850 F.2d 764 (D.C. Cir. 1988), 87-5349, Gay Veterans Ass'n, Inc. v. Secretary of Defense

Docket Nº:87-5349.
Citation:850 F.2d 764
Party Name:GAY VETERANS ASSOCIATION, INC., et al., Appellants v. SECRETARY OF DEFENSE, et al.
Case Date:June 28, 1988
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
FREE EXCERPT

Page 764

850 F.2d 764 (D.C. Cir. 1988)

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

v.

SECRETARY OF DEFENSE, et al.

No. 87-5349.

United States Court of Appeals, District of Columbia Circuit.

June 28, 1988

Argued May 6, 1988.

Page 765

Susan D. Bennett, with whom Michael J. McDonald, Barton F. Stichman, Arthur B. Spitzer and Elizabeth Symonds, Washington, D.C., were on the brief, for appellants.

E. Roy Hawkens, Atty., Dept. of Justice, with whom John R. Bolton, Asst. Atty. Gen., Jay B. Stephens, U.S. Atty. and Anthony J. Steinmeyer, Atty., Dept. of Justice, Washington, D.C., were on the brief, for appellees.

Before WALD, Chief Judge, SILBERMAN, Circuit Judge, and PARKER, [*] Senior District Judge for the United States District Court for the District of Columbia.

Opinion Per Curiam.

PER CURIAM:

Plaintiffs Janet Black, Lilli Vincenz, and Walter Clark, Jr., were discharged as Class II Homosexuals during the late 1950s and early 1960s. Though they accept the validity of the discharges, 1 they now appeal from the district court's decision affirming the military's refusal to upgrade the status of their discharges to Honorable 668 F.Supp. 11. Specifically, appellants contest as contrary to case law the current discharge regulations--as applied retrospectively through the administrative process of discharge review--which allegedly allow the military to issue less than Honorable discharges to servicemembers separated for homosexual conduct even though that conduct is not shown to have affected their performance of military duties.

Because neither the express language of the regulations, nor their application to plaintiff-appellants, violates decisional law, we affirm the district court's decision.

  1. BACKGROUND

    1. Regulations

      Military Regulation 32 C.F.R. Part 41, App. A, Part 2.C.2.a.1. instructs the military to characterize discharges on the basis of the quality of the separated persons' service records. Part 2.C.2.a. must be read in its entirety:

      (1) Characterization at separation shall be based upon the quality of the member's service, including the reason for

      Page 766

      separation and guidance in paragraph C.2.b. below [see infra ], subject to the limitations set forth under various reasons for separation in Part 1. The quality of service will be determined in accordance with standards of acceptable personal conduct and performance of duty for military personnel. These standards are found in the 10 U.S.C., Sections 801-940, UCMJ, directives and regulations issued by the Department of Defense and the Military Departments, and the time-honored customs and traditions of military service.

      (2) The quality of service of a member on active duty or active duty for training is affected adversely by conduct that is of a nature to bring discredit on the Military Services or is prejudicial to good order and discipline, regardless of whether the conduct is subject to UCMJ jurisdiction. Characterization may be based on conduct in the civilian community, and the burden is on the respondent to demonstrate that such conduct did not adversely affect the respondent's service.

      32 C.F.R. Part 41, App. A, Part 2.C.2.a.

      Presently, discharge certificates fall into three grades: (1) Honorable; (2) General (or Under Honorable Conditions); and (3) Undesirable (Under Other Than Honorable Conditions). 2 Selection of a proper grade centers on a member's quality of service, which, in turn, involves reference to "standards of acceptable personal conduct and performance of duty...." Id. That assessment is adversely affected by conduct that is disruptive or discrediting to the military. See id. at Part 2.C.2.a.2. Part 2.C.2.a.2.--which appellants attack now on appeal--asserts that "conduct that is of a nature to bring discredit on the Military Services or is prejudicial to good order and discipline" adversely affects the servicemember's record.

      Part 2.C.2.b., which immediately follows the above regulatory provisions, continues to specify how each discharge characterization corresponds to varying...

To continue reading

FREE SIGN UP