Doe v. Chafee, C-72-282.

• Decision Date: 21 February 1973
• Docket Number: No. C-72-282.,C-72-282.
• Citation: 355 F. Supp. 112
• Parties: John DOE, Plaintiff, v. John CHAFEE, as Secretary of the Navy, Defendant.
• Court: U.S. District Court — Northern District of California

355 F. Supp. 112

John DOE, Plaintiff, v. John CHAFEE, as Secretary of the Navy, Defendant.

No. C-72-282.

United States District Court, N. D. California.

February 21, 1973.

Armando M. Menocal, III, Michael S. Sorgen, Christopher N. May, Mission Law Office, San Francisco Neighborhood Legal Assistance Foundation, San Francisco, Cal., for plaintiff.

James L. Browning, Jr., U. S. Atty., James A. Bruen, Asst. U. S. Atty., San Francisco, Cal., for defendant.

MEMORANDUM OPINION AND JUDGMENT

SPENCER WILLIAMS, District Judge.

In his Petition for Writ of Mandamus, petitioner asks the court to adjudge his undesirable discharge from the Navy invalid, order the issuance of an honorable discharge and award him $20,000 in damages.

The matter has been heard and submitted on cross motions for summary judgment. Subsequent to the filing of this action, and to some extent as a result thereof, the Navy has corrected its records to grant petitioner a general discharge, mooting the first point above. The matter of damages has not yet been argued. The sole question before this court is whether an honorable discharge should be ordered. This, in turn rests upon the application of Harmon v. Brucker, 355 U.S. 579, 78 S.Ct. 433, 2 L.Ed.2d 503 (1958); Kennedy v. Secretary of the Navy, 131 U.S.App.D.C. 39, 401 F.2d 990 (1968); Stapp v. Resor, 314 F.Supp. 475 (S.D.N.Y.1970) to the facts of this case.

The facts are as follows:

Petitioner enlisted in the Navy on January 17, 1963 and received an honorable discharge on July 16, 1964. He immediately re-enlisted for a six-year hitch and served until November 7, 1966,¹ the date of his undesirable discharge. The undesirable discharge resulted from petitioner's voluntary disclosure to Naval Authorities of a then existing homosexual relationship—of about two weeks duration—with a shipmate. It was his first and only such experience and no homosexual acts were committed during duty hours or on any Naval ship or station. Up until the reports of this conduct appeared in his military record, it had been exemplary. His first disclosure was to his division officer, and he later gave a sworn statement to a Special Agent of the Office of Naval Intelligence. In his sworn statement he stated he made the voluntary disclosure "because there were too many problems about my relationship with my shipmate. We did not want to engage in any acts aboard ship for fear of getting caught. Getting caught in our rack together would have been too much to bear for both of us. But the tension of being together, especially on cruises, and not being able to do what we wanted was causing too much tension and was nerve-racking . . .."

Petitioner was advised that Navy regulations required his separation² and was assured that because of his excellent record—and voluntary disclosure—he would receive no less than a general discharge. As a result of this assurance he signed a waiver of counsel³ and received his commanding Officer's recommendation that a general discharge be granted. Despite the foregoing, the Navy gave him an undesirable discharge.

Upon returning to civilian life petitioner found his efforts to obtain employment in his field (electronics) were unsuccessful due solely to the nature of his discharge. He also learned that he was ineligible to receive Veteran's benefits. In June of 1971, he petitioned—through counsel—for "correction . . . of his discharge to either honorable or general discharge . . ."

Frustrated by administrative delays in the processes of the application, he filed his Petition for Writ of Mandamus on February 15, 1972. Following arguments on the aforementioned cross motions the matter was taken under submission, pending outcome of the application to the Board for Correction of Naval Records. On August 7, 1972 the Board for Correction of Naval Records found:

". . . that petitioner's separation with an undesirable discharge constitutes error and injustice warranting corrective action . . ."

and ordered that the record be corrected to show that on November 7, 1966 he was discharged with a general discharge.

Thereafter, and at further hearings on the matter, petitioner pressed for an honorable discharge, stating that the action of the Board for Correction of Naval Records "although a measurable approach to fairness in the matter herein, does not represent a satisfactory resolution of the controversy . . . ." Respondent contends that the action of the Navy should be sustained.⁴

It is not the proper function of this court to substitute its judgment for that of the administrative officer to whom Congress has assigned the functions here under review. 10 U.S.C. §§ 1552, 1553; Sanford v. United States, 399 F.2d 693, 694 (9th Cir. 1968). The power of this court is limited to reviewing the record to insure that pertinent laws and regulations have been followed and to determine whether the action was arbitrary, capricious or unsupported by substantial evidence. And in this case, the sole question is whether there has been a showing in petitioner's military record of a nexus between his homosexual activity and the quality of his military service.

In Harmon v. Brucker, supra, the allegedly offensive conduct occurred prior to plaintiff's entry into the military service and was nowhere reflected in his military record. "The discharge," the court said, "should accurately reflect the nature of the service rendered." In Kennedy v. Secretary of the Navy, supra, the administrative discharge of a naval officer on inactive duty for attendance at Communist Party meetings was also held impermissible since:

"These activities were not reflected in the record of his naval service and there is no finding that they affected the quality of that service . . ."

The court further pointed out that his activities left no discernable impact on the service rendered.

In Stapp v. Resor, supra, plaintiff, on active duty with the Army, was given an undesirable discharge twenty (20) days before his enlistment expired. The reason therefor was his off-duty association with a group designated by the Attorney General as a subversive organization. Here again the court pointed out that his...