Crawford v. Cushman, Civ. A. No. 6216.

• Decision Date: 12 July 1974
• Docket Number: Civ. A. No. 6216.
• Citation: 378 F. Supp. 717
• Parties: Stephanie CRAWFORD v. General Robert E. CUSHMAN, Jr., Commandant United States Marine Corps.
• Court: U.S. District Court — District of Vermont

378 F. Supp. 717

Stephanie CRAWFORD v. General Robert E. CUSHMAN, Jr., Commandant United States Marine Corps.

Civ. A. No. 6216.

United States District Court, D. Vermont.

July 12, 1974.

Mary Just Skinner, Vermont Legal Aid, Inc., Montpelier, Vt., for plaintiff.

William B. Gray, Asst. U.S. Atty., Allan A. Ryan, Jr., Capt., U.S. Marine Corps, Rutland, Vt., for defendant.

HOLDEN, Chief Judge.

This is an action for a declaratory judgment and a writ in the nature of mandamus to compel the defendant Commandant of the United States Marine Corps to reinstate the plaintiff in the Women's branch of that area of the service. Jurisdiction is invoked under 28 U.S.C. § 1361. The plaintiff Stephanie Crawford's claim is founded on the proposition that her discharge from the Marine Corps, by reason of pregnancy, on May 27, 1970 under service regulations then in effect, constituted a denial of due process and related equal protection standards embodied in the Fifth Amendment of the United States Constitution. More particularly, she complains that under the regulations in force at the time of her discharge, male Marines, with dependents, were permitted to remain in service and female Marines were not. She contends the distinction made in the regulations discriminates against her by reason of her sex and is arbitrary and capricious. Trial was by the court. The evidence presented established the facts which follow.

FINDINGS OF FACT

The complainant, Stephanie Crawford, at the age of twenty-one, was accepted for enlistment in the United States Marine Corps on February 5, 1968, for a term of four years. She was a single female person at the time of her enlistment and remained in unmarried status during the entire term of her enlistment contract. After the plaintiff reported for basic training at boot camp she learned that, under prevailing existing regulations, pregnancy would result in an "automatic discharge" from the Marine Corps.

After basic training the plaintiff received instruction in service schools, which included secretarial and data processing training. She was eventually assigned to the Marine Corps Air Station, El Toro, California. Her duty assignment was office work. At this station she resided in open barracks where approximately one hundred fifty female Marines were quartered.

In the course of her enlisted service the plaintiff was hospitalized for various physical and psychological causes. In January 1970 the plaintiff suffered from a stomach ulcer, a virus infection and irregular menstrual periods. During the period from mid-March to the middle of May 1970 the plaintiff reported to the base infirmary on approximately eighteen occasions, complaining of persistent nausea, fainting and blackout spells, abdominal pain and fatigue. On April 20, 1970 the plaintiff was transferred, at her request, to a change in duty assignment because of "emotional pressure." In May 1970, preparatory to minor surgery, it was medically determined that the plaintiff had conceived a child in the preceding March, at or about the time she discontinued contraceptive medication. On May 27, 1970 the plaintiff was discharged "for the convenience of the Government—under honorable conditions." The date of discharge occurred approximately twenty months before the expiration of the term of her enlistment contract.

In discharging the plaintiff, the Commandant of the Marine Corps acted pursuant to rules and regulations of that branch of the service relating to pregnancy and parenthood. On May 27, 1970 the pertinent provisions (MCD P1900.16 ¶ 6012, as modified by change 2 of 21 November 1969) provided:

Discharge or Release from Active Duty for Convenience of the Government

1. The Secretary of the Navy, or the Commandant of the Marine Corps, may authorize or direct the discharge or release from active duty of a Marine for the convenience of the Government for any one of the following reasons:

* * * * * *

A woman member, whether married or unmarried, upon certification by a medical officer that she is pregnant, shall be discharged by her commander, for the convenience of the Government, or in the case of overseas commands, will be transferred to a major Marine Corps command housing Women Marines in the continental United States for discharge. The character of the discharge certificate issued in these cases will be as warranted by the women member's service record, regardless of her marital status. In the case of discharge for reason of the pregnancy of a woman member who is an unmarried minor (under 21 years), her commander will notify her parents or guardian of the fact and reason for the discharge. If, as a result of a spontaneous or therapeutic abortion, or a stillbirth, the woman member's pregnancy is terminated prior to her separation from the service, she will nevertheless be discharged for convenience of the Government unless she requests, in writing, that she be retained in the service. In such latter case, the woman member, at the discretion of her commander, may be retained in the service, if she is found physically qualified for retention.¹

Following her discharge, the plaintiff remained in California until the following August. The plaintiff had been previously informed that she would be afforded free medical care during her pregnancy. During her stay in California the plaintiff consulted a naval medical officer at least once. In August 1970 she removed to Burlington, Vermont, preparatory to entering the Elizabeth Lund Home.² At Burlington the plaintiff received medical consultation, care and treatment afforded by obstetricians on the staff of the Medical Center Hospital of Vermont. During the prenatal period the plaintiff was confined to her bed as a result of the aggravation, by pregnancy, of a prior back injury. During the seventh month of pregnancy the plaintiff sustained an ankle injury as a result of a fall.

On December 13, 1970 the plaintiff gave birth to a baby girl. The plaintiff's medical records indicate nothing to medically prevent her from carrying on her assigned military occupation as late as her seventh month of pregnancy. Her child, at birth, was full term, normal and healthy. The plaintiff made a good recovery and was able to work six weeks after her hospitalization. The disability caused to the plaintiff, by reason of her pregnancy, was temporary.

The only medical evidence at the trial was presented by the obstetrician who attended the plaintiff during her confinement at Burlington. He testified that there is no physiological reason to prevent women from working during the early stages of pregnancy, absent complications. Most complications which develop during the first four or five months do not usually require hospitalization. Obstetrical problems that occur late in the term can be serious. However, each patient requires individual treatment.

In January 1971 the plaintiff submitted a written reenlistment application to the sergeant in charge of the Marine Corps recruiting office at Burlington, Vermont. After consulting the recruiting headquarters at Albany, New York, the plaintiff was informed at the Burlington office that because she had a dependent child, her application for reenlistment would not be approved.³ No other cause was given for the rejection of the application. This reason advanced by the recruiting sergeant was in accord with a Marine Corps Order (MCO P1100.61B para. 2209) in effect from September 4, 1970 to June 1, 1972. As applied to the plaintiff, it provided —Women applicants who have a child or children under 18 years of age are unacceptable for enlistment or reenlistment.⁴

At the time the plaintiff was released from military service she offered no objection to her discharge. At the trial she testified she wanted to remain in the Marine Corps and would have gone to any duty station where she might be assigned. She wanted her child to remain with her; in the event of assignment where dependents were not allowed, she would arrange for the child's care elsewhere. The plaintiff's daughter remained with her until January 1974. Since that date the child has been in a foster home.

The plaintiff was married on June 10, 1972 to a member of the United States Air Force, with whom she lived for five weeks. She then separated and divorce proceedings were pending at the time of this trial.

In 1970 there were approximately 310,000 Marines on active duty. Of this number, 2,000 were women. The military missions of the Marine Corps require readiness and mobility. To serve these capabilities, all personnel are expected to respond on short notice and without restriction, to orders that might direct expeditious movement from one location to another. The demands of readiness and mobility are made on all personnel.

Each woman in the Marines is assigned a skill. Her duty station is determined by the needs of the service for the particular specialty at various locations where the Marine Corps is located. The only restriction referred to in the evidence, concerning the assignment of women members of the Marine Corps, is that imposed by the provision of 10 U. S.C. § 6015, which forbids their assignment to aircraft engaged in combat missions. Duty on vessels of the Navy is confined to hospital ships and transports. Unscheduled vacancies and replacement transfers in designated skills impose administrative difficulties.

Female enlisted personnel are required to live in barracks, to participate in formations, ceremonial and otherwise. Women Marines are required to attend to daily policing of the barracks at 0600 and report for duty at 0730. There are no nurseries or other facilities at Marine installations for the care of children of Marine personnel.

The Marine Corps maintains no health service of its own; its medical service is provided by Navy officers and corpsmen. At its major bases in continental United States and in overseas stations, where women Marines were assigned, medical facilities are provided....