Ruth F. Ives, Formerly Ruth F. Isenstein v. William B. Franke, Secretary of the Navy
This text of 271 F.2d 469 (Ruth F. Ives, Formerly Ruth F. Isenstein v. William B. Franke, Secretary of the Navy) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
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Ruth F. Ives enlisted in the Marine Corps February 2, 1952. After having been hospitalized for some six weeks for treatment of an emotional or nervous disorder, she was discharged October 22, 1952, because of disability. As her proficiency rating did not reach the minimum required by Marine regulations for an honorable discharge, there was issued to the appellant a general discharge under honorable conditions, which she accepted.
Having unsuccessfully invoked available administrative remedies, Miss Ives-sued September 15, 1958, in the District Court seeking a declaration that she was entitled to an honorable discharge, and a mandatory injunction to compel its issuance. She attacked the Secretary’s issuance of her discharge certificate as arbitrary, capricious, unlawful and violative of the due process clause, thus in effect attacking the regulations under which he acted. The District Court granted summary judgment to the Secretary of the Navy, whereupon this appeal was taken.
There is no statute prescribing the form or terms of discharge certificates for use by the Marine Corps. That being true, the Secretary of the Navy could by regulation provide for different forms of discharge, even if he were without express statutory authority to do so. Davis v. Woodring, 1940, 72 App.D.C. 83, 85, 111 F.2d 523, 525. But Congress has authorized the Secretary, under such regulations as he may prescribe, to terminate the enlistment of any woman in the Marine Corps.1 As discharge is coincident with or immediately follows termination of enlistment, we think the authority to prescribe regulations governing termination of enlistment necessarily enables the Secretary to prescribe regulations concerning discharge following such termination, including the form and terms of the certificate evidencing it.
The Secretary of the Navy therefore acted lawfully in prescribing regulations describing and defining the various types of discharge certificates to be used by the Marine Corps. Those which define an honorable discharge as a result of disability and a general discharge under honorable conditions as a result of disability are reproduced in the margin.2
[471]*471The appellant’s proficiency rating admittedly was less than 5. Hence, under the regulation, she was entitled to no more than a general discharge under honorable conditions. She contends, however, that the Secretary was not authorized “to condition the award of an honorable discharge upon the degree of proficiency of the service rendered by appellant” and that he acted unlawfully in doing so. We do not agree. We see no reason to forbid classification of discharges according to degrees of proficiency, especially since there is no connotation of dishonor in a general discharge which expressly recites that it is “under honorable conditions.”
The appellant argues that Army and Air Force regulations concerning honorable discharges are more lenient than those of the Marine Corps, and that “The difference in the requirements for an honorable discharge applied to persons similarly situated gives rise to a cause of action under the due process clause of the Fifth Amendment to the Constitution. * * * The due process clause requires that a statute (or regulation under a statute) must operate equally on all persons in like circumstances. In this case, the regulations did not operate equally upon all enlisted members of the Armed Forces and are, therefore, illegal.”
This reasoning would require that there be but one set of regulations for all branches of the armed forces pertaining to the subject of discharges, regardless of any variation in the conditions and circumstances surrounding personnel in the several services. We are not prepared to order that the branches of our armed services be integrated to that extent.
Other reasons for reversal advanced by appellant have been considered but do not seem to us to require discussion. Affirmed.
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