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If the claim of privilege was previous to or simultaneous with induction, then any logical inferences drawn must certainly be relevant only to civilian conduct. Supplemental Opinion January 4, The distinction is urged that an injunction against the defendant would call for an affirmative act which he is powerless to perform.
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The essential averments in the affidavit are not only without personal knowledge but they are largely conclusory in nature. The possible unavailability of judicial review, however, is not a justification for the failure to exhaust administrative remedies.
The defendant has also moved to dismiss on the ground of lack of jurisdiction over the subject matter, in that the conduct of a field board of the Army  insofar as the plaintiffs are concerned is not subject to the control of the defendant in this suit.
It is certainly not contended that the Army could try a soldier for a crime alleged to have been committed prior to his entry upon service. 6604-10 is alleged that such discharges are threatened solely on the basis of facts and occurrences existing prior to plaintiffs’ inductions, despite their 604-01 and honorable service.
The issue, however, to which it is addressed is not the determination of the security status of an individual soldier, nor even his retention in the army, but the infliction of harm by means of a discharge without honor in the case of one who not only does not merit such a discharge on the basis of his actual service, but who was inducted with knowledge on the part of the Arr, actual or constructive, of his civilian background.
Rather than deny the motion for a preliminary injunction, therefore, I shall hold it in abeyance for a short time to give the plaintiffs an opportunity to make the necessary showing, if they can. An affidavit was submitted, at the court’s request, at to set forth the relative times of the claims of privilege and of inductions.
I would not assume, and could not if I would, for the purposes of preliminary injunction, the existence of facts warranting the court’s intervention. As already indicated, it is not at this time clear that he lacks the necessary power.
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The field boards have apparently been called by order of the plaintiffs’ Commanding Officer, the Commanding General at Fort Dix, New Jersey, not within this district. 604-0 honorable discharge encompasses a property right, as well as civil rights and personal honor. And it is further alleged that so much of the regulation as deals with termination of service on the basis of acts prior to induction is invalid.
The showing was, however, predicated upon the claim, which is conceded, that plaintiffs, having failed to complete a “Loyalty Certificate for Personnel of the Armed Forces”, form DD 98,  they cannot qualify for more than a general discharge under honorable conditions, under paragraph 17b 1 b of A The defendant has cross-moved for dismissal under Fed.
In a memorandum dated November 18,the court held the motion in abeyance pending the making of a showing by plaintiffs which they had not attempted of the imminence of irreparable injury. Plaintiffs, inductees now serving in the Army at Fort Dix, New Jersey, have sued for a declaratory judgment concerning their discharge rights, af have moved for a preliminary injunction restraining the defendant from taking proceedings against them under regulation AR July 29, In any event, this court has the power, in the appropriate circumstances, to issue a mandatory injunction, Trautwein v.
And it is the claim of the plaintiffs that they have a statutory right to be considered for discharge strictly on the basis of the merits of their military service, without being put in jeopardy of a less than honorable discharge on the basis of anything extraneous to that service.
General Railway Signal Co. Plaintiff inductees in the United States Army have previously moved for a preliminary injunction restraining the defendant from taking proceedings against them under regulation ARpending the outcome of their suit for a declaratory judgment concerning their discharge rights.
With this position, on the basis of the assumptions made, I am in agreement. United States, U. An honorable discharge is a formal final judgment on ra military record of a soldier.
It is familiar and elementary law that “the granting of a preliminary injunction is an xr of a very far-reaching power, never to be indulged in except in a case clearly demanding it. The motion to dismiss the complaint on the ground that it fails to state a claim upon which relief can be granted, in that ad have failed to exhaust their administrative remedies, stands in the posture of admitting the well-pleaded material allegations of the complaint.
The cross-motion to dismiss will be denied. No testimony was offered, no affidavits were submitted and no proof of any fact was undertaken.
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Accordingly, in the absence of a proper showing of irreparable injury by the plaintiffs, the motion for a preliminary injunction will be denied.
The motion for a preliminary injunction stands in an entirely different posture from the motion to dismiss under Rule 12 b 6. All that does appear is the fact that field board hearings have been scheduled to initiate the procedure whereby the feared result may occur.
The defendant is being sued in his official capacity as Commander of the First Army, with headquarters in this district.