-mail.

Anyone have a clue as to where to begin researching the bona-fides here?
_________________
"War is an ugly thing, but not the ugliest of things: the decayed and degraded state of moral and patriotic feeling which thinks nothing worth a war, is worse."
-- John Stuart Mill

[Hondo]

Damn, I overlooked the obvious.

Anyone out there have a "Navy OnLine" account? CAPT Nelson may well have one as a member of the USNR(Ret) - and I believe Navy OnLine has a White Pages directory.
_________________
"War is an ugly thing, but not the ugliest of things: the decayed and degraded state of moral and patriotic feeling which thinks nothing worth a war, is worse."
-- John Stuart Mill

[Spotted One]

How about checking with the American Bar Association - a JAG would probably keep ties w/ the ABA

[mangdawg]

[kimberly]

(Deleted By Admin)

http://www.sstlawfirm.com/attorneys.htm#MFS

Mr. Sullivan is a long-time member and past president of the California Employment Law Council and is a frequent employment law lecturer to lawyers and human resource specialists. Mr. Sullivan is also active in the U.S. Naval Reserve Judge Advocate General's Corps. He has served as the Assistant Special Counsel to the Secretary of the Navy and recently supervised the Hawaii - California region of the Naval Reserve Law Program. Mr. Sullivan graduated summa cum laude, and Phi Beta Kappa, from Georgetown University, receiving the highest academic average in his Class of 1969. Mr. Sullivan graduated cum laude, from the University of Michigan Law School in 1972. Mr. Sullivan is a member of the State Bar of California, the Los Angeles County Bar Association, the Ventura County Bar Association, the Hawaii Bar Association, the State Bar of Michigan, the North Carolina State Bar and the Association of Navy & Marine Corps Judge Advocates.

Admin note:Until further notice, please refrain from posting any contact information on Messrs. Nelson and Sullivan in the forum. I would appreciate it if forum members would advise me via PM as to the location of any other contact information referencing these individuals that's been published in our forum. Thanks.

[Spotted One]

[kimberly]

There are two threads going on this topic, I've posted to both.

I would call Sullivan myself, but since I haven't followed this thread, I think it would be best if someone more knowledgable made the call. He can probably put someone, maybe Chief, in touch with Nelson?

Kimberly