668 F.Supp. 11 (D.D.C. 1987), Civ. A. 85-3193, Gay Veterans Ass'n, Inc. v. Secretary of Defense

Docket Nº:Civ. A. 85-3193
Citation:668 F.Supp. 11
Party Name:Gay Veterans Ass'n, Inc. v. Secretary of Defense
Case Date:July 29, 1987
Court:United States District Courts, District of Columbia
 
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668 F.Supp. 11 (D.D.C. 1987)

GAY VETERANS ASSOCIATION, INC., et al., Plaintiffs,

v.

SECRETARY OF DEFENSE, et al., Defendants.

Civ. A. No. 85-3193.

United States District Court, District of Columbia.

July 29, 1987

Michael J. McDanold, Reynolds, Allen & Cook, and Barton F. Stichman, Donald Squires, Vietnam Veterans of America Legal Services, Washington, D.C., for plaintiffs.

Vincent M. Garvey, James A. Gardner, Civ. Div., Dept. of Justice, Washington, D.C., for defendants.

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OPINION

JUNE L. GREEN, District Judge.

Plaintiffs bring this action on their own behalf and on behalf of similarly situated current and former members of the United States Armed Forces to challenge defendants' policies and practices with regard to the creation, maintenance, and public disclosure of records reflecting that the military service of plaintiffs was less than honorable. Specifically, plaintiffs challenge the scope of defendants' authority to issue any less-than-honorable characterization of the quality of military service with respect to discharge for homosexuality or homosexual conduct. Plaintiffs note emphatically that they do not here challenge the right of the military departments to separate personnel for homosexuality. Cf. Dronenburg v. Zech, 741 F.2d 1388, 1397 (D.C.Cir.), reh'g en banc denied, 746 F.2d 1579 (1984).

The parties have filed cross-motions for summary judgment. There being no dispute as to the material facts of this case, the Court will grant judgment in defendants' favor, on every count except as to plaintiff Doe's third claim. The Court earlier denied without prejudice plaintiffs' motion for class certification. Gay Veterans Association, Inc. v. Secretary of Defense, No. 85-3193, slip op. at 2-3 (D.D.C. Mar. 25, 1987) [Available on WESTLAW, DCT database]. The Court will not disturb that determination.

I. Factual Background

A. The Discharge Scheme

Department of Defense regulations codified at 32 C.F.R. Part 41 govern the standards and procedures by which personnel are administratively discharged from military service and by which the quality of their service is characterized. These regulations require that upon separation from the military, all personnel shall be issued a discharge certificate that grades the quality of service on one of three levels: Honorable, General (or Under Honorable Conditions), and Undesirable (or Under Other Than Honorable Conditions).

Two additional types of discharge certificates are the Bad Conduct Discharge ("BCD") and the Dishonorable Discharge ("DD"). These discharge certificates are authorized by the Uniform Code of Military Justice ("UCMJ"), 10 U.S.C.§§ 801 et seq., and can only be imposed by sentence of a general or special court-martial.

B. Plaintiffs

Each of the named individual plaintiffs served on active duty as a member of the United States Armed Forces, and upon separation from military duty, each was issued a less than honorable discharge. These plaintiffs allege that the sole basis for this characterization of military service is defendants' conclusion that these veterans had homosexual tendencies, engaged in homosexual conduct, or were homosexual at some point during their military service. Each individually named plaintiff applied subsequently to either a Discharge Review Board ("DRB") or a Board for Correction of Military Records ("BCMR") for an upgrade in the characterization of their discharge to Honorable, and each was denied such relief.

Plaintiff Walter Clark was separated from the Air Force in 1957 for homosexuality, and issued an Undesirable Discharge. Complaint, ¶ 24. During his period of service, Mr. Clark received low efficiency ratings and a summary court-martial conviction for driving while intoxicated. Plaintiffs' Exhibit 13, Record of Proceedings at 3. Mr. Clark applied voluntarily for a discharge in lieu of a hearing with the understanding that if his application for discharge were approved, he might be discharged under other-than-honorable conditions. Id.

On August 15, 1979, Mr. Clark applied to the Air Force DRB for recharacterization of his discharge to Honorable. On February 5, 1980, the DRB, following the discharge standards then in effect, denied the application. Plaintiffs' Exhibit 13. In December 1980, Mr. Clark applied to the Air Force BCMR for further review of his discharge. In February 1981, the BCMR upgraded Mr. Clark's discharge to General,

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denying his request for a full upgrade to Honorable. The BCMR applied the discharge characterization standards then in effect but made no finding that Mr. Clark's alleged homosexuality affected his performance of military duties. Plaintiffs' Statement of Material Facts Not in Dispute ("Plaintiffs' Statement"), ¶ 12.

Plaintiff Janet Black was separated from the Air Force for homosexuality in 1953, and issued an Undesirable Discharge. Complaint, ¶ 27. During her period of service, Ms. Black received three summary court-martial convictions and performed poorly in technical school. Plaintiffs' Exhibit 14, Air Force DRB Decisional Rationale, Findings. Ms. Black agreed to accept an Undesirable Discharge for the good of the service in lieu of further adverse action. Id.

In 1981, Ms. Black petitioned the Air Force DRB for recharacterization of her discharge to Honorable. This request was denied in 1982, whereupon Ms. Black applied to the BCMR for the same relief. The BCMR applied the discharge characterization then in effect and denied Ms. Black's application in October 1984. The BCMR made no finding that Ms. Black's homosexual conduct affected her performance of military duties. Plaintiffs' Statement, ¶ 14.

Plaintiff Lilli M. Vincenz was separated from the Army in 1963, and received a General Discharge. Complaint, ¶ 30. During her period of service, Ms. Vincenz engaged in homosexual liaisons with other service members, including one encounter on post during which she was observed by her roommate. Plaintiffs' Exhibit 15, Statement of Private Patricia J. Clancy; id., Statement of Ms. Vincenz. Ms. Vincenz waived any hearing before a board of officers and accepted her discharge. Id.

In 1981, Ms. Vincenz applied to the Army BCMR for recharacterization of her discharge to Honorable. The BCMR applied the discharge characterization standards then in effect and denied Ms. Vincenz's application in August 1982. Plaintiffs' Exhibit 15. The BCMR made no finding that Ms. Vincenz's homosexual conduct affected adversely her performance of military duties. Id.

Plaintiff John Doe was separated from the Navy for homosexuality in 1958, and issued a General Discharge. Complaint, ¶ 32. One week after his enlistment, Doe admitted that he was a homosexual. Defendants' Statement of Undisputed Material Facts ("Defendants' Statement"), ¶ 7. 1 Doe did not mention this fact when he enlisted. Id.

In September 1981, Doe applied to the Naval BCMR for recharacterization of his discharge to Honorable. The BCMR applied the discharge characterization standards then in effect and denied Doe's application in July 1982. The BCMR made no finding that Doe's pre-service homosexual conduct affected his performance of military duties. Plaintiffs' Statement, ¶ 15.

Organizational plaintiff National Gay Task Force ("NGTF") is a nonprofit organization created for the purpose of advancing the rights and protecting the interests of individuals who are gay or lesbian. Complaint, ¶ 7. Plaintiffs allege that there are over 10,000 members of NGTF, many of whom are currently serving in the United States Armed Forces. Id.

Organizational plaintiff Gay Veterans Association, Inc. ("GVA") is a nonprofit corporation created for the purpose of advancing the rights and protecting the interests of individuals who are gay or lesbian and who have served, or are now serving, in the United States Armed Forces. Complaint, ¶ 2. Many of GVA's members have received discharges for homosexual conduct, homosexuality, homosexual "tendencies," or consented to resign in lieu of court-martial proceedings. Id.

II. Discussion

Plaintiffs' first claim is that defendants do not have statutory or constitutional authority

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to characterize administratively the service of personnel discharged from military service. Complaint, ¶ ¶ 17-20. In the alternative that the Court rejects plaintiffs' first claim, claims 2, 4, and 5 are offered to challenge defendants' regulations that permit a less-than-honorable characterization of service for those discharged for homosexuality, homosexual conduct, or homosexual tendencies without regard to whether the offending activity or status had an adverse impact on performance of military duties or the service in general. Complaint, ¶ ¶ 21-45, 48-52. In their third claim, the individual plaintiffs challenge the DRB and BCMR decisions in their cases on the ground that the DRB's and BCMR's failed to find any adverse impact on performance of military duties attributable to homosexual behavior. Complaint, ¶ ¶ 21-47.

A. Subject Matter Jurisdiction

Defendants argue as a threshold matter that plaintiffs lack standing, that this case is not ripe for judicial action, and that plaintiffs have failed to exhaust their administrative remedies. Defendants' jurisdictional argument is nothing less than disingenuous.

The Court resolved these issues in Bittner v. Secretary of Defense, 625 F.Supp. 1022 (D.D.C.1985) (" Bittner "). Plaintiffs, represented by the same attorneys as in Bittner, filed subsequently the present action. The Court observed that the two actions resembled each other in almost every respect. Plaintiffs conceded this point and the Court issued an order dated December 10, 1985, dismissing Bittner for reasons of judicial economy. The order stated further that the various issues decided in Bittner would have a binding effect on the parties to this action. No objection was raised by defendants.

B. Defendants Possess Sufficient Authority to Characterize...

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