LAY, Circuit Judge.
On March 20, 1972, while serving as a captain in the United States Army, the petitioner, Robert S. Colson, Jr., filed in the District Court for the Western District of Missouri a petition to enjoin his pending discharge from the service on April 6, 1972, and for mandamus relief. The relief sought by petitioner was a review of his Article 138 complaint, 10 U. S.C. § 938,
On this appeal, petitioner attacks the denial of the writ of mandamus based on the Army's failure to process his Article 138 complaint and its refusal to award readjustment pay. We reverse and order the issuance of the writ of mandamus.
Petitioner entered active duty in the Army on June 13, 1967. After five years of service Captain Colson would have been eligible for readjustment pay upon his discharge, in this case allegedly $10,670.00. At the time of his original discharge date, April 6, 1972, he had served almost four years and ten months in the service, some sixty-eight days less than five years.
After distinguished service in Vietnam,
Captain Colson was given his low efficiency rating on September 9, 1971. He sought redress in November of 1971 under Article 138 and Army Regulation 27-14 which require the officer exercising general court-martial jurisdiction over petitioner's commanding officer to investigate and review the facts underlying the complaint.
We turn then to the district court's refusal to issue the writ on the ground that Captain Colson had already been recommended for discharge on grounds independent of the low efficiency record. The district court based its conclusion on two affidavits received into evidence over strenuous objection. The affidavits were from a personnel officer and a recorder of the DAAD Board who related that Colson's discharge was recommended as early as September, 1971, and that it was processed without knowledge of the low efficiency report made by his immediate superior. Assuming these affidavits constituted competent evidence at trial, which they clearly did not,
It may be true that a vast organization such as the United States Army may not on occasion know what in fact both its right and left hands are doing; however, the law deems it legally bound to have sufficient knowledge of all of its own records so as not to prejudice the individual rights of its service personnel. Thus, any consideration of Colson's discharge while he was still suffering from narcolepsy which was not medically controlled must be vacated from his records. Moreover, we cannot assume that the ultimate discharge was done in disregard of Captain Colson's entire service record including his low efficiency rating.
We find that mandamus relief to afford proper redress to Captain Colson under Article 138 should have been given. The issue was not shown to be moot.
Unfortunately, the preliminary injunction was dissolved and the Army was allowed to discharge Colson. Although only a member of the armed forces is entitled to redress under Article 138, petitioner's rights cannot be denied on lack of standing since it was the Army's error which led to his present nonmilitary status. Colson's discharge should be vacated as of the date of its issuance, and he should be restored to the status he enjoyed at the time he filed his complaint; the commanding officer having jurisdiction of his complaint is ordered to review and investigate his claims, and the DAAD Board is required to stay his discharge until such time that petitioner's entire service record is before it.
Judgment reversed and remanded with directions for the district court to issue the writ of mandamus against respondents in accordance with this opinion.