Plaintiff in this CPLR Article 78 challenging his discharge from the New York Guard [NYG]* and New York Division of Military Affairs' [DMNA] alleged failure to respond to his FOIL request, Plaintiff sought, among other things, records related to the charges he had attempted to file.
Plaintiff had served as a noncommissioned officer with the NYG. During his service, he was counseled over a series of months regarding various disciplinary incidents, most relevant here allegations that Plaintiff had made unauthorized inquiries into the number and identities of NYG service members who had been awarded State Guard Association of the United States [SGAUS] honors.
After Plaintiff attempted to initiate court martial proceedings by purporting to file formal charges with the Division of Military and Naval Affairs [DMNA] against several officers involved in disciplinary incident in which he had been involved, he was honorably discharged from the NYG.
DMNA cross-moved to dismiss the Plaintiff's Article 78 petition on the grounds that Plaintiff's "challenge to his discharge was nonjusticiable and ... that he had failed to exhaust his administrative remedies as to his FOIL claims". Supreme Court granted DNMA's cross-motion and dismissed the proceeding explaining that Plaintiff's challenge to his discharge was barred by the intra-military immunity doctrine and Plaintiff's FOIL challenge was moot. Plaintiff appealed the Supreme Court's ruling.
Addressing the doctrine of intra-military immunity, which applies to both the federal armed forces and a state organized militia, the Appellate Division noted that the doctrine "bars a lawsuit if 'the injuries [for which a plaintiff seeks to recover] arise out of or are in the course of activity incident' to the plaintiff's military service". However, opined the court, civilian judicial review of internal personnel matters of the military "are subject always to the civilian control" and that of the legislative and the executive branches of State government.
Citing Gilligan v Morgan, 413 US 1, the Appellate Division opined that "[a]s a general rule, '[civilian] courts must, at the very least, hesitate long before entertaining a suit which asks the court to tamper with the established relationship between enlisted military personnel and their superior officers' ... Particularly where, as here, a petitioner is seeking judicial review of a discrete military personnel decision that would unquestionably require a fact-specific inquiry into an area affecting military order and discipline, civilian courts must tread cautiously".
Noting that the "non-justiciability of discretionary military decisions is not absolute" and courts may nevertheless review facial challenges to the constitutionality of military regulations as well as claims that the military failed to follow its own regulations in a manner that substantially prejudiced a service member, the Appellate Division found that Plaintiff had made no such claims in the instant proceeding and his challenge to DMNA's decision to honorably discharge him from the NYG concerns solely, under the facts presented, a military personnel decision stemming from questions of military order and discipline.
Finding that Plaintiff's challenge was nonjusticiable under the intra-military immunity doctrine, the Appellate Division held Plaintiff's "unsupported assertion that his discharge was retaliatory does not necessitate a contrary conclusion" and, contrary to Plaintiff's contentions, the status of SGAUS as a nonmilitary organization is of no moment inasmuch as Plaintiff's misconduct underlying his honorable discharge stems from his actions related to his service with the NYG.
The Appellate Division then held that Supreme Court properly dismissed Plaintiff FOIL claims as moot, inasmuch as the record reflects that he received responses to his requests.
Addressing Plaintiff's claim the the disclosures were inadequate, the Appellate Division found that Plaintiff had failed to exhaust his administrative remedies by first pursuing an administrative appeal.
* Akin to the New York National Guard, the NY Guard is authorized by Article VIII of the Military Law and maintained at the Governor's discretion (see Military Law §165 [1]). The NY Guard is made up of unpaid volunteers; the volunteer force "augments and supports the New York National Guard," but they "are not federal military reservists like members of New York State's Army National Guard, its Air National Guard" and its "Naval Militia".
Click HERE to access the Appellate Division's decision posted on the Internet.