with whom WISDOM, BELL, GOLDBERG, GOD-BOLD and MORGAN, Circuit Judges, join (dissenting):
With utmost deference to the views of my colleagues I am constrained to dissent.
I do so because I am fully convinced that Lt. Sims has a “property” right and a “liberty” right, as these terms are discussed in the majority opinion, to be protected under the Fifth Amendment to the Constitution. As I read the majority opinion, it holds that he has neither; it precludes this officer from ever claiming the right to a personal appearance, either before or after discharge, to undertake to convince those in authority that, instead of being discharged for immoral conduct, his potential as an Air Force officer is such as to warrant his retention in the service until the normal expiration of his tour of duty. This follows, it seems to me, because the Court holds that he has neither a property nor a liberty interest to protect, and without either he, of course, has no claim to procedural due process.
Because the opinion does not deal with the exhaustion of administrative remedies, I refer only to what has been said with respect to this in the panel opinion, calling attention, however, to that part of footnote No. 2 of the majority opinion, which cites 10 U.S.C.A. § 1553 and which italicizes the language “a person who requests a review under this section may appear before the board in person or by counsel or an accredited representative of an organization recognized by the Administrator of Veteran’s Affairs under chapter 59 of title 38.” I comment on this because, as stated in the panel opinion, and as conceded at all times by the Government, the provisions of § 1553 do not permit the board created thereunder to reinstate an airman or officer, once he has been discharged. I am concerned lest the italicizing of the above language may inadvertently convey the impression that such a right is available after discharge.
Of course, as also commented on in the panel opinion, and as conceded by the Government, § 1552 under which the Secretary may reinstate an officer, does not guarantee a personal appearance of a discharged airman or officer, seeking to have his discharge revoked.
It is unnecessary to repeat the facts that led to the filing of this lawsuit. It seems fair to assume for the purpose of this opinion that the majority would recognize that Lt. Sims is being deprived of a “liberty” right, protected by the due process clause of the Fifth Amendment, were it not for the change in regulations instituted by the Air Force since the filing of this action. The majority concludes that the change has the effect of keeping hidden the reason for *865discharge because the Air Force merely retains information that Sims has been discharged for the reasons outlined in paragraph S 4D(4) of Air Force Regulation 36-2 solely within its own confidential files.
The opinion of the Court comments on the fact that under Air Force Regulation 35-6, paragraph 4-6, effective 1 May 1974,1 only the Air Force itself, and the officer, at his own election, will now have the damaging information as to the “reason for discharge.”
With deference, I feel constrained to say that this theory of denying Lt. Sims a hearing with minimal due process is based upon what I consider to be the erroneous theory that what the officer and the courts should be concerned about is to keep from potential future employers the truth of the facts leading to Lt. Sims’ discharge. This, it seems to me, is to place principal emphasis on the cosmetic effect of the new form of entries on the officer's discharge certificate rather than to place it on the question whether he is entitled to have procedural due process before the Air Force takes the action, based on the unsavory factor. I would assume that this Court would expect a former officer of the United States Air Force, when asked by a prospective employer what was meant by the two dash marks that are now entered in all discharge certificates opposite the entry “reason for discharge” would tell the truth. Failure to do so would be a fraud on a prospective employer. For Lt. Sims to answer this question under the proposed action of the Air Force, he would in honesty, be compelled to say “I was discharged for the reasons spelled out in Air Force Regulations 36-2 as outlined in paragraph 4(d)(4) of that Regulation.” Then, upon being asked what is meant by that, he would have to say “Sub-paragraph (d)(4) is entitled ‘sexual perversion’ and it reads ‘this includes but is not limited to . (4) indecent exposure.’ ” The fact that this language is not “communicated” by the Air Force to prospective employers, either by having it inserted, as it was previously, on the discharge certificate at the time this lawsuit was filed, or in response to requests by future employers, makes no difference.
Lt. Sims has to live the rest of his life with his military record. The question before this Court, it seems to me, is whether his military career should be terminated by the Air Force forcing on him a discharge on the grounds of immoral conduct without his being afforded any procedural due process to explain away or overcome the effects of his misconduct. The wound resulting from a denial of an opportunity to this officer to have such a hearing is much more than skin deep. It goes to the vitals of his future career.
Of course, this Court would not pretend to prejudge the result of a proper hearing, if one were accorded to Lt. Sims. If the Air Force, after according him whatever rights he is entitled to under our concept of procedural due process, determines that no matter how much rehabilitation has been, or can be, achieved, and no matter how satisfactory his military record may be, his acts were such as to render him unfit to continue service in the Air Force, then he *866would have to live with the discharge certificate given him as a result of such misconduct and that would be the end of the matter. His only hope, and it is a hope that seems to justify the Court’s intervention, is that before he is discharged for any reason challenging his “good name, reputation, honor, or integrity” he is entitled to such due process as we have described in the panel opinion. He should have an opportunity to be present and make an effort to persuade the appropriate officials that such circumstances as he wishes to bring before them demonstrate that he has sufficient potential to make him a proper and suitable officer to remain in the service until the end of his normal tour of duty. Under such circumstances, of course, he would then receive a discharge certificate designating normal termination of service, and this would be his passport back to civil life.
However, the impression conveyed by the majority opinion that the unsavory information designated by SDN 588, signifying a discharge on the ground of “unfitness and/or unsuitability,” is kept a closely-guarded secret within the Air Force headquarters is not, in my opinion, borne out by the appropriate regulations, as amended on July 2, 1974. These amended regulations do away with the former requirement that, at the proper space following the item “reason for discharge” an entry be made which, when traced to the appropriate Air Force regulations, clearly gives the reason for the discharge. As heretofore pointed out this code number in Lt. Sims’ case was 588, and it was a clear statement of the reasons for discharge. Under the new regulations, no SDN entry is made on the original discharge certificate which is given to the officer himself. Instead, this space is filled with two dash marks. However, there are a total of eight copies of this discharge certificate provided for under these amended regulations. Copy no. 2 is the master personnel record copy, and it presumably remains at Air Force Headquarters. However, copies numbers 6 and 8 are sent to other interested parties. Regulations provide that copy no. 6 is to be “forward [ed] to NG ANG PMO WASH DC 20310, for review and transmittal to the appropriate state adjutant general.” [Emphasis added.] Copy no. 8 is required by regulations to be “forward [ed] to USAF RECTG SVC Randolph AFB TX 78148.” (This is clearly the U.S. Air Force Recruiting Service, Randolph Air Force Base, Texas.)
The Government does not in any way seek to minimize or conceal the fact that these copies, containing the SDN designation are sent to the Air Force Recruiting Service Headquarters and to the State Adjutant General of the officer’s home state, nor is any effort made to conceal the reason for this action. The reason is perfectly clear, but it is one which has largely escaped the attention of the Court, other than the comment in the original panel opinion calling attention to the fact that the discharge given to Lt. Sims will carry a designation which makes him ineligible ever to return to service in the Air Force, the Air Force Reserve, or the Air National Guard. In the truest sense of the word he will have been “blacklisted.”
It is not the fact that the adjutant general of the state of the residence of the airman or officer, (who incidentally, is a state official, and who may share the unsavory record concerning the officer with the state’s personnel computer, so far as the record discloses) that concerns me the most. It is the purpose for which this information is transmitted to the state adjutant general and to the Air Force Recruiting Service.
Any recruiting officer or state adjutant general who might, at some future date be inclined to yield to Lt. Sims’ request that he be permitted to serve in the National Guard or reserve forces of the United States Air Force as an enlisted man or officer in time of peace or on active duty in time of national emergency will now have been permanently forbidden to do so as the result of this discharge, based as it is on Air Force *867Regulation 36-2 pursuant to AFR 36-12 SDN 588 and the code number determining him to be unfit for further recall.
This lifetime bar to future opportunity to participate in a potentially lucrative profession, either full-time, or as a part-time activity,2 it seems to me, brings the case squarely within the exception noted in the Roth case, relied on in the majority opinion. For instance, the opinion contains the following quote from Roth. “[The Board of Regents] did not base the nonrenewal of his contract on a charge, for example, that he had been guilty of dishonesty or immorality. Had it done so, this would be a different case.” [Emphasis added.]
Also quoted is the following. “Similarly, there is no suggestion that the state, in declining to re-employ the respondent, imposed on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities. ...” [Emphasis added.]
Here, of course, the Air Force did base Lt. Sims’ discharge “on a charge . . . that he had been guilty of immorality.” Furthermore, it is clear that in discharging Sims the Air Force “imposed on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities . ... ”
This is a wholly separate matter from that discussed in the majority opinion, dealing with Lt. Sims’ opportunities to obtain jobs in the commercial world which, the Court seems to consider unimpaired because his discharge certificate does not on its face carry the pejorative words or code number.3
If there can be any doubt about the nature of the “liberty” right of Lt. Sims which is here threatened, after reading the exception stated in Roth, supra, the following language from that opinion would, it seems to me, dispel any doubt. Immediately following the language: “the state, for example, did not invoke any regulations to bar the respondent from all other public employment in state universities,” 4 the court said “had it done so, this, again, would be a different case for '[t] o be deprived not only of present government employment but of future opportunity for it certainly is no small injury . . . . ’ Joint Anti-Fascist Refugee Committee v. McGrath, supra, 341 U.S. at 185, 71 S.Ct. at 655 (Jackson, J., concurring). See Truax v. Raich, 239 U.S. 33, 41, 36 S.Ct. 7, 10, 60 L.Ed. 131. The Court has held, for example, that a State, in regulating eligibility for a type of professional employment, cannot foreclose a range of opportunities ‘in a manner that contravene [s] Due Process,’ Schware v. Board of Bar Examiners, 353 U.S. 232, 238, 77 S.Ct. 752, 756, 1 L.Ed.2d 796, and, specifically, in a manner that denies the right to a full prior hearing. Willner v. Corn-*868mittee on Character, 373 U.S. 96, 103, 83 S.Ct. 1175, 1180, 10 L.Ed.2d 224. See Cafeteria Workers v. McElroy, supra, 367 U.S. at 898, 81 S.Ct. at 1750. In the present case, however, this principle does not come into play.” Board of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548.
Although I feel that the strength of Lt. Sims’ position with respect to the protection of his liberty right is sufficient to warrant the Court’s intervention with this proposed discharge until he has had minimal due process I think some comment is proper with respect to the existence of a property right, also.
I have no doubt that the arbitrary determination by the military officials involved that Lt. Sims shall be forever barred from further military service in the United States, without a hearing or proceeding that in any way approximates a trial is just as much a deprivation of a property right as would be the action of a board of bar examiners to deny an individual the right to a certificate to practice law on constitutionally suspect grounds. See Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 and Willner v. Committee on Character, 373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d 224. As to its deprivation of such a right, the Court, in language quoted with approval in Roth, said: “a State, in regulating eligibility for a type of professional employment, cannot foreclose a range of opportunities ‘in a manner . . . that contravene (s) . . . Due Process,’ ” Schware v. Board of Bar Examiners, 353 U.S. 232, 238, 77 S.Ct. 752, 756, 1 L.Ed.2d 796. How can Lt. Sims’ black listing from all future military service for state or nation be distinguished?
In sum, I think that Lt. Sims’ liberty is threatened both as to his potential for all future employment opportunities, regardless of the absence of the unfavorable entry on the face of his discharge certificate. I think this is clearly implied in the language quoted from the Roth opinion. I also think that his liberty and property rights are both threatened by the attainder against his ever having the right to serve in the state or federal military forces. The authority of the President to discharge an officer at his pleasure does not, it seems to me, extend this right to bar him from competing with all other citizens in the future to serve his country in the Air Force, without some kind of trial or hearing with minimal procedural due process.
. This document appears to be an interim modification -which states on its face that it is “effective 1 May 1974 and pending receipt of formal printed change,” in AFM 35-6. In fact we have been supplied with what appears to be the printed change in Air Force Regulation 35-6 dated 3 July 1974, which makes it clear that the regulation change cited in the opinion for the proposition that Air Force Regulations “prescribe that reasons for the separation are to be furnished only to the serviceman” do not apply at all to an original discharge certificate. They deal only with modified discharges given at the request of an enlisted man or officer, seeking to have his previously obtained discharge certificate modified by having the SDN code numbers eliminated. We have been furnished with no regulations, so far as I am aware, that so strictly limit the giving of information as to either a narrative statement for the “reason of discharge” or the code numbers that lead inevitably to the same result.
. There is, of course, the further substantial question whether by sucii action the Air Force can deprive this officer permanently from exercising the right common to every citizen of offering his services by way of military duty, from purely a sense of obligation, without any due process hearing. Removal of such a disqualification, which if imposed by legislative act, would be a “bill of attainder” prohibited by the Court, Art. 1, § 9, Cl. 3, might well be one of the rights, hoped to be protected by an officer permitted to appear in person before a hearing board.
. Not a word is said in the Roth illustrations about “communication” of this stigma to the community. The Court speaks to the Board’s action as not being based on charges affecting his character. The Court, as I read its language, says that if the Board of Regents liad based its non-renewal of teacher’s contract on such a charge, “This would be a different case.” So, too, in the second quotation, the Air Force is imposing on Lt. Sims a stigma or other disability that will “foreclose(d) his freedom to take advantage of other employment opportunities”, i. e. to follow his desire to participate in the future in the reserve or National Guard programs of the Air Force, and since the state adjutant general is a recipient of the coded discharge, from any other state or military activities.
. Here it did invoke regulations to effectively bar Sims from all public employment in the military services of the United States and of his own state.