Appellant challenges the validity of Section C of Air Force Manual (AFM) 39-12, which authorizes the Air Force to separate a servicemember who has been convicted by civilian authorities of certain types of offenses.1 That regulation prescribes that a servicemember who is discharged on the basis of a civilian court conviction normally should receive a less than Honorable Discharge.2 In Part I of this opinion, we reject appellant's challenge to the validity of the relevant discharge regulations. For the reasons set forth in Part II, we remand the case in order to permit reconsideration by the appropriate Air Force authority (a) without any presumption of appellant's susceptibility to an Undesirable Discharge and (b) with a requirement that, if an Honorable Discharge is denied, such denial will be accompanied by the statement of reasons mandated by the Administrative Procedure Act, 5 U.S.C. § 555(e).3

In November, 1972, in the United States District Court for the Eastern District of California, Thomas Roelofs entered a plea of guilty to a charge of possessing approximately three grams of heroin with intent to distribute, a violation of 21 U.S.C. § 841(a)(1) (1976). In January, 1973, he was sentenced to 18 months imprisonment, with four months to be spent in a jail-type institution and the execution of the balance of the sentence suspended; he was also placed on probation for three years. So that Roelofs could complete the remaining months of his military service, the trial judge stayed the execution of his sentence "to August 10, 1973 or in the alternative, one week after discharge from the Armed Forces if such discharge should occur before August 3, 1973."4

In March 1973, the Air Force initiated a discharge proceeding against Roelofs pursuant to AFM 39-12, § C. Six weeks later, at an administrative hearing before a board of officers, it was determined that, because of his civilian conviction, Roelofs should be issued an Undesirable Discharge.5 When this recommendation was approved by the commanding officer, appellant was discharged on June 25, 1973.

Roelofs applied to the Air Force Discharge Review Board (DRB) to upgrade his discharge to an Honorable Discharge.6 After a hearing, the DRB upgraded the discharge to General, but not to Honorable; it prepared no statement of findings and offered no explanation for its decision.7 Roelofs then applied for an Honorable Discharge to the Air Force Board for Correction of Military Records (BCMR).8 The BCMR denied his application without a hearing; like the DRB, it did not articulate either its findings or its reasoning.9

Having pursued his remedies within the Air Force, Roelofs brought this suit in the United States District Court to compel the Secretary of the Air Force to upgrade his discharge to Honorable. He argued that the Secretary lacked statutory authority to promulgate the regulation relied upon to issue him a less than Honorable Discharge, and that the regulation violated the Due Process Clause of the Fifth Amendment. On cross motions for summary judgment, the district court rejected both claims. This appeal followed.10

I. APPELLANT'S CHALLENGE TO THE VALIDITY OF AFM 39-12, § C

The pertinent regulation, AFM 39-12, § C authorizes the Air Force to separate a servicemember who has been convicted of certain types of offenses by civilian authorities11 and provides that servicemembers so separated will be issued an undesirable discharge "unless the particular circumstances in a given case warrant a general or honorable discharge."12 Roelofs challenges only that aspect of the regulation pertaining to the type of discharge certificate issued. He argues that Congress has required that the certificate of discharge must accurately reflect the nature of the military service rendered. He contends that the armed services are prohibited from ordering a less than honorable discharge on the basis of conduct which is not reflected in the record of military service and not found to have adversely affected the quality of that service.

His claim of prohibition on the armed services is based both on the intent of Congress and also, taking into account the stigma and deprivation13 that attend a less than honorable discharge, on the Due Process Clause of the Fifth Amendment. Appellant contends that, since P 2-25 of AFM 39-12, § C prescribes that a derogatory discharge should normally follow a civilian court conviction, without regard for the impact of the illegal conduct on the quality of military service, the regulation exceeds the Air Force's statutory and constitutional authority.

Harmon v. Brucker, 355 U.S. 579, 78 S. Ct. 433, 2 L. Ed. 2d 503 (1958), established that a less than honorable discharge may not be based upon activities prior to induction into the service. Though Harmon was decided on statutory grounds the Court was no doubt concerned lest the Army's action subject the servicemembers involved to ex post facto punishment. Other cases circumscribe the military's right to certify a "less than honorable" discharge on the basis of constitutionally protected conduct.14 In the instant case, appellant is concededly guilty of having committed a violation of the Federal law prohibiting possession of heroin with intent to distribute the drug. This is not a minor matter, nor is it one raising an ex post facto concern or touching on appellant's constitutional rights. Neither Harmon nor cases involving fundamental liberties control the outcome here.

The challenged regulation in effect provides that if an airman is found guilty of an offense that constitutes a felony under the Code of Military Justice, if triable by court martial, he is subject to discharge for an infraction of military discipline. In this case we consider the regulation only in the aspects involved in appellant's case the issuance of a general discharge for an act that is a felony under Federal law. We are not concerned with other provisions or applications of the regulation, such as discharge for an offense that involves moral turpitude.

There is no doubt that the Air Force can validly take the position that as a matter of personnel policy it does not want in its service persons who commit a felony while in the armed forces. Appellant does not deny this.

Once the ability of the Air Force to discharge convicted individuals is recognized, there is no irregularity in the presumption that discharge under such circumstances will ordinarily be less than honorable. The general attack upon the regulation must be distinguished from consideration of what is appropriate for a particular case. At this juncture, we do not examine the facts of appellant's particular case. What the regulation establishes, through the technique of presumption is an assignment of a burden. For present purposes it is not necessary to refine the pertinent burden, or to define it as a burden of proof, of persuasion, or of coming forward. The point is that it is consistent with law and lore that an "honorable discharge" should ordinarily connote completion of the term of service in good standing, may ordinarily be withheld from a person who commits, while in the armed forces, an offense that would expose him to a penalty of more than one year's confinement.15

Appellant asserts that the military is obligated, by statute and the Constitution, to give an honorable discharge to all persons leaving the service unless they have been guilty of conduct that impairs the quality of their military service.16 But the military may reasonably and properly look beyond the performance by a particular serviceman of his daily chores, and it may take into account the impact of his "outside" actions in diminishing the overall effectiveness of the military. In some instances, the impact may be relatively direct as when outside crime leads to detention outside military control, or to subjection to control by civil authorities. This is not without pertinence to appellant's situation, and its impact is not gainsaid by the court's decision to permit the Air Force to keep him until the end of his term on August 3, 1973. The court's judgment prevented the military from proposing a renewal of appellant's term, or scheduling duties (including training) in inducement or anticipation of renewal. In many cases there may be a multiplication of such impacts, as in a case like the present one, when the criminal activity of one servicemember is in combination with another, or has the potential to involve still others (if the drugs were sold on the service base), or might use military channels or facilities beyond the ordinary supervision of civilian enforcement authorities. Such matters may be taken into account in the exercise of discretion as to the quality of discharge issued, but they are not conditions of legality for denial of an honorable discharge.

The prime flaw in appellant's approach is the emphasis on the quality of his particular performance of assigned chores and his failure to take into account the impact of his status and actions upon the quality of his military service in a more general aspect. The military has an overall interest, in terms of morale and efficiency, in insisting on a corps of servicemen who abstain from serious criminal activity. In a broad sense, the military does not exceed its province when it in effect instructs its members that their overall obligation as servicemen requires them to abide by the laws of the land.

The regulation provides flexibility to address the needs of particular cases. It sets up a procedure to study the specific facts to see whether the appropriate discharge is honorable, general, or some inferior category. This is no mere formality. Fully one-third of those released from the military because of civilian convictions receive either general or honorable discharges.17

This court has no general jurisdiction to sit in review of the particular discharge orders. However, it is appropriate to identify two pertinent considerations. The first is that a "general discharge," the kind given appellant, while not as desirable as an "honorable discharge," is still different in kind from an "undesirable" discharge or "bad conduct" discharge.18 The second consideration is the fact that a person convicted of a felony is already stigmatized. To the extent that a "general discharge" imparts stigma, the question arises whether it is greater in any significant degree than the stigma already borne by the felon.

To the extent that this case involves the issue of Air Force regulations, we reject appellant's contention that an honorable discharge must be provided where there has been a termination because of the commission of a felony unless the government shows that the underlying offense is "service-related" in some direct sense. The case before us involves a general regulation establishing a presumption of an undesirable discharge in the event of such a termination, together with a procedure for a showing that in a particular case the serviceman should be given an honorable or general discharge. We find that regulation reasonable.

We do not have here a case where an undesirable discharge was issued based upon conduct which was not "service-related." The incremental stigma that results from an undesirable discharge is of a different order from that present in this case. Regulations indicating that a good record would warrant either an honorable or general discharge19 create the clear impression that an undesirable discharge indicates the absence of a good record of performance in the service. This is in adverse finding, over and above the stigma of the felony, because it is equivalent to a finding that the serviceman has performed inadequately on the job. The presumption that an undesirable discharge will result from a civilian conviction is warranted if it results in deficiency in performance of military duties or has a direct impact upon military service. A showing that negatives such a deficiency rebuts the presumption. That is our understanding of the intent of the regulation, and is of course consistent with the upgrading of appellant's discharge from undesirable to general. Appellant's attack on the validity of the regulation is not accepted.

Assuming that appellant is not entitled to a decree declaring the regulation invalid, we respond to his prayer for "such other and additional relief" as may be appropriate20 by according the lesser relief of a remand to afford the opportunity for a statement of reasons for denying an honorable discharge, a statement required by the Administrative Procedure Act, 5 U.S.C. § 555(e).21 Though section 551 of the APA specifically excludes from its scope actions of courts martial and military commissions,22 there is no question that the DRB's and BCMR's involved here are neither courts marital nor military commissions,23 and the APA's legislative history clearly indicates that it applies to other military functions,24 including, through the Secretary of the Air Force,25 the DRBs and BCMRs.

The APA embodies the notion that "Rule of Administrative Law" places emphasis on "a broad-gauged appraisal of the decision-making process, and assurance of its reliability."26 This entails

the "simple but fundamental" requirement that an agency or official set forth its reasons, a requirement that is essential to "the integrity of the Administrative process," for it tends to require "the agency to focus on the values served by its decision, . . . hence releasing the clutch of unconscious preference and irrelevant prejudice."27

This notion achieves concrete expression in section 6(d) in the APA, now codified at 5 U.S.C. § 555(e) (1976). § 555 is not limited to cases where a specific statutory prescription exists, but applies "according to the provisions thereof."28 Section 555(e) applies where "a written application, petition, or other request . . . made in connection with any proceedings" is denied. The requirement of "a brief statement of the grounds for denial"29 obtains even though the request pertains to a matter of discretion or grace, not one of entitlement. Appellant has standing as a person aggrieved by the denial of an honorable discharge in view of the personal and perhaps economic impact. In King v. United States, 492 F.2d 1337 (1974), the Seventh Circuit, in an opinion joined by Justice (then Judge) Stevens, held that an application for parole like the case at hand, a matter of discretion rather than one of entitlement was subject to the requirements of § 555(e).30 The fact that the proceeding for the disposition of appellant's individual application, filed in accordance with pertinent law and regulations, was informal, does not negate the applicability of § 555(e).31 The King doctrine has vitality32 and fairly governs the instant case.

The legislative history of § 555(e) supports its applicability, and thus with the requirement of a statement of the basis for denying a request, even where there is no formal proceeding or hearing.33 The requirement of a statement of grounds of denial comports with the purposes of the APA, and abets the understanding and perception, by both the individual affected and the public, that the official or agency has made a considered disposition.

There is an exception to § 555(e) when the denial is "self-explanatory." The Senate Committee Report, supra note 33, makes it clear that this exception only applies to a situation where the denial, or the continuation of the grounds of a prior denial, "fully informs" the person making the request. Here there was no statement of explanation whatever, either in the denial appealed or previously. It is not enough if Government counsel offer to explain the reasons for the denial; it must be "self-explanatory." Thus, it remains for the appropriate authority to provide the statement of grounds.

The requirement of § 555(e) is modest. Indeed, it probably does not add to, and may even diminish, the burden put on an agency by the APA's provision for judicial review. Any aggrieved person can bring a lawsuit contending that the denial of the requested relief was arbitrary agency action.34 It would be a rare case indeed in which the plaintiff could not make a plausible enough contention to require the government to state the reasons for its action. When the reasons have not been asserted by the agency at the time the action is taken, there is a prospect of further proceedings to develop those reasons. The burden is lessened if the agency provides at least some statement of reasons at the time it takes its action. In this regard, we note that, in 1976, the government agreed to provide statements of reasons in cases like the appellants arising after January 31, 1977.35 While the consent judgment by which the government bound itself is not precedent and has not figured in our reasoning, it does suggest that the application of § 555(e) in this context does not impose an intolerable burden.

It cannot be assumed that a remand to provide a statement of grounds would be a futile gesture.36

The judgment is in part affirmed, and in part remanded for further proceedings not inconsistent with this opinion.

So ordered.

BAZELON, Senior Circuit Judge, concurring in the result only:

I join the court in upholding P 2-25 of AFM 39-12, § C ("P 2-25"), and remanding this case to the Air Force for an explanation of appellant's discharge rating. I do so, however, because I find P 2-25 consistent with the Air Force's duty to base the characterization of appellant's discharge solely on the quality of his military service.

In Harmon v. Brucker,1 the Supreme Court observed that the purpose in grading discharges is "to specify the character of service rendered during the period covered by the discharge."2 Unlike the decision to discharge a serviceman, which depends upon the likelihood of his serving effectively if retained, the characterization of a discharge depicts the nature of the service he has actually rendered. Thus, although a wide range of behavior (including pre-service and off-duty behavior) may be pertinent to a discharge decision, only those activities that have in fact affected the performance of a serviceman's military duties are relevant in describing the quality of his past service.3

Paragraph 2-25 does not, in my view depart from these requirements. By creating a presumption that certain civilian convictions will ordinarily warrant an Undesirable discharge,4 P 2-25 simply reflects the Secretary's judgment that such a conviction (and the conduct underlying the offense) is likely to have adversely affected the quality of an airman's military service.5 As Department of Defense statistics reveal, those responsible for grading discharges have not blindly followed this presumption.6 And both Department of Defense and Air Force regulations expressly require the final characterization of an airman's discharge to depend solely on his record of military service.7 Paragraph 2-25 thus does not require, nor should it be interpreted to permit, a less-than-Honorable discharge to rest upon conduct that has not affected the quality of an airman's military service.8

My disagreement with the majority lies in their refusal to apply this fundamental principle here, where Airman Roelofs received a General rating. The majority apparently concludes that an Undesirable rating requires a reason related to service performance; a General rating does not. I believe that neither of the majority's premises for this conclusion is supported by the record or by precedent. First, the majority assumes that P 2-25 draws a distinction between Honorable and less-than-Honorable discharge ratings, creating a presumption in favor of the latter upon evidence of a civilian conviction.9 The fallacy of this assumption is made apparent by the very terms of P 2-25, for the regulation creates only a presumption in favor of Undesirable discharge ratings.10 Secondly, the majority speculates that the stigma borne by a felon who receives a General rather than an Undesirable rating is not substantial enough to warrant judicial concern.11 I can simply find no support for this proposition. Our cases have uniformly recognized that because 90% of all discharges are graded Honorable, anything less than an Honorable discharge is considered derogatory and can inflict both social and economic injury upon its recipient.12 Further, the injury from a less-than-Honorable discharge is often entirely independent of the underlying reason for the derogatory characterization.13

The appropriate course, in my judgment, is therefore to remand this case to the Air Force to ensure that appellant's discharge rating was based solely upon proper considerations. At his hearing before the Discharge Board of Officers, appellant presented evidence that his civil conviction which stemmed from an arrest while he was off base, off duty, and out of uniform did not adversely affect the quality of his military service.14 In these circumstances, it is incumbent upon the Air Force to provide some justification for the characterization of his discharge as less-than-Honorable.

The Air Force nevertheless argues, and the majority suggests,15 that in view of the much-publicized drug problem in the military, "it is inconceivable that (the Discharge Board) could not have found that appellant's conviction and the circumstances surrounding the offense adversely affected the quality of his military service."16 It may be that appellant's less-than-Honorable rating could be lawfully justified on this or some other basis.17 But the Air Force has thus far failed to provide a reason for the characterization.18 It is well-settled that a court must judge challenged agency action solely on the grounds invoked by the agency,19 and neither counsel's nor the court's post hoc rationalizations can substitute for the agency's reasons.20 To enable meaningful review of the Air Force's discharge decision21 and to fulfill the requirements of 5 U.S.C. § 555(e),22 I therefore join the court in remanding this case to the Air Force.