Rich v. Secretary of the Army, Civ. A. No. 78-M-43.
| Decision Date | 15 June 1981 |
| Docket Number | Civ. A. No. 78-M-43. |
| Citation | 516 F. Supp. 621 |
| Parties | Roger W. RICH, Plaintiff, v. SECRETARY OF THE ARMY, et al., Defendants. |
| Court | U.S. District Court — District of Colorado |
William Reynard, Reynard & Booms, P. C., Denver, Colo., for plaintiff.
Calvin M. Lederer, Captain, JAGC, Litigation Division, Dept. of the Army, Washington, D. C., Nancy E. Rice, Asst. U. S. Atty., Denver, Colo., for defendants.
Roger W. Rich enlisted in the United States Army on February 15, 1968, and served on active duty until February 8, 1971 when he was transferred to the United States Army Reserve from which he was honorably discharged on February 1, 1974. During his tour of active service, the plaintiff was assigned in West Germany where he met and fell in love with a woman from Turkey. After denial of a request for permission to marry, they went through a civil ceremony in Turkey. A son was born to this couple in 1970. When Mr. Rich returned to the United States in 1971, his wife refused to come with him because of her previous experience in this country as the wife of a serviceman.
Upon release from active service, Mr. Rich worked as a hospital orderly and then took training in practical nursing and was licensed as a practical nurse in the state of Michigan. While working in a Detroit hospital in March, 1976, Mr. Rich was informed that his wife and son had been killed in an automobile accident in Western Europe.
On August 13, 1976, the plaintiff made application for a second enlistment in the United States Army. As part of that process, he completed a standard form of questionnaire in which he gave a negative answer to the question, "Have you ever engaged in homosexual activity (sexual relations with another person of the same sex)?" On August 16, 1976, Mr. Rich underwent a medical examination as part of the enlistment procedure and, pursuant to instructions, he wrote on a medical questionnaire form, "denies drug abuse, alcoholism, homosexuality." Mr. Rich entered on active duty on August 24, 1976. He was first assigned to an abbreviated basic training course and then went to Fort Sam Houston, Texas where he was trained as a medical specialist. During that training period in October, 1976, he was solicited by a male homosexual at an NCO club and discussed homosexuality with that person. That experience started him thinking about his sexual identity and he read extensively about homosexuality.
Mr. Rich was assigned to Fitzsimmons Army Medical Center and experienced health problems arising from his emotional conflict. During a hospitalization for gastrointestinal illness on March 4, 1977, the plaintiff sent for his first sergeant, Shirley Nichols, and told her that he had a problem involving his illness; that he was "gay"; and that he was going to be discharged involuntarily.
Sgt. Nichols had a counselling session with Mr. Rich on March 14, 1977, and at that time the plaintiff told her that he had been a homosexual for a number of years; that he had told this to his mother; that he had no desire to change; and that the "gay" side of his life was totally separate from his military life. The sergeant cautioned Mr. Rich that anything he said could be used against him and that the question of his being discharged was under active review.
On April 29, 1977, Lt. Col. Betty Whitmire, the surgical nursing supervisor on the ward to which Mr. Rich was assigned, was approached by him at a nursing station and at that time Mr. Rich said that he was homosexual and that he would resist any effort by the Army to discharge him. Col. Whitmire directed the wardmaster, Sfc. Hall, to counsel Mr. Rich.
On May 11, 1977, Col. Margaret Phillips, the Chief of the Department of Nursing, wrote to request the company commander of Mr. Rich's company that he be released from duty in the Department of Nursing, effective May 12, 1977, pending his separation from active duty for admitted homosexuality.
The company commander, Capt. Hanke, who had been recently assigned to that position, made a recommendation to the commanding officer of Fitzsimmons Army Medical Center, General Dirks, on May 24, 1977 that the plaintiff be discharged for unsuitability under Chapter 13, AR 635-200. Under the procedure established by that regulation, if the commander does not disapprove a recommendation for separation for unsuitability, he must convene a board of officers to hear and determine the question.
The Chapter 13 procedure also includes a mental status evaluation. Accordingly, a psychiatric evaluation was requested and on May 27, 1977, a psychiatrist interviewed the plaintiff, who refused to answer any potentially incriminating questions on the advice of his civilian attorney. Mr. Rich did say that he was "gay" and was in disagreement with the Army policy of discharging homosexuals. The psychiatrist concluded that there was no evidence of mental illness and no disqualifying mental defects sufficient to warrant disposition through medical channels. The diagnosis was "homosexuality, by history" and the psychiatrist was of the opinion that Mr. Rich was subject to separation on the basis of unsuitability.
On May 27, 1977, General Dirks wrote to the company commander, acknowledging receipt of his recommendation of discharge for unsuitability and suggesting consideration of the applicability of the provisions of Chapter 14, AR 635-200, governing discharge for misconduct-fraudulent entry. The Army regulations in that chapter authorize the involuntary discharge of enlisted personnel for fraudulent entry, which is defined as follows:
Fraudulent entry is the procurement of an enlistment, induction, or period of active service through any deliberate material misrepresentation, omission, or concealment which, if known, might have resulted in rejection. Any incident which meets the foregoing may be cause for discharge for fraudulent entry. (Exhibit V).
The procedure for discharge for fraudulent entry under Chapter 14 begins with action initiated by the unit commander forwarding a military letter to the commander who has general court-martial jurisdiction. In this case, that was General Dirks. The regulation requires that commanding officer to determine whether the fact of fraudulent entry has been completely verified and proven. If further substantiating facts and evidence are required, they must be obtained. If the fraudulent entry is verified, the officer with general court-martial authority may then direct issuance of an honorable discharge or order that a board of officers be convened to determine whether the individual should be discharged. The commander may also direct retention if the individual entered service with a waivable disqualification.
On June 2, 1977, the unit commander issued a formal notification to Mr. Rich that he was being considered for discharge for fraudulent enlistment under Paragraph 14-5g of Chapter 14, AR 635-200. The appropriate information was given to the plaintiff and he was assigned military counsel for his consultation. The plaintiff was also advised that he had three working days within which to submit a statement or other evidence for consideration by the commander of the medical center.
In the recommendation that Roger Rich be considered for discharge under Chapter 14, Capt. Hanke asserted that Mr. Rich deliberately concealed the fact that he was a homosexual at the time of his second enlistment by making false statements on official documents. The company commander referred to the statements to Sgt. Nichols on March 14, 1977 as evidence that Mr. Rich was a homosexual at the time of his entry to service. It was, however, the company commander's recommendation that Mr. Rich be allowed to remain on active duty because of his "job performance and maturity."
On June 6, 1977, the civilian attorney, who is counsel for Mr. Rich in this civil action, wrote to General Dirks, acknowledging that Mr. Rich had received notice of the Chapter 14 proceedings and requesting an extension of time to respond to and including July 7, 1977. As grounds for that request, it was noted that elimination proceedings under Chapter 13 had begun on May 19, 1977 and that the new proceedings were initiated on June 2, 1977, but that notice of them was not served on Mr. Rich until June 6. It was also observed that the notice included thirteen enclosures, some of which were to be disputed. General Dirks replied to this request by a letter to the plaintiff's counsel, dated June 7, 1977, advising that all proceedings under Chapter 13 had been halted and that the time to respond to the proposed discharge action under Chapter 14 was extended to June 15, 1977.
The formal response, dated June 13, 1977 was signed, under oath, by Roger W. Rich and the six-page document also bore the signature of plaintiff's counsel. In the response it was contended that the proceedings under Chapter 14 were improper because Paragraph 14-5 required deliberate misrepresentation or concealment and that it was not until after the enlistment that Mr. Rich's self-identification crystallized to such a degree that he could say that his sexual orientation was homosexual. In explanation of that statement, the sworn statement included this paragraph:
a) Enclosure No. 1 submitted you does bear the words printed by me "denies drug abuse, alcoholism, homosexuality". These words were copied from a blackboard pursuant to the instructions of the recruiting officer. My earlier experience had been heterosexual followed by isolated episodes with my own sex. I had not reached a clear self realization that my sexual orientation was predominately homosexual. I did not make the entries with any deliberate attempt to conceal my "homosexuality" simply because I did not consider myself to be a "homosexual" as defined by the Army. (Exhibit T). (Emphasis added).
The response also included comments on enclosures attached to the unit commander's notice and...
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Rich v. Secretary of the Army
...the enlistment process, he falsely represented that he was not a homosexual. The district court upheld the Army's action. Rich v. Secretary of the Army, 516 F.Supp. 621. Plaintiff THE FACTUAL BACKGROUND Plaintiff enlisted in the Army on February 15, 1968. While on active duty in Europe, he ......