Brown v. Dunleavy

• Decision Date: 28 September 1989
• Docket Number: Civ. A. No. 89-149-N.
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Christopher K. BROWN, Petitioner, v. Vice Admiral Richard M. DUNLEAVY, U.S. Navy, Commander Naval Air Force, U.S. Atlantic Fleet, Naval Air Station, Norfolk, Virginia, Respondents.

722 F. Supp. 1343

Christopher K. BROWN, Petitioner, v. Vice Admiral Richard M. DUNLEAVY, U.S. Navy, Commander Naval Air Force, U.S. Atlantic Fleet, Naval Air Station, Norfolk, Virginia, Respondents.

Civ. A. No. 89-149-N.

United States District Court, E.D. Virginia, Norfolk Division.

September 28, 1989.

Sidney L. Frank, Frank & Stefani, Christine E. Moore-Welch, Troy, Mich., Robert W. Hardy, Knight, Dudley, Pincus, Dezern & Clarke, Norfolk, Va., for petitioner.

Roy C. Hayes, U.S. Atty., Mike Wicks, Peter Caplan, Asst. U.S. Attys., Detroit, Mich., Lieutenant Commander Byard Q. Clemmons, JAGC, USN, Office of the Judge Advocate General, General Litigation Div., Dept. of the Navy, Alexandria, Va., Raymond A. Jackson, Asst. U.S. Atty., Norfolk, Va., for respondents.

MEMORANDUM OPINION AND ORDER

DOUMAR, District Judge.

Christopher K. Brown, a member of the United States Navy, is before the Court on a petition for a writ of habeas corpus. As a result of material misrepresentations relied on by Christopher Brown in enlisting, he seeks rescission of his enlistment contract with an honorable discharge from active service in the United States Navy. The writ of habeas corpus is GRANTED and the respondent is ORDERED to honorably discharge Christopher K. Brown, SSN XXX-XX-XXXX, FORTHWITH from the United States Navy.

I. BACKGROUND

This action was originally filed on January 20, 1989 in the United States District Court for the Eastern District of Michigan. In addition to seeking an honorable discharge, Christopher Brown sought a temporary restraining order requesting that he be kept on "hold" status and not reassigned so he could pursue his legal action and be in a position to aid and consult with his attorneys. On January 31, 1989, the District Court in Michigan denied the motion for a temporary restraining order because the court found that the transfer of Brown to active duty would result in no irreparable harm. The District Court in Michigan also ordered Brown's complaint dismissed without prejudice pending exhaustion of his administrative remedies.

On February 21, 1989, after Brown received orders to fly to Naples, Italy to join the USS THEODORE ROOSEVELT in the Mediterranean, the Michigan District Court reopened the case. The action was reinstated as a petition for a writ of habeas corpus and proper jurisdiction was found to be in the judicial district where Brown was detained and where his custodian was located. Schlanger v. Seamans, 401 U.S. 487, 490-92, 91 S.Ct. 995, 998, 28 L.Ed.2d 251 (1971). Accordingly, the case was transferred to the United States District Court for the Eastern District of Virginia, Norfolk Division, and on March 3, 1989, Vice Admiral Richard M. Dunleavy was made the respondent.¹

A hearing on a temporary restraining order was held on March 2, 1989 which became a request for a preliminary injunction on March 3, 1989 at which time evidence was taken including the testimony of ATC Kevin L. Houle. The Commander, Naval Air Force U.S. Atlantic Fleet, Admiral Richard M. Dunleavy, accepted service of process in his official capacity at that time and the case was continued until March 30, 1989 to be heard on the merits for the writ of habeas corpus. All parties were present in person or by counsel, additional evidence taken and the hearing concluded on the writ and/or permanent injunction.

II. FINDINGS OF FACT

The Court finds the following findings of fact by clear and convincing evidence:

1. In October, 1987, Brown, an eighteen year old college student, visited the Navy recruiting office in Wayne, Michigan, to discuss his interest in becoming a Navy pilot. Brown met several times with Petty Officer Robert Pepin, a Navy recruiter, who informed him that he could not become a pilot because he did not have 20/20 vision. (Tr. 151.) Petty Officer Pepin also told Brown that enlisted members of the Navy flew in airplanes as air crewmen. (Tr. 38, 151.) Brown made it clear to Petty Officer Pepin, that the only reason he was interested in the Navy was so he could become an air crewman and fly. (Tr. 38-39, 150-52, 155; Plaintiff's Exhibit 3).

2. Brown was told by several recruiters that there was no way he could be guaranteed air crew candidate school. (Tr. 43, 112). Instead, he was told that the "only" way to become a member of an air crew was to go to a technical or "AT" school to become an Avionics Electronic Technician which is an AT rating. (Tr. 152). He was assured that after finishing AT school and with good grades at AT, he could then volunteer for air crew school, and if he did well in AT school, then he would go on to air crew school. (Tr. 40, 56, 152, 155.) If he went on to air crew school he could then obtain an "AW" rating which was an air crewman.

3. Brown was not told that air crew candidate school is a program available to an enlistee if he is given a guarantee for a specific rating which includes that training. (Plaintiff's Exhibits 2, 4). In addition, he was not told that it is possible to enlist in the Navy with a guarantee for the rating AW, a rating that includes air crew candidate school as part of its required training. (Tr. 169, 27-68).

4. Before Brown enlisted, he was given a physical examination and he completed a health questionnaire. On this questionnaire, Brown checked the "yes" box next to the line marked "hay fever." (Defendant's Exhibit 1). Brown was not told by any of the Navy personnel with whom he spoke that hay fever, if not waived, would disqualify him from air crew candidate school. (Tr. 48, 65, 261; Plaintiff's Exhibits 2, 4). He was subsequently repeatedly assured he could obtain his goal of flying as an air crewman by following the prescribed procedures. In addition to the physical, Brown also took an aptitude test in which his scores were very high across the board and extremely high in the areas required for the AW rating. (Tr. 244-47.)

5. During the recruiting process, Brown met with at least four different naval recruiting personnel: Petty Officer Pepin; Chief Petty Officer Russell Cambone, the Zone Supervisor for nine recruiting stations; Master Chief Petty Officer Reed McKnight, the Chief Recruiter and Command Master in the Navy Recruiting District in Detroit; and Petty Officer David Crawford, a Navy classifier at the Military Enlisted Processing Station in Detroit. In his meetings with these men, Brown made it very clear that his only reason for enlisting was to become a member of an air crew. He continually asked whether there was any way he could be guaranteed air crew training and was told that he could not, but was repeatedly assured that he could become an air crewman if he enlisted in AT school and made good grades. (Tr. 55-56, 62.)

6. The classifier evaluates a recruit's physical and mental qualifications for specific jobs in the Navy. (Tr. 235.) He consults the Navy Recruiting Manual to determine the physical and mental requirements for each job, and he matches them against the recruit's file to determine if the recruit is eligible for a particular job. An important part of his job is to tell a recruit that his career goal is one that he cannot achieve because he does not meet the physical requirements. (Tr. 269, 272-73.)

7. Every Navy recruiter has a copy of the Recruiting Manual. (Tr. 183.) The Recruiting manual gives the requirements for the AW rating. (Tr. 170, 179.) Master Chief McKnight testified in a manner to try to indicate that recruiters are not expected to know or discuss the Navy ratings with potential recruits and that there would not be a guarantee for AW rating but later admitted that the Navy rating "AW" could be guaranteed with enlistment. He admitted that recruiters had quotas to achieve in recruiting but claimed that if the recruiters failed to meet these quotas that nothing happened. This witness was evasive and skirted the issues. The Court specifically finds his demeanor and manner while testifying to be such as to mandate rejection of much of his testimony, including that portion claiming lack of knowledge of ratings by recruiters, lack of persuasiveness by recruiters, and the meaninglessness of recruitment quotas. (Tr. 171-179) It is so rejected. Petty Officer Pepin, however, testified that he felt it was important to discuss the qualifications for the career goal a recruit was interested in and to let the recruit know if he was eligible for that goal. (Tr. 153) Moreover, McKnight did admit the Navy rating of "AW" could be guaranteed and the Court so finds. Recruiter Pepin stated on many occasions that Christopher Brown would be flying in airplanes and that was the goal of Brown. (Beyer Deposition, p. 10).

8. On October 27, 1987, Brown signed an enlistment contract and entered into the Navy's delayed entry program. His enlistment contract guaranteed that he would be sent to AT training school. (Defendant's Exhibit 1.) This delayed enlistment meant that he would not go on active duty for several months.

9. Christopher Brown enlisted only because the material representations were made to him that: he could be a member of the air crew; that the "only" way was to go to AT school and if he did well he would go to air crew school; that he could not be guaranteed air crew training before entering the service; and that he was physically qualified to be an air crewman.

10. Brown's complaint alleges that Petty Officer Pepin provided him with alcoholic beverages on several occasions during the recruiting process.² Before Brown signed his enlistment papers, he had been convicted of driving a vehicle while a passenger had an open container of an alcoholic beverage. In addition, on December 24, 1987, after enlistment but before going on active duty, while returning from a party at which Petty Officer Pepin attended, Brown was arrested for driving under the influence of alcohol ("DUI"). If convicted for DUI, Brown would have been required to attend alcohol awareness classes.

11. A person in the delayed entry program,...