Martinez v. Brown, C 77-2523 CFP.

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
• Writing for the Court: Patrick Ramirez S. Bupara, Asst. U. S. Atty., San Francisco, Cal., for defendants
• Citation: 449 F. Supp. 207
• Parties: Ignacio Joaquin MARTINEZ, USN, ETN2, XXX-XX-XXXX, Plaintiff, v. Harold BROWN, Secretary of Defense, et al., Defendants.
• Docket Number: No. C 77-2523 CFP.,C 77-2523 CFP.
• Decision Date: 28 February 1978

449 F. Supp. 207

Ignacio Joaquin MARTINEZ, USN, ETN2, XXX-XX-XXXX, Plaintiff,
v.
Harold BROWN, Secretary of Defense, et al., Defendants.

No. C 77-2523 CFP.

United States District Court, N. D. California.

February 28, 1978.

449 F. Supp. 208

John Vaisey, San Francisco, Cal., for plaintiff.

Patrick Ramirez S. Bupara, Asst. U. S. Atty., San Francisco, Cal., for defendants.

MEMORANDUM OPINION AND ORDER GRANTING PRELIMINARY INJUNCTION

POOLE, District Judge.

Plaintiff's application for a preliminary injunction came on for hearing on November 30, 1977. Having heard oral argument, and considered the records on file herein, the Court concludes that the preliminary injunction should issue.

The plaintiff entered active service with the United States Navy on January 17, 1972, and was scheduled to complete his enlistment on January 17, 1978. On November 3, 1977, he received notification from the Chief of Naval Personnel that he was being given a less than honorable discharge on account of homosexual conduct, and that he would be coded as ineligible for reenlistment. This action was filed on November 8, 1977, in order to obtain injunctive relief against the pending discharge.

The events preceding the notification of discharge are as follows. In November of 1976, after receiving an undocumented complaint from one of the plaintiff's shipmates, the Naval Investigative Service ("NIS") began an investigation to determine whether plaintiff was a homosexual. Upon conclusion of the investigation, an Administrative Discharge Board was convened to consider its results. The first three witnesses before the board testified to various instances of homosexual conduct involving the plaintiff. The first witness, a Petty Officer Murray, detailed an event in November of 1976 when he and plaintiff were in a Hong Kong bar. According to him, a British Seaman suddenly became belligerent, threatening violence against the plaintiff. When Murray intervened and inquired into the cause of the dispute, the British serviceman accused plaintiff of making overtures in an endeavor to "pick him up." The second witness, a Lloyd Shingleton, narrated that at a party which he and the plaintiff had attended one evening in September, 1976, plaintiff "brushed" against his leg three or four times. Later that night, when the group of sailors was asleep on the floor in the house, he saw plaintiff in close proximity to another sailor and with his arm across the other's back. The third witness, Petty Officer Timothy Lazarus, was the sailor in the above incident described by Lloyd Shingleton.

449 F. Supp. 209

Lazarus recalled waking up on the floor during the evening and finding the plaintiff asleep next to him, holding his hand. He pushed plaintiff away from him and fell asleep again

In his own behalf, plaintiff introduced into evidence the report of a Navy psychiatrist who had conducted a clinical interview with him in December of 1976. The report's conclusion was that the psychiatrist did "not believe that this man has ever had a homosexual intent or involvement," and that he recommended investigation into possible motivations of those who had brought about the complaints against plaintiff.

Five witnesses testified to their long acquaintance with plaintiff in the Navy, his heterosexual relationships, and his lack of homosexual tendencies. The final witness was the plaintiff himself. He denied the implications of homosexuality on the occasions described by Murray, Shingleton and Lazarus. He volunteered that he had been the victim of a homosexual advance of another when he was seven. He also described a homosexual incident in 1973 while he was in the service. According to plaintiff, he and another petty officer to whom he was greatly attached had attended a party. At the other man's suggestion, plaintiff went with him to sit in the latter's Volkswagen. Plaintiff testified that as he was entering the vehicle, the other man unexpectedly unzipped plaintiff's pants and fondled his genitals. Plaintiff said that when he recovered from surprise and shock, he terminated the contact.

At the conclusion of the hearing, two of the three members of the Discharge Board found plaintiff not guilty of homosexual involvement, and recommended his retention in the Navy. The third Board member dissented, pointing out that plaintiff had admitted involvement in at least one homosexual incident, and recommended that he be separated from the Naval Service. The Board's convening officer, the Commanding Officer of the Naval Facility at Subic Bay, disapproved the recommendation of the Discharge Board, and recommended discharge because of plaintiff's "admitted involvement in a homosexual act." Following the prescribed review, the Chief of Naval Personnel concurred in the Commanding Officer's recommendations and ordered that plaintiff be separated from the service by a general discharge. The decision was subsequently approved by the Assistant Secretary of the Navy, and plaintiff was notified of his impending discharge under conditions barring his reenlistment.

Plaintiff seeks a preliminary injunction barring the Navy from discharging him with less than an honorable discharge, and from coding him as ineligible for reenlistment. Although the enlistment term has technically expired, the Navy has agreed to extend his original enlistment during the pendency of this action. Plaintiff has applied for reenlistment, but the Navy has similarly withheld processing until the Court's decision.

The Navy regulation under which plaintiff was processed for discharge states in relevant part:

"1. Members may be separated by reason of misconduct with an undesirable discharge, unless the particular circumstances in a given case warrant a General or an Honorable discharge. A discharge by reason of misconduct may be executed only when directed or authorized by the Chief of Naval Personnel. Members may be recommended for discharge by reason of misconduct for:

. . . . .

"b. Homosexual acts while a member of the naval service, sexual perversion, including but not limited to lewd and lascivious acts; sodomy; indecent exposure; indecent acts with or indecent assault upon a child; or other indecent acts or offenses. Processing for discharge is mandatory." (Emphasis added).

Bureau of Naval Personnel Manual BUPERSMAN, Section 3420185-1.b)

This regulation is supplemented by Instruction 1900.9A issued by the Secretary of the Navy, and entitled "Policy for the Separation

449 F. Supp. 210

of Members of the Naval Service by Reason of Homosexuality." In particular, paragraphs 4.a and 5.b of Instruction 1900.9A state...