437 F.2d 1151
Bobby Gene KEENY, Appellant,
v.
SECRETARY OF the ARMY and Army Board for Corrections of Military Records, Appellees.
No. 20432.
United States Court of Appeals, Eighth Circuit.
February 9, 1971.
Bobby Gene Keeny, pro se.
Bert C. Hurn, U. S. Atty., and Vernon A. Poschel, Asst. U. S. Atty., Kansas City, Mo., for appellees.
Before VAN OOSTERHOUT, GIBSON and LAY, Circuit Judges.
LAY, Circuit Judge.
This case comes to us on appeal from an order of the district court denying petitioner's request for a writ of mandamus to compel the respondents to correct his military record. For the reasons stated below, we affirm.
Petitioner Keeny entered the military service on August 2, 1950, and was honorably discharged on September 25, 1952; he reenlisted the next day and on December 18, 1953, was given a discharge for unfitness. It appears that this discharge was a result of several infractions of Army regulations. Petitioner states that these infractions were caused by his alcoholic illness. Keeny seeks to reform his military record and obtain a medical discharge for his present undesirable discharge so as to reentitle him to veteran's benefits. Petitioner presented his claim to the Army Discharge Review Board, which subsequently dismissed the cause. He sought relief in the federal district court, which was denied on the ground that he had not exhausted his administrative remedies. He then appealed to the Army Board for Correction of Military Records, which informed him that the merits of the case indicated that the discharge was properly classified and would not be changed. Petitioner requested a reconsideration of this decision. On September 29, 1969, the Board informed Keeny, that no further action would be taken since no new evidence of error or injustice had been presented. Petitioner then filed this petition of mandamus to require the Secretary of the Army and the Army Board for Correction of Military Records to grant a hearing and appoint counsel for him. The district court dismissed the petition on the separate and independent grounds that (1) the petitioner's legal domicile was not in the Western District of Missouri and therefore was not the proper venue within 28 U.S.C.A. § 1391; and (2) that the petitioner had failed to exhaust his administrative remedies.
The government contends that Keeny was domiciled in Chicago, Illinois, from 1958 to 1962, and that since that time he has engaged in itinerant wanderings so as to discount any intention to establish a new residence and domicile. Keeny claims that for a period in 1961 and 1962 he lived with an uncle in Fordland, Missouri, and that he is a resident of Missouri. For reasons discussed we find it unnecessary to pass on the grounds of dismissal given by the district court.1
In the applicable regulations governing procedure before the Army Board for Correction of Military Records, the Board and Secretary have no mandatory obligation to provide a hearing concerning a request for corrective action. The controlling section, 32 C.F.R. § 581.3(c) (5), reads in part:
"Each application and the available military or naval records pertinent to the corrective action requested will be reviewed to determine whether to authorize a hearing or to deny the application without a hearing. * * * The Board may deny an application if it determines that insufficient evidence has been presented to indicate probable material error or injustice * * *"
In 32 C.F.R. § 581.3(f) (4), it is also provided:
"After final adjudication further hearing before the Board will be granted only upon presentation by the applicant of newly discovered relevant evidence not previously considered by the Board and then only upon recommendation of the Board and approval by the Secretary of the Army."
Petitioner has made no showing of "newly discovered relevant evidence" in this case. More significant, however, is the fact that reconsideration by the Board is clearly a matter of discretion with the Board and the Secretary of the Army.
Under 28 U.S.C.A. § 1361 it is provided:
"The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff."
In order for mandamus to lie the "duty owed to the plaintiff" must be ministerial and a positive command so plainly prescribed as to be free from doubt. United States v. Walker, 409 F.2d 477 (9 Cir. 1969); Prairie Band of Pottawatomie Tribe of Indians v. Udall, 355 F.2d 364 (10 Cir. 1966), cert. denied 385 U.S. 831, 87 S. Ct. 70, 17 L. Ed. 2d 67 (1966). As this court has observed:
"Traditionally, mandamus is used to compel the performance of a ministerial duty or to compel the exercise of discretion when such is required, but never to influence that discretion." (Emphasis ours.) Rural Electrification Admin. v. Northern States Power Co., 373 F.2d 686, 694 n. 14 (8 Cir. 1967), cert. denied 387 U.S. 945, 87 S. Ct. 2079, 18 L. Ed. 2d 332 (1967).
See also United States ex rel. Schonbrun v. Commanding Officer, Armed Forces, 403 F.2d 371, 374 (2 Cir. 1968), cert. denied 394 U.S. 929, 89 S. Ct. 1195, 22 L. Ed. 2d 460 (1969); Smith v. United States Air Force, 280 F. Supp. 478 (E.D. Pa.1968). The relief sought here would require the court to interfere with the Board's previous exercise of its lawful discretion.
As early said in Wilbur v. United States ex rel. Kadrie, 281 U.S. 206, 218, 50 S. Ct. 320, 324, 74 L. Ed. 809 (1930):
"Mandamus is employed to compel the performance, when refused, of a ministerial duty, this being its chief use. It also is employed to compel action, when refused, in matters involving judgment and discretion, but not to direct the exercise of judgment or discretion in a particular way nor to direct the retraction or reversal of action already taken in the exercise of either." (Emphasis ours.)
The judgment of the district court dismissing the petition for mandamus is affirmed.2
Notes:
We assume, without deciding that venue in this action properly lay in the Western District of Missouri. And for the purposes of this appeal, we will also assume that any further efforts for administrative relief would be futile
It should be noted that petitioner was given a full hearing on October 27, 1953, by the Board of Officers under the provisions of the then Army Regulation 615-368, before a finding was made as to his unfitness for Army duty. The record shows that the President of the Board explained to petitioner his right to be represented by counsel and that the petitioner stated he fully understood his rights but did not desire counsel of his own choosing or one appointed by the Board