Adkins v. United States Navy

• Decision Date: 13 February 1981
• Docket Number: Civ. A. No. C-81-3.
• Parties: Kevin S. ADKINS, Petitioner, v. The UNITED STATES NAVY and Captain J. E. Simpson, II, Commander, Nas., Corpus Christi, Respondents.
• Court: U.S. District Court — Southern District of Texas

507 F. Supp. 891

Kevin S. ADKINS, Petitioner, v. The UNITED STATES NAVY and Captain J. E. Simpson, II, Commander, Nas., Corpus Christi, Respondents.

Civ. A. No. C-81-3.

United States District Court, S. D. Texas, Corpus Christi Division.

February 13, 1981.

R. Charles Johnson, San Anselmo, Cal., c/o LTJG Gutierrez, Legal Services Office, NAS Corpus Christi, Tex., for petitioner.

Robert A. Darden, Asst. U. S. Atty., Houston, Tex., Commander Harold E. Grant, NAS Corpus Christi, Tex., for respondents.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

KAZEN, District Judge.

Petitioner, Kevin S. Adkins, a member of the United States Navy, is currently facing court-martial on charges of unauthorized absence. On January 12, 1981, the Petitioner filed this action seeking immediate release from the Navy on the grounds that it has violated its own regulations by retaining him in the military and processing him for court-martial. Federal jurisdiction is predicated under the general habeas corpus statute. See 28 U.S.C. § 2241(a) (1976). A hearing was held on the Petitioner's Motion for a Temporary Restraining Order on January 16, 1981. At that hearing, the Navy agreed to suspend imposition of any court-martial sentence pending an ultimate ruling by the Court. At the same hearing, the Navy was ordered to show cause why the writ should not be issued. Id. § 2243. A full evidentiary hearing was duly held on January 29, 1981. In accordance with Rule 52(a) of the Federal Rules of Civil Procedure, this Court now enters the following findings of fact and conclusions of law. Fed.R.Civ.P. 52(a).

Findings of Fact

1. The Petitioner decided to enlist in the United States Navy sometime in the summer of 1978. In preparation for entering the service, he had at least two conversations with his recruiter, Chief Petty Officer Larry Northcutt. During the course of these conversations, Petitioner told Northcutt that he had previously been arrested for possession of marijuana but had not been convicted. The necessary forms were completed. (Plaintiff's Exhibits 8 and 9). As completed, the forms were truthful. At least three seemingly important parts of the form were left blank, however. (See Part IV, Plaintiff's Exhibit 9). These parts were certifications that the applicant had not abused narcotics, dangerous drugs, nor marijuana within certain time periods. Although Mr. Northcutt expressed the opinion that completion of these parts was not required for some reason, the applicable regulations indicate the contrary. (See ¶ 2-II-8e(1), Plaintiff's Exhibit 12). Nevertheless, the evidence at trial only tended to establish that Petitioner had used marijuana and amphetamines sometime in the past. Accordingly, he would have been eligible for enlistment, probably even without a waiver. (See ¶ 2-II-8d, Plaintiff's Exhibit 12). Before Petitioner Adkins was accepted into the service, his application went through at least three tiers of scrutiny.

2. Petitioner was under the age of eighteen years old at the time of his enlistment. His mother duly signed all necessary documents and he took the oath of allegiance freely and voluntarily. See generally 10 U.S.C. § 505 (1976).

3. Petitioner originally enlisted in the Navy in July, 1978, under the delayed entry plan. He did not begin active duty until September, 1978. At that time, he went through boot camp as well as special training. He was, however, dropped from a course on submarine warfare for lack of motivation. After failing to finish the course, he was assigned to the Naval Air Station in New Orleans, Louisiana. While in New Orleans, he was assigned to perform various jobs, which included being a hot-dog stand attendant and being assigned to swab floors.

4. Sometime in May, 1979, the Petitioner left base without permission. He was charged with an unauthorized absence and assessed non-judicial punishment at "Captain's Mast".

5. Sometime in June, 1979, the Petitioner again left base without permission. He was again charged with an unauthorized absence and again assessed non-judicial punishment in accordance with Navy regulations.

6. Sometime in October, 1979, Petitioner once again left the base without permission. He was again charged with an unauthorized absence and assessed non-judicial punishment in accordance with Navy regulations.

7. Sometime after returning from his last unauthorized absence, the Petitioner sought legal advice. Thereafter, the legal services officer, a non-attorney ensign, called Lieutenant Commander Gifford, Petitioner's officer-in-charge, and told him that Adkins was seeking information on the various ways to obtain a discharge.

8. During this same general time period, Adkins contacted Lieutenant Commander Gifford and informed him of his alleged homosexual preferences. Lieutenant Commander Gifford then referred the Petitioner to Lieutenant Solis, the base doctor. The Petitioner apparently told Dr. Solis that he had engaged in homosexual relations with non-military personnel while he was in the military.

9. After his consultation with the Petitioner, Dr. Solis reported to Lieutenant Commander Gifford by telephone that he believed that the Petitioner was truthfully professing a homosexual preference. Dr. Solis recommended Class II homosexual treatment. See generally SECNAVIST 1900.9C(5)(b)(2)(a). He further recommended administrative separation from the military.

10. In late October, 1979, after his meeting with Dr. Solis, Petitioner again left base without permission. Upon his return he was again assessed administrative punishment and sentenced to thirty days correctional custody in a Navy facility in Pensacola, Florida.

11. On November 3, 1979, before the Petitioner was to leave for Pensacola, Florida, he spoke with Dr. Mohammed, a Navy psychiatrist. Dr. Mohammed then issued a written report. (Plaintiff's Exhibit 4). In this report, Dr. Mohammed related that the Petitioner expressed a strong desire to leave the Navy and that he was in a state of defiance and rebelling to get out. The report further stated that the Petitioner appeared to be manipulative and that he sometimes lies to get away from pressures. The report continued that the Petitioner claimed to have a preference for members of the same sex and that he appeared to verbalize his homosexual wishes around his Navy peers to stir problems and provoke rejection. The doctor's report concluded with a provisional diagnosis of homosexual and depressive tendencies.

12. On the basis of Dr. Mohammed's report, Lieutenant Commander Gifford decided that Adkins should be processed for discharge, but on grounds of unsuitability rather than homosexuality. Gifford's superior, Commander George Dresser, knew nothing about this tentative decision.

13. Lieutenant Commander Gifford did not intend to process Kevin for a homosexual discharge. He believed that it was his obligation to make a thorough investigation into the allegations of homosexuality. He considered the report of Dr. Mohammed and the oral report of Lieutenant Solis, as well as the ensign's oral report on Adkins' interest in being discharged. He also spoke with other unspecified Navy personnel. He then formed the opinion that Adkins was not a homosexual but instead was trying to get out of the military by any means possible. Commander Dresser apparently formed the same opinion but testified that he had never intended to approve any kind of discharge for Adkins.

14. Lt. Commander Gifford instructed the Base Personnel Office to begin processing Adkins for an unsuitability discharge while Adkins was in correctional custody in Pensacola. Shortly thereafter, he received notice of a message from Navy headquarters on the subject of correctional custody. While not introduced into evidence, the gist of the message was to state a policy that such custody was designed to be used for rehabilitation and not as a basis for discharge. Accordingly, Gifford decided to suspend processing until Adkins was released from custody in order to determine if the custody had provided the desired therapeutic effect.

15. Adkins returned from correctional custody on approximately December 2, 1979. At that time, Commander Dresser met with Adkins and told him that he had the potential to make a good sailor and would be kept in the service. Adkins indicated that he had no desire to stay in the military.

16. Sometime in December, 1979, Adkins once again left base without permission. He returned in late November or early December, 1980.

17. Upon his return, Adkins was arrested and held for court-martial at the Naval Air Station in Corpus Christi, Texas.

18. In December, 1980, Adkins filed a request for an immediate discharge presumably based on his alleged homosexual preferences. This request was denied by the commander of the base in Corpus Christi on December 9, 1980.

19. Adkins subsequently filed an Article 138 grievance against his base commander. See 10 U.S.C. § 938 (1976). This complaint has apparently not been acted upon and thus appears to be pending.

20. At all times during his tenure in the military, Adkins received military pay, food, clothing and took military orders. At no time prior to the filing of this suit did Adkins ever claim to anyone in the Navy that his enlistment was procured through recruiter misconduct.

Conclusions of Law

This petition for habeas corpus is essentially based upon two theories. First, that Petitioner's enlistment was void ab initio because it was procured by fraudulent and unlawful means in that his application contained false or inaccurate information about his drug use history. Second, that the Navy violated a mandatory duty to process Petitioner for honorable discharge as a homosexual and but for this violation, Petitioner would have been separated long before his last unauthorized absence. Under either theory, Petitioner concludes that he is not subject to the pending court-martial and that this Court should order him discharged from the Navy.

The...