Cole v. Texas Army Nat'l Guard

In Cole v. Texas Army Nat'l Guard, 909 S.W.2d 535, 538 (Tex.App. 1995), a National Guard member brought suit against the Texas Army National Guard and the Adjutant General claiming that his discharge was illegal because the Adjutant General had failed to convene an efficiency board before his dismissal. Cole, 909 S.W.2d at 536-37. The Texas government code, similar to our statute, allowed the officer to hold his position until he reached the age of sixty-four or until among other things he was discharged by a court martial or efficiency board. Id. When discharging Cole, the Adjutant General had failed to convene either a court martial or an efficiency board and had made the discharging decision unilaterally without a hearing. The court held that Cole could bring suit because it was the court's responsibility to make sure the Adjutant General did not exceed his power. In making its decision the court stated: "What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions." Sterling v. Constantin, 287 U.S. 378, 401, 77 L. Ed. 375, 53 S. Ct. 190, 196 . Thus, there can be no question of the district court's power to inquire whether a military officer's administrative order exceeds his or her authority. See, e.g., State v. Sparks, 27 Tex. 627 (1864). The courts do not interfere with most military decisions and actions, however, because they are ordinarily taken within the limits of military power and discretion. The courts do not wish to hamper military efficiency and they ordinarily have no familiarity with applicable "military law," that is to say the law applicable to military justice, the law of war, martial law, and military government. See Alfred Avins, State Court Review of National Guard Courts Martial and Military Board Proceedings, 41 Cornell L.Q. 457, 470-71 (1956). (Cole, 909 S.W.2d at 538 n.3.)