Hagopian v. Knowlton

• Decision Date: 31 October 1972
• Docket Number: Docket 72-1941.,No. 253,253
• Citation: 470 F.2d 201
• Parties: Joachim HAGOPIAN, Plaintiff-Appellee, v. Major General William KNOWLTON et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

470 F.2d 201 (1972)

Joachim HAGOPIAN, Plaintiff-Appellee, v. Major General William KNOWLTON et al., Defendants-Appellants.

No. 253, Docket 72-1941.

United States Court of Appeals, Second Circuit.

Argued September 20, 1972.

Decided October 31, 1972.

COPYRIGHT MATERIAL OMITTED

Frank H. Wohl, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty., Southern District of New York, of counsel), for defendants-appellants.

Joan Goldberg, New York City (Rabinowitz, Boudin & Standard, Michael Krinsky, Herbert Jordan, New York City, of counsel), for plaintiff-appellee.

Before KAUFMAN, SMITH and MANSFIELD, Circuit Judges.

MANSFIELD, Circuit Judge:

The Superintendent of the United State Military Academy at West Point (the "Academy"), the Commandant of the Academy, and the Secretary of the Army appeal pursuant to 28 U.S.C. § 1292(a) from an order, 346 F.Supp. 29, granting preliminary injunction restraining them from ordering Joachim Hagopian, a former third-year cadet, to active duty and requiring them to readmit him to the program of instruction and training at the Academy, which for 170 years has been engaged, at government expense, in training volunteer members of the military service in academic, military, character and physical development with a view to their becoming career officers in the United States Army.

Cadet Hagopian was separated from the Academy for deficiency in conduct after receiving 107 demerits as of May 21, 1972, 5 demerits in excess of the 102-demerit allowance prescribed as a maximum for the period December 21, 1971 to June 7, 1972.¹ Separation deprives Hagopian of the opportunity to complete his college education at the Academy and thereby to become a commissioned officer in the United States Army. It also subjects him to transfer to active duty "in an appropriate enlisted grade" for not less than two nor more than four years. 10 U.S.C. § 4348(b) (1972 Supp.); Regulations for the United States Military Academy 16.01e (March 15, 1971) (hereinafter "Academy Reg.").

In this action Hagopian challenges, for alleged failure to comport with minimum due process requirements, the procedures by which demerits for Class III delinquencies² are initially awarded and the procedures followed by the Academy's Academic Board in determining whether a cadet whose accumulated demerit awards exceed his allowance for a demerit period should be recommended for separation. We hold that the existing measures presently available to a cadet for contesting an individual award of demerits are sufficient to meet minimum standards of due process, but that when an accumulation of awarded demerits renders the cadet subject to separation, he must be granted a fair hearing before being separated, including the right to personally appear and to present witnesses and other evidence in his behalf. As Cadet Hagopian was denied these rights at the meeting of the Academic Board which recommended his separation, we affirm the judgment below.

I.

At the outset we emphasize that we are not here being called upon to modify the Academy's rigorous and exacting standards of discipline, behavior and personal decorum for cadets, standards which have traditionally been recognized as vital elements of a training program designed to develop the mind, body and character of prospective career officers. The ultimate objective of that training is to insure that when our country faces the all-important task of defending itself, Academy graduates will provide military leadership under stress, imbued with courage, a strong sense of duty, and a willingness to subordinate personal self-interest to the overriding needs of their country. Such important matters, which are part of the Army's conduct of military affairs and the standards adopted by it to prepare men for military operations, should not be interfered with by the judiciary. See Orloff v. Willoughby, 345 U.S. 83, 73 S.Ct. 534, 97 L.Ed. 842 (1953). Nor do we here seek to depart from that basic principle. The narrow question before us relates to a different matter. The Army's disciplinary standards are not here challenged. The question before us is the narrow and limited one of what minimum procedural due process must be accorded a cadet before he may be separated from the Academy.

Since the elements of due process are flexible, requiring consideration in each case of a variety of circumstances, it is essential to have a full understanding of the present operation of the disciplinary system at the Academy as it relates to the separation of a cadet for deficiency in conduct of the type which formed the basis of the Academy's decision in Hagopian's case. Preliminarily it should be noted that the Academy's disciplinary system as a whole is characterized as "correctional and educational in nature rather than being legalistic and punitive."³ Its purpose is to teach the cadets "to be prepared to accept full responsibility for all that they do or fail to do and to place loyalty to the service above self-interest or loyalty to friends or associates."⁴ Toward these ends the awards of demerits to cadets at the Academy serve a dual function. In the daily educational context demerits are awarded so that cadets will be deterred from committing infractions of the Academy's standards and, hence, will develop the kind of discipline the Academy hopes to inculcate in future Army officers. In the far less frequent context, however, the accumulation of demerits to the point of conduct deficiency serves as a measure used to determine whether a cadet should be expelled from the Academy.

The award of demerits for a Class III delinquency begins with a report by an officer, civilian instructor, or another cadet,⁵ forwarded to the allegedly delinquent cadet's Tactical Officer.⁶ The Tactical Officer may initiate the delinquency report himself and did so here as to 7 offenses (out of a total of 16) for which Hagopian received 46 demerits. The Tactical Officer notifies the cadet of any report, and he may request an Explanation of Report or the cadet may on his own submit one to contest the delinquency.⁷ The Tactical Officer reviews reports (including his own) and explanations and takes final action on all Class III offenses.⁸ The individual report form with a notation of the demerits awarded is returned to the cadet and, in addition, a Weekly Cadet Delinquency Report is posted each week to notify the cadet of his offenses for the past week for which demerits were awarded, as well as to notify him of cumulative totals for the month and for the demerit period.⁹

If a cadet wishes to appeal any demerit award listed, he must submit a request for reconsideration to the Tactical Officer by 8:00 A.M. of the day following the posting of the weekly report, and the award of demerits will be considered by the next higher authority, the Regimental Commander.¹⁰ It is also possible for the cadet to seek further review from the Superintendent of the Academy if he feels he has been wronged,¹¹ or to initiate a complaint, through his chain of command, to the Inspector General.¹² In the normal course, before a cadet exceeds his demerit allowance, these latter avenues of appeal are likely to be used only in rare instances.

The accumulation of demerits as a result of several individual awards may activate the other aspects of the disciplinary system with which this case deals. If a cadet exceeds his demerit allowance for a month or for the entire demerit period, the Tactical Officer is directed to interview the cadet to determine that all awards are correct and just and to have the cadet sign a form to that effect.¹³ On such occasions the Tactical Officer counsels the cadet with a view to assisting him to mend his ways and to avoid further infractions. Where the deficiency in conduct is based upon the cadet having exceeded his allowance for a full demerit period, as here, his case is forwarded through the Regimental Commander and the Commandant of Cadets to the Academic Board,¹⁴ which may recommend probation only if the cadet is one "whose potential warrants retention" and which otherwise must recommend separation.¹⁵ Formal approval of a recommendation to separate a cadet is finally taken by the Secretary of the Army.¹⁶

The Academic Board, which makes the fateful recommendation to separate or retain on probationary status a cadet deficient in conduct, is composed of the Superintendent, the Dean of the Academic Board, the Commandant of Cadets, and the heads of the several departments, totalling 18 members.¹⁷ This body has general responsiblity, inter alia, for decisions on admissions, qualifications for receipt of diplomas, curriculum, and probation and separation of cadets.¹⁸ A cadet who is being considered for separation by the Board for deficiency in conduct¹⁹ may submit any additional written material for the Board to consider in reaching its decision,²⁰ but may not appear before the Board personally or through counsel and may not present witnesses in his behalf.

II.

On June 8, 1972, the Academic Board recommended that Cadet Hagopian be separated from the Academy, and on June 27, 1972, the Secretary of the Army approved the separation. This lawsuit followed on June 30, 1972, seeking preliminary and permanent relief based on an alleged denial of procedural due process. Hagopian concedes that the demerit award and separation procedures prescribed by the Regulations were followed in his case and that he submitted only one request for reconsideration of an award (which was successful) prior to May 22 and 23, 1972, at which time he sought to dispute the factual basis for incidents which had occurred on January 18, April 27, and May 21, 1972. The latter requests for reconsideration were rejected. His deficiency in conduct was referred to the Academic Board with recommendations of his Tactical Officer and his Regimental Commander that he be separated. On May 25, 1972, Hagopian signed the form which indicated that all reports were...