Watkins v. United States Army

• Decision Date: 28 October 1982
• Docket Number: No. C81-1065R.,C81-1065R.
• Citation: 551 F. Supp. 212
• Parties: Sergeant Perry WATKINS, Plaintiff, v. UNITED STATES ARMY, et al., Defendants.
• Court: U.S. District Court — Western District of Washington

551 F. Supp. 212

Sergeant Perry WATKINS, Plaintiff, v. UNITED STATES ARMY, et al., Defendants.

No. C81-1065R.

United States District Court, W.D. Washington.

October 5, 1982.

Opinion on Renewed Motion for Summary Judgment October 28, 1982.

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James E. Lobenz, American Civil Liberties Union of Washington, Seattle, Wash., for plaintiff.

Stanley E. Alderson, Dept. of Justice, Washington, D.C., Christopher L. Pickrell, Asst. U.S. Atty., Seattle, Wash., for defendants.

MEMORANDUM OPINION AND ORDER

ROTHSTEIN, District Judge.

THIS MATTER is before the court on the parties' cross motions for summary judgment. At issue is whether the United States Army may deny reenlistment to plaintiff based on plaintiff's admitted homosexuality. On May 18, 1982 the court ruled that the Army could not, under its own regulations, validly discharge plaintiff on grounds of homosexuality. 541 F.Supp. 249. The undisputed facts that provided the foundation for that ruling are also controlling here:

On August 27, 1967 plaintiff reported to an Army facility for his preinduction physical examination. On a Report of Medical History plaintiff checked the box "YES" indicating that he then had homosexual tendencies or had experienced homosexual tendencies in the past. Transcript of Proceedings Before Administrative Discharge Board, October 28 & 29, 1981 (Tr.) at Inclosure 7. A psychiatrist evaluated plaintiff and found him "qualified for admission." Id. Following induction and training, plaintiff served in the United States and Korea as a chaplain's assistant, personnel specialist, and company clerk. Defendants' Memorandum in Support of Motion for Summary Judgment on Discharge Issue, at 3. While at Fort Belvoir, Virginia in November 1968, plaintiff stated to an Army Criminal Investigation Division agent that he had been homosexual since the age of 13 and had engaged in homosexual relations with two servicemen. Tr. at Inclosure 9. The investigation of plaintiff for committing sodomy, a criminal offense under Article 125 of the Uniform Code of Military Justice, was dropped because of insufficient evidence. Tr. at Inclosure 10, at 2. Plaintiff received an honorable discharge from the Army on May 8, 1970 at the conclusion of his tour of duty. Official Military Personnel File at 47. His reenlistment eligibility code was listed as "unknown." Id.

In May 1971 plaintiff requested correction of the reenlistment designation in his release papers, and on June 3 the Army notified him that his reenlistment code had been corrected to category 1, "eligible for reentry on active duty." Id. at 48. On June 18 plaintiff reenlisted for a period of three years. Id. at 56. During the fall of 1971, with the permission of the acting commanding officer of his unit, plaintiff performed an entertainment act as a female impersonator before the troops at a celebration of Organization Day for the 56th Brigade. Amended Complaint ¶ 19. Plaintiff's performance was reported in the December 1, 1971 issue of Army Times, a publication distributed to Army personnel worldwide. Id. ¶ 20. In the spring of 1972, plaintiff performed as a female impersonator at the Volks Festival in Berlin, West Germany, with the express permission of his commanding officer. Id. ¶ 22. In January 1972 plaintiff was denied a security clearance based on his November 1968 statements concerning his homosexuality. Military Intelligence File at 22.

Following an honorable discharge on March 21, 1974, plaintiff reenlisted for six years and was subsequently reassigned to South Korea as a company clerk. Official Military Personnel File at 65. In October 1975 plaintiff's commander initiated elimination proceedings against plaintiff for unsuitability due to homosexuality pursuant to AR 635-200, Chapter 13. On October 14, 1975 a four member board convened at Camp Mercer, South Korea and heard testimony indicating that plaintiff was homosexual. Military Intelligence File at 84. Captain Albert J. Bast III testified that as plaintiff's commander he had discovered, through a background records check, that plaintiff had a history of homosexual tendencies. When Bast asked plaintiff about it, plaintiff stated that he was homosexual. Id. at 85. Bast testified further that plaintiff was "the best clerk I have known," and that plaintiff's homosexuality did not affect the company. Id. First Sergeant Owen Johnson testified that everyone in the company knew that plaintiff was homosexual and that plaintiff's homosexuality had not caused any problems or elicited any complaints. Id. at 86. The board made the following unanimous finding: "SP5 Perry J. Watkins is suitable for retention in the military service." Id. at 87. The board's recommendation was that plaintiff "be retained in the military service," and that plaintiff was "suited for duty in administrative positions and progression through Specialist rating." Id. The board's recommendation became the final decision of the Secretary. Defendant's Memorandum on Discharge Issue, at 6.

Following an assignment in the United States as a unit clerk, plaintiff was reassigned to Germany, where he served as a clerk and a personnel specialist with the 5th United States Army Artillery Group. In November 1977 the commander of the 5th USAAG granted plaintiff a security clearance for information classified as "Secret." Id. at 14. Thereafter plaintiff applied for a position in the Nuclear Surety Personnel Reliability Program, which required an applicant to have a security clearance for information classified as "Secret" and to pass a background investigation check. Amended Complaint ¶ 28. Plaintiff was initially informed that, because his medical records showed he had homosexual tendencies, he was ineligible for a position in the program. Defendants' Memorandum at 5 n. 1; Amended Complaint ¶ 29. Plaintiff appealed. Id. ¶ 30. In support of his appeal plaintiff's commanding officer, Captain Dale E. Pastian, requested that plaintiff be requalified because plaintiff had been medically cleared, because of plaintiff's "outstanding professional attitude, integrity, and suitability for assignment" in the program, and because the 1975 Chapter 13 board recommended that plaintiff be retained and be allowed to progress in the military. Military Intelligence File at 68. Examining physician Lieutenant Colonel J.C. De Tata, M.D., concluded that plaintiff's homosexuality appeared to cause no problems in his work and noted that plaintiff had been through a Chapter 13 board "with positive results." Id. at 70. The decision to deny plaintiff's eligibility for the Nuclear Surety Program was reversed and plaintiff was accepted into the program in July 1978. Id. at 64.

On October 26, 1979 plaintiff was permitted to reenlist for a three year term. By letter dated December 18, 1979 the commander of the U.S. Army Personnel Clearance Facility notified plaintiff of the Army's intent to revoke his security clearance. Id. at 12. The letter stated that revocation was being sought "because during an interview on 15 March 1979, you stated that you have been a homosexual for the past 15 to 20 years." Id. Plaintiff submitted a rebuttal letter on May 29, 1980 admitting making that statement. Id. at 8. The commanding officer of the Central Security Facility revoked plaintiff's security clearance by letter dated July 10, 1980. Id. at 6.

In February 1981 plaintiff appealed the revocation to the Office of the Assistant Chief of Staff for Intelligence. Amended Complaint, Exhibit J-2. The Assistant Chief of Staff's Office stayed action on plaintiff's appeal pending the determination whether separation proceedings under Chapter 15 would be commenced. Declaration of Ronald W. Morgan, filed April 12, 1982. Plaintiff brought this action on August 31, 1981 challenging the revocation of his security clearance because he had admitted to being homosexual and seeking to prevent his discharge from the Army for homosexuality.

Separation proceedings were commenced under Chapter 15. An administrative discharge board recommended, 2-1, that plaintiff be given an honorable discharge, and plaintiff's commanding officer approved that recommendation. The court ruled that the Army's administrative double jeopardy provision precluded plaintiff's discharge on grounds that he had admitted to being homosexual. The court also ordered briefing on the reenlistment issue, which had been raised by the pleadings.

The Army maintains that plaintiff's reenlistment claim lacks merit because (1) the Army's decision to deny reenlistment is not subject to judicial review; (2) plaintiff's claim is one of promissory estoppel and therefore barred against the United States; (3) even if viewed as an equitable estoppel claim, plaintiff's claim must be barred because the United States acts in its sovereign capacity when it reenlists soldiers; and (4) the facts of this case do not support an equitable estoppel claim against the United States.

I. JUDICIAL REVIEW

The court does not agree that judicial review is inappropriate. Plaintiff alleges that denial of reenlistment based on his admitted homosexuality violates the Constitution, and that military regulations should not be applied so as to deny him reenlistment.

Plaintiff has exhausted effective intraservice remedies. On July 26, 1982 plaintiff submitted a timely application for reenlistment to his commanding officer, Captain Rodger L. Scott. Captain Scott requested an interview with plaintiff pursuant to Army procedures. Since plaintiff's counsel was unable to be present on the date set for the interview, counsel instructed plaintiff to refuse to answer questions concerning this lawsuit. See Affidavit of Jim Lobsenz (filed Sept. 14, 1982); Declaration of Captain Rodger L. Scott (filed Sept. 13, 1982); Declaration of Captain Russell D. Johnson (filed Sept. 24, 1982). Plaintiff's counsel did not indicate that plaintiff would refuse to answer questions at an...