Austin v. United States

206 Ct. Cl. 719, 1975 U.S. Ct. Cl. LEXIS 22, 1975 WL 22844
CourtUnited States Court of Claims
DecidedApril 16, 1975
DocketNo. 5-74
StatusPublished
Cited by153 cases

This text of 206 Ct. Cl. 719 (Austin v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Austin v. United States, 206 Ct. Cl. 719, 1975 U.S. Ct. Cl. LEXIS 22, 1975 WL 22844 (cc 1975).

Opinion

Davis, Judge,

delivered the opinion of the court:

John Samuel Austin, then a Navy enlisted man, was discharged in December 1969 with a general discharge, under honorable conditions, for misconduct. He has petitioned this court for a correction of his military records to delete the discharge, and also for an award of back pay. Both sides have asked for summary judgment.

The record shows that Austin was serving his third enlistment in the Navy when, on June 19, 1965 while on leave, he was arrested by Mexican authorities at Tijuana and charged with possession of and trafficking in morphine. He and a Mexican national were subsequently convicted by a Mexican court of the trafficking charge and Austin was sentenced to a Mexican jail for four years from the date of his arrest. On October 18, 1966, having posted a substantial bond, he was released from the foreign jail and returned to his duty station at the Naval Missile Center, Point Mugu, California. For the period of his Mexican confinement, he was listed as on unauthorized absence, and was not given his [722]*722Navy pay. In addition, bis enlistment was extended 484 days to end on March 24,1969, to make up for the time lost.

After his return to naval duty, Austin was processed for an administrative discharge by a Navy Board of Officers under a section of the Navy Personnel Manual making such processing for possible discharge mandatory for those convicted “by civil authorities (foreign or domestic) * * * of an offense for which the maximum penalty under the Uniform Code of Military Justice is death or confinement in excess of 1 year; * * *” 82 C.F.R. § 730.13(b) (1) (1974). This board, before which plaintiff appeared (represented by both military and civilian counsel) and testified, recommended that he be given an undesirable discharge because of the Mexican conviction. The Chief of Naval Personnel originally approved this recommendation, but in December 1969, he ordered the character of the discharge changed to general, under honorable conditions, and plaintiff was given such a discharge, which included a code meaning that he was not recommended for reenlistment.

Plaintiff asserts in this action, as he has in several District Court suits brought to prevent his discharge, that the Navy acted improperly in separating him, because the discharge was based entirely on the Mexican conviction even though he had presented to the Board of Officers evidence that the conviction was primarily obtained through use of a confession extracted from him by torture. The Board of Officers appeared to be strongly of the view that it could not go behind the Mexican conviction or pass in any way upon Austin’s allegations that that conviction was obtained in a foreign country under conditions wholly incompatible with concepts of natural law and fundamental fairness.

This is not an easy problem to unravel but we find that we need not even consider it because the court is without authority to reach that issue. The reason we have no power to assess the underlying substantive issue is that, even if plaintiff were to prevail on his claim that the Mexican conviction could not rightly be the basis for his discharge, we could not award him any back pay or other money compensation or damages. It is of course a cardinal principle of [723]*723our jurisprudence that the only suits of which we have jurisdiction under 28 U.S.C. § 1491 (Supp. III, 1973) (our general jurisdictional statute) are those in which the plaintiff seeks and can seek a money judgment. We may not give any relief unless “the plaintiff has paid money over to the Government, directly or in effect, and seeks return of all or part of that sum; * * * [or he alleges] that the particular provision of law relied upon grants the claimant, expressly or by implication, a right to be paid a certain sum.” Eastport S.S. v. United States, 178 Ct. Cl. 599, 605, 372 F. 2d 1002, 1007 (1967). Conversely, it is now firmly established that, since the general jurisdiction of this court is limited to money claims against the Government, we have no authority to enter a declaratory judgment, or to grant affirmative non-monetary relief unless it is tied and subordinate to a monetary award. United States v. King, 395 U.S. 1, 5 (1969); Jankovic v. United States, 204 Ct. Cl. 807 (1974). The affirmative relief permitted by the first sentence of Public Law 92-415, the Act of August 29, 1972, 86 Stat. 652,1 can be given only where a money judgment is entered; that is the “judgment” of which the statute speaks. See Jankovic v. United States, supra.

Why is it that we cannot grant this plaintiff a money judgment if he should win on the merits of his claim? In the decisions dealing with enlisted personnel, the court has consistently held that since these servicemen have no right to reenlist at the expiration of their current enlistments, the United States has undertaken to pay them only to the end of the current enlistment, unless it properly discharges them prior to that time. Rowe v. United States, 167 Ct. Cl. 468, 470-72 (1964), cert. denied, 380 U.S. 961 (1965). Thus, for example, in Clackum v. United States, 148 Ct. Cl. 404, 296 F. 2d 226 (1960), where we found the discharge invalid because of the grossest sort of procedural and constitutional, irregularity, 148 Ct. Cl. at 409-10, 296 F. 2d at 229, we lim[724]*724ited recovery to the period between the time of the illegal discharge and the end of that plaintiff’s then-current enlistment. 161 Ct. Cl. 34, 36 (1963). See also to the same effect, Murray v. United States, 154 Ct. Cl. 185, 191 (1961); Sofranoff v. United States, 165 Ct. Cl. 470, 479 (1964); O'Callahan v. United States, 196 Ct. Cl. 556, 559-62, 451 F. 2d 1390, 1392-93 (1971).

In two cases we did find that an enlisted man had a firm right to reenlist, and therefore that his recovery did not end with the termination of his then enlistment. See Diamond v. United States, 170 Ct. Cl. 166, 344 F. 2d 703 (1965); Smith v. United States, 155 Ct. Cl. 682 (1961). However, as pointed out in O'Callahan v. United States, supra, 196 Ct. Cl. at 561-62, 451 F. 2d at 1393, both those holdings were grounded in special statutory rights of reenlistment. While we would be inclined to the same result if the Navy had bound itself by regulation to an automatic right of reenlistment, see Service v. Dulles, 354 U.S. 363, 388 (1957); United States v. Nixon, 418 U.S. 683, 695-96 (1974), we have not been cited to nor have we in our own research found any statute or regulation which would give this plaintiff such a mandatory right to reenlist.

This rule that back pay is confined to the current enlistment — in the absence of a mandatory right to reenlist — puts Austin’s demand beyond our power to remedy. By various legal proceedings he delayed his actual discharge (December 24, 1969) nine months beyond the scheduled end of his enlistment, as extended (March 24, 1969). He was in fact paid to the later date and therefore now has no money claim against the Government.2

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Cite This Page — Counsel Stack

Bluebook (online)
206 Ct. Cl. 719, 1975 U.S. Ct. Cl. LEXIS 22, 1975 WL 22844, Counsel Stack Legal Research, https://law.counselstack.com/opinion/austin-v-united-states-cc-1975.