735 F.2d 1220 (10th Cir. 1984), 81-1795, Rich v. Secretary of the Army

Docket Nº:81-1795.
Citation:735 F.2d 1220
Party Name:Roger W. RICH, Plaintiff-Appellant, v. SECRETARY OF THE ARMY, Major General Kenneth R. Dirks, M.D., Former Commander; Philip A. Deffer, M.D., Brigadier General, Defendants-Appellees.
Case Date:June 01, 1984
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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735 F.2d 1220 (10th Cir. 1984)

Roger W. RICH, Plaintiff-Appellant,

v.

SECRETARY OF THE ARMY, Major General Kenneth R. Dirks, M.D.,

Former Commander; Philip A. Deffer, M.D.,

Brigadier General, Defendants-Appellees.

No. 81-1795.

United States Court of Appeals, Tenth Circuit

June 1, 1984

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Richard D. Rosen, Captain, JAGC, Dept. of the Army, Washington, D.C. (Arnold I. Melnick, Colonel, JAGC, and M. Scott Magers, Lieutenant Colonel, JAGC, Dept. of the Army, Washington, D.C., of counsel and were also on brief), for defendants-appellees.

Before SETH, Chief Judge, and BREITENSTEIN and HOLLOWAY, Circuit Judges.

HOLLOWAY, Circuit Judge.

In this suit the plaintiff, an army medical specialist, challenges his involuntary discharge from the Army. The Army honorably discharged plaintiff for fraudulent enlistment when it was learned that, in 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 appeals.

I

THE FACTUAL BACKGROUND

Plaintiff enlisted in the Army on February 15, 1968. While on active duty in Europe, he married a woman from Turkey, and she bore him a son. When he returned to the United States, his family did not accompany him. At the end of his active

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duty in February 1971, he was transferred to the Army Reserves from which he was honorably discharged on February 1, 1974.

After release from active duty plaintiff became licensed as a practical nurse. In August of 1976, several months after receiving the tragic news that his wife and son were killed in an automobile accident in Western Europe, plaintiff applied for a second enlistment in the Army.

As part of the reenlistment process plaintiff responded in the negative to the question, "[h]ave you ever engaged in homosexual activity (sexual relations with another person of the same sex)?" Exhibit C at 113. Following a standard enlistment medical examination, pursuant to instructions, plaintiff wrote on a questionaire form, "denies drug abuse, alcoholism, homosexuality." Defendants' Exhibit B.

In late August 1976 plaintiff went on active duty. After assignment to Fitzsimmons Army Medical Center, an emotional crisis stemming from confusion regarding his sexual identity produced health problems. On March 4, while plaintiff was hospitalized for a gastrointestinal illness, he told his first sergeant, Shirley Nichols, that he was "gay" and that he was to be involuntarily discharged. On March 14, 1977, plaintiff had a counseling session with Sergeant Nichols. He "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." 516 F.Supp. at 623; Defendants' Exhibit D. On April 29, plaintiff approached his surgical nursing supervisor, Lt. Col. Betty Whitmire, and announced to her in the presence of patients and staff, that he was homosexual, and would resist efforts to discharge him. Defendants' Exhibit M (sworn statement of Betty Whitmire); Defendants' Exhibit J, at 3 (letter of SFC. Hall, wardmaster).

In late May, word of the foregoing events reached General Dirks--the commanding officer of Fitzsimmons Army Medical Center. General Dirks received a recommendation that plaintiff be discharged for unsuitability under Chapter 13. Army Reg. 635-200 ch. 13. In addition to a hearing the Chapter 13 proceedings required a mental status evaluation. Plaintiff admitted that he was "gay" to the psychiatrist, but he said that he disagreed with the Army policy of discharging homosexuals. The psychiatrist diagnosed "homosexuality by history," and recommended that plaintiff be discharged for unsuitability.

On May 27, 1977 General Dirks wrote the company commander explaining the psychiatrist's recommendation and suggesting that plaintiff be discharged under Chapter 14, Army Reg. 635-200 ch. 14 (1973), rather than Chapter 13. Chapter 14 permits dismissal for fraudulent entry which is defined as the procurement of entry "through any deliberate material misrepresentation, omission, or concealment which if known, might have resulted in rejection." Defendants' Exhibit V; Army Reg. 635-200 ch. 14 p 14-5 (1973).

The Army chose to discontinue Chapter 13 proceedings and pursue the matter under Chapter 14. In an effort to demonstrate that there was no deliberate misrepresentation or concealment, plaintiff argued that his sexual identity did not crystallize until after enlistment. Because his earlier admissions appeared inconsistent with this position, plaintiff submitted a sworn statement in which he said: "My earlier experience had been heterosexual followed by isolated episodes with my own sex." Defendants' Exhibit T. In this statement, plaintiff admitted that he had told Sergeant Nichols that he was "gay," but he sought to explain this by asserting that he meant to convey that he was not a practicing homosexual, but "had been of undetermined sexual orientation for some time." Rich, supra, 516 F.Supp. at 625; Defendants' Exhibit T. On June 15, 1977, General Dirks directed that plaintiff be honorably discharged under Chapter 14 because he had fraudulently denied homosexuality in the enlistment process.

Plaintiff brought suit seeking damages and injunctive and declaratory relief. After

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a three-day trial, the district court entered judgment for the defendants. The trial judge made some alternative findings and conclusions in dealing with the factual disputes about the fraudulent enlistment issue. He first found that "[t]here is, therefore, substantial evidence to support General Dirks' decision that there was deception in this enlistment process and that in August, 1976, Mr. Rich was a homosexual who had committed homosexual acts." 516 F.Supp. at 628. The judge also, however, discussed plaintiff's argument that his discharge on the basis of his statements of sexual preference, without proof of homosexual conduct near the time of his second enlistment, was punishment for status. The judge reasoned that the justifications for exclusion of homosexuals apply regardless of the level of sexual activity involved; that the Army's position was based on governmental interests in discipline and morale which apply as equally to declamations as to deeds; and that the constitutional analysis, see also Beller v. Middendorf, 632 F.2d 788, 806 (9th Cir.1980), cert. denied, 452 U.S. 905, 101 S.Ct. 3030, 69 L.Ed.2d 405 (1981) (plaintiff Beller), 454 U.S. 855, 102 S.Ct. 304, 70 L.Ed.2d 150 (1981) (plaintiff Miller) on conflicting individual and governmental interests is applicable in the instant case.

The trial judge added that "[t]he most that can be said in this case is that the admissions of the plaintiff were an inadequate basis for finding him guilty of deliberate falsification in his denial of homosexuality and homosexual conduct in the enlistment process," 516 F.Supp. at 628, but that this would not afford any basis for relief. If the Chapter 14 fraudulent enlistment discharge was not valid, plaintiff would immediately be subject to discharge under Chapter 13 for unsuitability in any event so that plaintiff was entitled to no relief.

On appeal, plaintiff urges numerous interrelated grounds for reversal, making five general arguments: (1) the Army did not follow its own regulations in discharging him; (2) the discharge procedures did not comport with procedural due process; (3) the discharge violated his substantive due process rights; (4) the discharge violated his constitutional right to privacy and his rights under the First Amendment; and (5) the discharge violated his rights under the equal protection component of the Fifth Amendment.

II

THE FRAUDULENT ENTRY ISSUE

Plaintiff argues that the Army did not follow its own regulations in discharging him for fraudulent entry.

Army regulations define fraudulent entry as procuring "an enlistment, induction or other active service through any deliberate material misrepresentation, omission or concealment which, if known, might have resulted in rejection." Army Reg 635-200 ch. 14 p 14-5 (1973). Sexual perversion is a non-waivable moral and administrative disqualification. Defendants' Exhibit AA; Army Reg. 601-210 (Appendix A) (1975). 1 The district court found that

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this was the justification for requiring applicants to deny homosexuality and homosexual acts in the application process. 516 F.Supp. at 626. Moreover, homosexuality...

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