591 F.2d 852 (D.C. Cir. 1978), 76-2110, Matlovich v. Secretary of the Air Force

Docket Nº:76-2110.
Citation:591 F.2d 852
Party Name:Dec. P 8710, Leonard P. MATLOVICH, Appellant, v. SECRETARY OF The AIR FORCE and Colonel Alton J. Thogersen, Appellees.
Case Date:December 06, 1978
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 852

591 F.2d 852 (D.C. Cir. 1978)

Dec. P 8710,

Leonard P. MATLOVICH, Appellant,

v.

SECRETARY OF The AIR FORCE and Colonel Alton J. Thogersen, Appellees.

No. 76-2110.

United States Court of Appeals, District of Columbia Circuit

December 6, 1978

Argued May 15, 1978.

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E. Carrington Boggan, New York City, for appellant.

Vincent B. Terlep, Jr., Atty., Civ. Div., Dept. of Justice, Washington, D. C., with whom Earl J. Silbert, U. S. Atty., Barbara Allen Babcock, Asst. Atty. Gen., and Ronald Glancz, Atty., Civ. Div., Dept. of Justice, Washington, D. C., were on the brief, for appellees.

Before WRIGHT, Chief Judge, ROBINSON, Circuit Judge, and DAVIS, Judge, United States Court of Claims. [*]

Opinion for the court filed by Judge DAVIS.

DAVIS, Judge:

In March 1975, appellant Leonard P. Matlovich, after some twelve years of excellent service in the military, wrote to the Secretary of the Air Force, through his commanding officers, that he had concluded that his "sexual preferences are homosexual as opposed to heterosexual." He added that in his view his sexual preferences would in no way interfere with his Air Force duties and that he considered himself fully qualified for further military service. He asked that the provision in AFM 39-12 (Change 4) Oct. 21, 1970, para. 2-103, relating to the discharge of homosexuals be waived in his case. 1 At that time Matlovich was a Technical Sergeant assigned to the

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4510th Support Squadron, Tactical Air Command, Langley Air Force Base, Virginia. His letter triggered an investigation by the Air Force Office of Special Investigation during which appellant provided information concerning his homosexual experiences since 1973; he stated that these were all consensual and occurred in private, while he was off-duty and off-base, with males over twenty-one. He also said that he had had such relations with two other members of the Air Force (one of whom had been discharged by that time), neither of whom had worked for him (he added that "as any responsible NCO (non-commissioned officer) I would always refrain from such a relationship").

As a result of the investigation, involuntary administrative discharge proceedings were begun against Matlovich on the ground of his homosexual activity. An Administrative Discharge Board met in September 1975 and held a four-day hearing at which appellant was represented by counsel. In addition to general testimony on homosexuality, appellant presented evidence on his own service in the Air Force and his ability to continue to give effective service. It was stipulated that he had committed homosexual acts during his current enlistment period. The Board so found and recommended that he be given a general discharge for unfitness, based on his homosexual acts.

Matlovich's commanding officer at Langley Air Force Base 2 accepted the Board's recommendation of discharge but determined that the discharge should be honorable. The Secretary of the Air Force then declined to waive the provisions of AFM 39-12, Supra, and directed that the honorable discharge be executed. This was done on October 22, 1975. 3

Appellant immediately applied to the Air Force Board for the Correction of Military Records (AFBCMR) to overturn his discharge and also amended his complaint below (See note 3) to seek reinstatement, as well as a declaratory judgment that the discharge was invalid. The AFBCMR refused to correct appellant's records and the Secretary of the Air Force adopted that tribunal's findings and recommendations.

Thereafter both sides filed motions for summary judgment in the court below. It was stipulated, among other things, that the Air Force had in the past retained Air Force members on active duty who had engaged in homosexual activity.

After argument, Judge Gesell granted appellees' motion for summary judgment in an oral opinion. He held, first, that there is no constitutional right to engage in homosexual activity; second, that under the standards he deemed to govern judicial review of military determinations there is a rational basis for the Air Force policy of separating airmen found to have engaged in homosexual conduct; and, third, that appellant had not proved that an exception had to be made in his case. At the same time the judge recognized the superior quality of Matlovich's service 4 and expressed

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his personal view that "it would appear that the Armed Forces might well be advised to move toward a more discriminatory and informed approach" to the problem of homosexuality "to approach it in perhaps a more sensitive and precise way."

I

On this appeal from the District Court's award of judgment to the appellees, the parties first present to us the basic issue of whether private consensual homosexual activities between adults is protected by the Constitution. The Government urges that that question has been settled negatively by Doe v. Commonwealth's Attorney, 425 U.S. 901, 96 S.Ct. 1489, 47 L.Ed.2d 751 (1976), summarily affirming 403 F.Supp. 1199 (E.D.Va.1975); that ruling, though summary, is said to be binding on us under the rule of Hicks v. Miranda, 422 U.S. 332, 344-45, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975). Appellant's response is that, after Doe, the Supreme Court indicated that the issue was still open. See Carey v. Population Services Int'l, 431 U.S. 678, 688 n.5, 594 n.17, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977). 5 Appellees' riposte is that the reference in Carey to private consensual sexual behavior was confined by its context though not in terms to heterosexual conduct. Appellant insists, in turn, that the Court meant everything it said.

II

We do not reach these questions because a narrower problem looming before us requires remand of this case to the Air Force, and after further action by that Service renewed consideration by the District Court. The Air Force regulation expressly contemplates that exceptions can be made to the general policy of separating homosexuals (See note 1, Supra ), and the record shows that the Air Force has in the past retained members on active duty who had engaged in homosexual activity. With respect to Matlovich the Air Force said that it had considered whether to make an exception in his case but had decided against it. But what disturbs us is that it is impossible to tell on what grounds the Service refused to make an exception or how it distinguished this case from the ones in which homosexuals have been retained. The regulation (AFM 39-12, para. 2-103) gives only the most general of guidance when it limits exceptions to those "where the most unusual circumstances exist and provided that the airman's ability to perform military service has not been compromised." Also, "an exception is not warranted Simply because the airman has extensive service" (emphasis added) or because of intoxication. No other pertinent standards are laid down. 6

In this instance the Administrative Discharge Board was given by its Legal Advisor only the most general of instructions on this point. After paraphrasing the exception provision of the regulation, the Legal Advisor said: "What constitutes most unusual circumstances cannot be defined with any great degree of precision. It must be based upon your experience with human nature, your understanding of the orderly conduct of the affairs of man, the very nature of the military environment as a separate and distinct segment of society with the full knowledge that military members are governed by a more strict set of rules of conduct and standards than is required and expected of the general public. The same rules apply to your understanding of what constitutes compromise of a military member's ability to perform military service. You must consider all these factors that have been legally presented to you during this hearing." No more light is shed by the Administrative Discharge Board's conclusory finding, without any real explanation, that no exception should be made.

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The Correction Board is similarly unrevealing. It recognized that Matlovich had had an "outstanding" record but it then concluded summarily without saying what was lacking that that was not enough. The board went so far as to say that even if unusual circumstances existed that would not require retention; the existence of unusual circumstances "merely permits the retention if the service considers such action appropriate." Obviously, the board did not consider such action "appropriate" here but it gives no hint why it would not be appropriate to retain appellant. The board merely concludes "that an outstanding military record without other unusual circumstances is not sufficient basis to compel a member's retention" and that the discharge board and the Secretary acted fairly.

In confirming the Correction Board's determination, the Secretary of the Air Force likewise said that an outstanding record was not enough and found no other "unusual circumstances" but, again, he gave no hint (aside from a reference to instances involving intoxication, young airmen, and undue influence of a superior) what "unusual circumstances" there could be or what was missing in Matlovich's case.

What we have, then, is a serviceman with an admittedly outstanding record of considerable duration, 7 with minimal sexual involvement with Air Force personnel and none with those with whom he worked and with substantial testimony that the Air Force community would be able to accept his homosexuality. Neither the Correction Board nor the Secretary (in confirming that board) suggested that his ability to perform military service had been compromised, and we do not understand the Administrative Discharge Board to have made such a finding either. What is missing, the Air Force says, are the "unusual circumstances" which have to exist to warrant retention even if the other conditions are satisfied. But what are "unusual circumstances," or what they have...

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