Undesirable Discharge System

Is Attacked by Ex-Navy Lawyer

By Roy W. Adams

KX

An Akron lawyer who learned about military justice in his two years in the Navy Judge Advocate General's Corps has charged

that some service men are given undesirable discharges unconstitutionally.

Douglas L. Custis, 28, referred to discharges given in administrative hearings, violatingà serviceman's right to due process of law. Writing in the September

issue of the American Bar Association Journal, Custis criticized Navy field-board hearings held to determine whether an individual should be discharged and whether the discharge would be general or undesirable. Custis was able to write from personal experience, ha ving represented servicemen in court-martial and before administrative discharge boards.

A NATIVE OF Cleveland. Custis grew up in Hartville in northern Stark County, the son of Mr. and Mrs. Jean D. Custis. He is a direct descendant of a brother of George Washington's wife Martha. He also claims Robert E. Lee as an ances tor.

A 1964 summa cum laude graduate of Ohio University. Custis earned a law degree at the University of Cincinnati in 1967. He spent 1968 to 1970 in the Navy.

Referring to the Navy's field-board hearings. Custis said procedures do not allow normal legal protection.

THEY DENY THE ac-

cused the right to subpoena witnesses on his own behalf or to confront and crossexamine witnesses against him. The prosecution is not required to adhere to the

rules of evidence or shoulder the burden of proving guilt beyond a reasonable doubt, he said.

"I must make perfectly clear that although my article deals almost exclusively with naval judicial procedure, the situation described applies equally to the Army and Air Force,” Custis said.

A MEMBER OF the Ohio and Florida bars, Custis is affiliated with the Akron law firm of Brouse, McDowell, Bierce, Roetzel & Hunsicker.

Of all the classes of discharges issued, the bad conduct (BCD) and the dishonorable (DD) are the only two which necessitate a trial by court-martial. The others are honorable. general (under honorable conditions) and undesirable (UD).

Although the undesirable discharge is given under "other than honorable conditions," it can be bestowed in administrative hearings. Such discharge carries much the same stigma as the BCD or DD. Custis emphasized, but can be given without the built-in legal protections of the courtmartial.

ONE OF CUSTIS biggest complaints is that the system, which allows the government to stigmatize a serviceman with a discharze carrying legal remiticu

tions of a court-martial sentence without providing him with the protections of due process of law," violates the guarantee of the U.S. Constitution.

"I personally handled the case of a young sailor accused of committing a homosexual act," Custis said.

"I demanded that he be tried by court-martial because I felt I could prove the charges groundless and have the case thrown out. But the Navy rejected my way and handled it administratively. As a result, the young man-he was about 19 was tossed out of the Navy with an undesirable discharge.

"I KNOW OTHER Navy lawyers," Custis said, "who reported to me at least three cases of men being accused of drug abuse, cases they knew they could win in a court-martial, that were handled in similar administrative fashion with similar results."

A former serviceman with an "other than honorable" discharge discharge finds it hard to get a good job and he can suffer emotional and social ill effects. Custis wrote.

Job problems develop because employers can not learn from the ex-serviceman's discharge certificate the gravity of the offense which led to its issuance.

CUSTIS URGES the services to eliminate the UD from their arsenal of discharges. This would limit the military's authority in administrative proceedings to the issuance of the general discharge (GD), always given under honorable conditions. Normally the GD goes to servicemen with below average over-all performance. It should be the rule. the lawyer wrote, unless actual evidence of criminal behavior exists; then the military should prosecute the person by court-martial.

"In cases in which only a suspicion of guilt exists or available evidence against the individual is not persuasive beyond a reasonable doubt as a matter of law, the military ought not be permitted to convict administratively when it could not do so judicially," he concluded.

Legislation now before Congress would correct these inequities.