Covington v. Schwartz

• Decision Date: 04 June 1964
• Docket Number: No. 41902.,41902.
• Citation: 230 F. Supp. 249
• Parties: Napoleon COVINGTON, Plaintiff, v. J. W. SCHWARTZ, individually and as Commanding General of U. S. Army Letterman General Hospital, Frederic J. Brown, individually and as Commanding General of Sixth United States Army, Cyrus Vance, individually and as Secretary of the U. S. Army, Defendants.
• Court: U.S. District Court — Northern District of California

230 F. Supp. 249

Napoleon COVINGTON, Plaintiff, v. J. W. SCHWARTZ, individually and as Commanding General of U. S. Army Letterman General Hospital, Frederic J. Brown, individually and as Commanding General of Sixth United States Army, Cyrus Vance, individually and as Secretary of the U. S. Army, Defendants.

No. 41902.

United States District Court N. D. California, S. D.

June 4, 1964.

James P. Preovolos, San Francisco, Cal., for plaintiff.

Cecil F. Poole, U. S. Atty., Charles Elmer Collett, Asst. U. S. Atty., San Francisco, Cal., for defendants.

HARRIS, Chief Judge.

Plaintiff, a Sergeant in the United States Army who was about to receive an undesirable discharge, instituted this action for a Declaratory Judgment under 28 U.S.C.A. §§ 2201 and 2202 and 5 U.S. C.A. § 1009 of the Administrative Procedure Act. He has alleged that the Board of Officers which was convened to try him for certain offenses and which authorized his discharge under color of Army Regulations 635-89 and 15-6, acted in an arbitrary and capricious manner and in so doing denied him due process of law at the several stages of the Board of Officers Proceedings. He contends that the Board acted beyond the scope of their authority and contrary to the Uniform Code of Military Justice, 10 U.S. C.A. § 801 et seq.

Plaintiff asks the court to enjoin defendants from discharging him under color of authority of the Board of Officers Proceedings and further requests the court to declare void such proceedings as contrary to his rights under the Constitution. He alleges that he has exhausted his effective remedies and that unless the relief prayed for is granted, he will suffer irreparable injuries by reason of the undesirable discharge which will become effective shortly before he will have completed his enlistment or earned an honorable discharge at the conclusion of twenty years of service in the United States Army. He contends that no statute or regulation will permit him to be restored to active duty as of the date of discharge, should he prevail in obtaining relief before the Army Discharge Review Board or the Army Board for Correction of Military Records.

Defendants have moved to dismiss the complaint, alleging that plaintiff has failed to exhaust his administrative remedies and that the court lacks jurisdiction to grant the relief which plaintiff seeks. Defendants point out that plaintiff is free to present his case, following an undesirable discharge, before a review board (10 U.S.C.A. § 1553) and a corrections tribunal (10 U.S.C.A. § 1552.) Defendants allege that the proceedings accorded plaintiff have been consistent with due process of law and that there is no basis for the court to set them aside or otherwise enjoin the tribunal from enforcing its order.

The record before the court shows that plaintiff, who completed sixteen years of service in 1961, received an Honorable Discharge on April 21st of that year and re-enlisted three days later for a term of six years as a Sergeant First Class.

While plaintiff was stationed at Walter Reed Medical Center as a member of the medical corps, he had been investigated for homosexual behavior, commencing May 4, 1960 for the purpose of determining whether he was a homosexual or had engaged in such activities. Numerous statements were taken and considered by appropriate authorities, after which the investigation was closed and no action was taken against plaintiff.

Not until after he had been accepted for reenlistment and stationed at Letterman General Hospital was plaintiff further investigated. Such a proceeding was commenced on May 21, 1962 under the authority of the Commanding General of said hospital. A Board of Officers was regularly convened on October 2, 1962, plaintiff having been given notice to appear, which he did with counsel. Thereafter, because of irregularities, the proceedings of the Board were disapproved on December 11, 1962 and plaintiff was so notified.

Another Board of Officers was convened on May 14, 1963 to pursue the matter further. This Board, because of the lack of depositions on the part of defendants' witnesses, continued the hearing until August 26, 1963. Meanwhile, it was able to depose one individual whose statement had previously been taken. At the conclusion of the August hearing, the Board found that plaintiff was a homosexual within the meaning of the regulation and recommended an undesirable discharge.

Following the concurrence of the convening authorities in the recommendation of the Board, plaintiff received orders, on November 8, 1963 reducing him to Private and informing him he was to be discharged, under Army Regulation 635-89 with an Undesirable Discharge. Shortly thereafter he commenced the present proceedings for relief, after first requesting a copy of the record of the proceedings of the Board of Officers.

Initially, plaintiff was unable to obtain the record but since it is before the court and was produced for purposes of this review, lack of a record is no longer an issue to be considered by the court.

The record discloses that defendants produced one witness, whose statement had been considered at the initial hearing, and admitted the deposition of a second witness whose testimony supported defendants' charges. In addition, a psychiatrist who tested and interviewed plaintiff and reviewed the record of previous proceedings, including statements of all persons allegedly involved with plaintiff, gave his opinion that plaintiff had "homosexual tendencies and possibly engaged in homosexual acts."

In rebuttal, plaintiff pointed out that of the eight statements considered by the Board, seven of them had been obtained prior to the first hearing in 1960 which had been closed and had not precluded plaintiff from obtaining an Honorable Discharge the following year. The new material consisted of testimony of a member of the Army who was drunk on the occasion that he accompanied plaintiff, who allegedly suggested homosexual conduct in the course of a drive and return to barracks. In addition, a man who shared plaintiff's room for two nights, and who had imbibed too freely before retiring one evening, testified that he was wakened by plaintiff during one night and that he made a suggestion which could be construed as homosexual in overtones, though admittedly ambiguous in context.

With respect to the Army psychiatrist, who admittedly based his judgment in large measure on the rejected statements submitted at the first hearing and conceded that the tests in themselves were not sufficient to establish homosexual tendencies in plaintiff, rebuttal evidence is cited in the opinion of the psychiatrist who studied plaintiff at the first hearing and who concluded that he was not a man who was homosexual or had such tendencies. A third doctor, who was studying psychiatry and who...