Watkins v. U.S. Army

• Decision Date: 10 February 1988
• Docket Number: No. 85-4006,85-4006
• Citation: 837 F.2d 1428
• Parties: 46 Fair Empl.Prac.Cas. 16, 45 Empl. Prac. Dec. P 37,753, 56 USLW 2470 Sergeant Perry J. WATKINS, Plaintiff-Appellant, v. UNITED STATES ARMY, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1428

837 F.2d 1428

46 Fair Empl.Prac.Cas. 16, 45 Empl. Prac.

Dec. P 37,753,

56 USLW 2470

Sergeant Perry J. WATKINS, Plaintiff-Appellant, v. UNITED STATES ARMY, et al., Defendants-Appellees.

No. 85-4006.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 22, 1987.

Decided Feb. 10, 1988.

James E. Lobsenz, Wolfe & Cullen, Seattle, Wash., for plaintiff-appellant.

E. Roy Hawkens, Asst. U.S. Atty., Civil Div., Washington, D.C., for defendants-appellees.

Appeal from the United States District Court for the Western District of Washington.

Before CANBY, NORRIS and REINHARDT, Circuit Judges.

NORRIS, Circuit Judge:

In August 1967, at the age of 19, Perry Watkins enlisted in the United States Army. In filling out the Army's pre-induction medical form, he candidly marked "yes" in response to a question whether he had homosexual tendencies. The Army nonetheless considered Watkins "qualified for admission" and inducted him into its ranks. Watkins served fourteen years in the Army, and became, in the words of his commanding officer, "one of our most respected and trusted soldiers." Excerpt of Record [ER] at 26d.

Even though Watkins' homosexuality was always common knowledge, Watkins v. United States Army, 551 F.Supp. 212, 216 (W.D.Wash.1982), the Army has never claimed that his sexual orientation or behavior interfered in any way with military functions. ¹ To the contrary, an Army review board found "there is no evidence suggesting that his behavior has had either a degrading effect upon unit performance, morale or discipline, or upon his own job performance." ER at 26c.

In 1981 the Army promulgated new regulations which mandated the disqualification of all homosexuals from the Army without regard to the length or quality of their military service. Pursuant to these new regulations, the Army notified Watkins that he would be discharged and denied reenlistment because of his homosexuality. In this federal court action, Watkins challenges the Army's actions and new regulations on various statutory and constitutional grounds.

I

During Watkins' initial three-year tour of duty, he served in the United States and Korea as a chaplain's assistant, personnel specialist, and company clerk. Even before this tour began, Watkins indicated on his pre-induction medical history form that he had "homosexual tendencies." A year later, in 1968, Watkins told an Army criminal investigation agent that he had been gay since the age of 13 and had engaged in unspecified homosexual acts with two other servicemen. Whether these acts involved sodomy or some other form of sexual conduct is not evident from the record. Although the Army investigated Watkins in 1968 for allegedly committing sodomy, a criminal offense for a soldier, the investigation was dropped for lack of evidence. Despite repeated investigations of Watkins' When his first enlistment expired in 1970, Watkins received an honorable discharge. In 1971 he reenlisted for a second three-year term, at which time the Army judged him to be "eligible for reentry on active duty." In 1972 the Army again investigated Watkins for allegedly committing sodomy and again terminated the investigation for insufficient evidence. In 1974 the Army accepted Watkins' application for a six-year reenlistment.

sexual behavior, his 1968 statement that he engaged in unspecified homosexual acts with two other soldiers is the only evidence before this court of Watkins' actual sexual conduct. See infra at 1430-31 & n. 2.

In 1975 the Army convened a board of officers to determine whether Watkins should be discharged because of his homosexual tendencies. On this occasion his commanding officer, Captain Bast, testified that Watkins was "the best clerk I have known," that he did "a fantastic job--excellent," and that Watkins' homosexuality did not affect the company. A sergeant testified that Watkins' homosexuality was well-known but caused no problems and generated no complaints from other soldiers. The four officers on the board unanimously found that "Watkins is suitable for retention in the military service" and stated, "In view of the findings, the Board recommends that SP5 Perry J. Watkins be retained in the military service because there is no evidence suggesting that his behavior has had either a degrading effect upon unit performance, morale or discipline, or upon his own job performance. SP5 Watkins is suited for duty in administrative positions and progression through Specialist rating." ER at 26c.

In November 1977, the United States Army Artillery Group (the USAAG) granted Watkins a security clearance for information classified as "Secret." His application for a position in the Nuclear Surety Personnel Reliability Program (the PRP), however, was initially rejected because his records--specifically, his own admissions--showed that he had homosexual tendencies. After this initial rejection, Watkins' commanding officer in the USAAG, Captain Pastain, requested that Watkins be requalified for the position. Captain Pastain stated, "From daily personal contacts I can attest to the outstanding professional attitude, integrity, and suitability for assignment within the PRP, of SP5 Watkins. In the 6 1/2 months he has been assigned to this unit SP5 Watkins has had no problems what-so-ever in dealing with other assigned members. He has, in fact, become one of our most respected and trusted soldiers, both by his superiors and his subordinates." ER at 26d. An examining Army physician concluded that Watkins' homosexuality appeared to cause no problem in his work, and the decision to deny Watkins a position in the Nuclear Surety Personnel Reliability Program was reversed.

Watkins worked under a security clearance without incident until he again stated, in an interview on March 15, 1979, that he was homosexual. This prompted yet another Army investigation which, in July 1980, culminated in the revocation of Watkins' security clearance. As Watkins' notification of revocation makes clear, the Army based this revocation on Watkins' 1979 admission of homosexuality, on medical records containing Watkins' 1968 admission of homosexual conduct, and on his history of performing (with the permission of his commanding officer) as a female impersonator in various revues. The Army did not rely on any evidence of homosexual conduct other than Watkins' 1968 admission that he had engaged in unspecified homosexual acts with two other soldiers.

In October 1979, the Army accepted Watkins' application for another three-year reenlistment.

In 1981 the Army promulgated Army Regulation, (AR) 635-200, chpt. 15, which mandated the discharge of all homosexuals regardless of merit. Pursuant to this regulation, a new Army board convened to consider discharging Watkins. Although this board explicitly rejected the evidence before it that Watkins had engaged in homosexual conduct after 1968, ² the board recommended Major General Elton, the discharge authority overseeing the board, approved this finding and recommendation and directed that Watkins be discharged. In addition, Major General Elton, on his own initiative, made an additional finding that Watkins had engaged in homosexual acts with other soldiers. The district court ruled both that Major General Elton lacked the regulatory authority to make supplemental findings, id. at 259, and that the evidence presented at the discharge hearing could not support a specific finding that Watkins had engaged in any homosexual conduct except those unspecified acts to which Watkins admitted in 1968. Id. at 257. The Army has not contested either of these rulings and, on appeal, relies solely on Watkins' 1968 statement as evidence of homosexual conduct.

that Watkins be separated from the service "because he has stated that he is a homosexual."

In May 1982, after the Army board voted in favor of Watkins' discharge, but before the discharge actually issued, the district court enjoined the Army from discharging Watkins on the basis of his statements admitting his homosexuality. Watkins v. United States Army, 541 F.Supp. 249, 259 (W.D.Wash.1982). ³ The district court reasoned that the discharge proceedings were barred by the Army's regulation against double jeopardy, AR 635-200, p 1-19b, because they essentially repeated the discharge proceedings of 1975. ⁴

During oral argument before the district court, counsel for the Army declared that if the Army were enjoined from discharging Watkins, it would deny Watkins reenlistment, pursuant to AR 601-280, p 2-21(c), when his current tour of duty expired in October 1982. ⁵ This reenlistment regulation, which was promulgated in 1981 along with the discharge regulation AR 635-200, chpt. 15, makes homosexuality a nonwaivable disqualification for reenlistment. The district court nonetheless enjoined Watkins' discharge, and the Army fulfilled its promise by rejecting Watkins' reenlistment application "[b]ecause of self admitted homosexuality as well as homosexual acts." ⁶ On October 5, 1982, the district court enjoined the Army from refusing to reenlist Watkins because of his admitted homosexuality, holding that the Army was equitably estopped from relying on AR 601-280, p 2-21(c). Watkins v. United States Army, 551 F.Supp. 212, 223 (W.D.Wash.1982). ⁷ The Army reenlisted Watkins for a six-year term on November 1, 1982, with the proviso that the reenlistment would be voided if the district court's injunction were not upheld on appeal.

While the Army's appeal of the district court injunction was pending, the Army rated Watkins' performance and professionalism. He received 85 out of 85 possible points. See Appendix to Appellant's Brief; Court Record 164, Appendix C. His ratings included perfect scores for "Earns respect," "Integrity," "Loyalty," "Moral Courage," "Self-discipline," "Military Appearance," "Demonstrates Initiative," "Performs under pressure," "Attains results," "Displays sound judgment," "Communicates effectively," ...