Arthur R. GRIMM, Appellee, v. Harold BROWN, Secretary of the Air Force, et al., Appellants, 449 F.2d 654

WILLIAM P. GRAY, District Judge: The appellee, Arthur R. Grimm, was a Captain in the Air Force. He was administratively discharged in 1963 after approximately seventeen years of military service. His discharge followed the recommendation of a board of inquiry that considered four misconduct charges lodged against Grimm to be well-founded. After exhausting his administrative remedies, the appellee brought an action in the district court to set aside his discharge. Thereafter, both parties filed motions for

summary judgment based on the administrative record. The district court, 291 F.Supp. 1011, granted the ap-pellee’s motion and entered judgment voiding the discharge and ordering the appellee’s reinstatement in the Air Force, effective from the date of discharge. The appropriateness of the district court’s order is at issue on this appeal. The appellants contend that it was error to invalidate the discharge and order reinstatement of the appellee instead of remanding the matter to the Air Force for reconsideration.

The appellants argue that such remand was required, because the district court did not disapprove all four of the charges on which the discharge was based, and that the Air Force should be given the opportunity to determine whether the remaining, concededly valid charges constitute a sufficient basis for discharge. We are unable to accept the appellants’ contention, and we affirm the judgment below. One of the four charges against Grimm, which the district court deemed to be the most serious, pertained to an alleged violation of national security.

The district court found that this charge was not supported by substantial evidence and that the Air Force had violated its own procedural regulations in the prosecution of that charge.

Additionally, the district court ruled that the gravity of the security charge permeated the board’s consideration of the other charges to the point that “the Board’s findings were collective and finding No. 3 (the security violation) is so interwoven with the other findings that it is impossible to segregate the same so as to work out a curative formula.” The district court further stated that “[t]he manifest error and admitted irregularity concerning said findings are of such pervasive effect as to render the totality of the findings and recommendation invalid.” Therefore, it is apparent that the district court did not merely determine that a single charge was defective, but specifically found that the appellee was denied “a fair and impartial hearing” on all of the charges due to error with respect to the security charge.

Consequently, this is not a case in which some of the findings, but not others, were found to be defective and remand was therefore deemed appropriate, such as Siang Ken Wang v. Immigration & Naturalization Service, 413 F.2d 286 (9th Cir. 1969), Meehan v. Macy, 129 U.S.App.D.C. 217, 392 F.2d 822 (1968), or Bond v. Vance, 117 U.S.App.D.C. 203, 327 F.2d 901 (1964).

For example, the court in Meehan stated that it was remanding the matter for further consideration by the agency because it was “* * * unclear whether the three charges [one of which had been invalidated] were deemed by the agency and the Civil Service Commission to constitute separate or cumulative grounds for discharge.” 392 F.2d at 839. Therefore, the case was returned to the agency for further proceedings. In the instant case, we have accepted the district court’s conclusion that the findings of the board were collective and the charges inextricably interwoven.

Thus, the denial of a fair hearing infected all of the charges and there are no findings that survive for remand. The appellants also urge that remand is necessary because determination of the standards for discharge lies within the discretion and expertise of the military, and the judiciary should not arrogate that responsibility to itself. However, the district court did not undertake to decide which, if any, of the four charges, or combinations thereof, constituted a sufficient basis for the appellee’s discharge.

The Air Force is still free to make that determination after affording the appellee a fair hearing on all of the charges. For this reason, there is no judicial interference with agency discretion. In this respect, the appellants’ reliance on Van Bourg v. Nitze, 128 U.S.App.D. C. 301, 388 F.2d 557 (1967) is misplaced. In that case, remand was ordered to permit the military to decide an issue within its peculiar competence and discretion.

However, no prejudice resulted to the appellee in Van Bourg by remand since the determination to be made by the military involved only the character of the discharge and not its validity as in this case. The appellee is entitled to all of the emoluments of his position as an Air Force officer until he is validly discharged after a fair and impartial hearing. The judgment of the district court is affirmed.