Neal v. Secretary of Navy

• Decision Date: 21 June 1979
• Docket Number: Civ. A. No. 76-3326.
• Citation: 472 F. Supp. 763
• Parties: Joseph S. NEAL v. SECRETARY OF the NAVY and Commandant of the Marine Corps.
• Court: U.S. District Court — Eastern District of Pennsylvania

472 F. Supp. 763

Joseph S. NEAL v. SECRETARY OF the NAVY and Commandant of the Marine Corps.

Civ. A. No. 76-3326.

United States District Court, E. D. Pennsylvania.

June 21, 1979.

COPYRIGHT MATERIAL OMITTED

Harvey L. Anderson, Philadelphia, Pa., for plaintiff.

Lt. Gary J. Elkins, JAGC, Dept. of the Navy, Washington, D. C., Joseph M. Gontram, Asst. U. S. Atty. (E.D.Pa.), Philadelphia, Pa., for defendant.

OPINION AND ORDER

EDWARD R. BECKER, District Judge.

I. Preliminary Statement

This case, arising in a military setting, raises a number of interesting questions of federal jurisdiction and of administrative and constitutional law as respects the "right" of a serviceman to reenlist in the armed forces. Plaintiff Joseph S. Neal ("Neal") is a former gunnery sergeant in the United States Marine Corps who, at the time of his discharge, had served more than 14 years on active duty. Not counting several routine enlistment extensions, Neal had received permission to reenlist twice: once on November 18, 1964, and again on October 24, 1970. However, when Neal was honorably discharged from the Marine Corps on December 23, 1974, he was assigned the reenlistment code RE-3C, which bars reenlistment absent permission from the Commandant of the Marine Corps. The reenlistment bar was imposed in spite of Neal's efforts to reenlist as he had done in the past. This lawsuit, which names as defendants the Secretary of the Navy and the Commandant of the Marine Corps, is based upon a series of events triggered by Neal's unsuccessful efforts to reenlist, and seeks as relief an order that Neal be reinstated in the Corps with retroactive promotions and backpay. There being no genuine issue of material fact, it is properly before us on cross-motions for summary judgment.

Neal commenced this action on October 26, 1976 in the form of a petition for a writ of mandamus to compel the Board for the Correction of Naval Records ("BCNR") to exercise jurisdiction which it had theretofore declined to exercise. Specifically, Neal asked us to compel the BCNR to act upon his request for review of the decision by the Commandant, in accordance with the recommendation of the Marine Corps Enlisted Performance Board ("EPB"), not to permit him to reenlist. In due course we ordered the BCNR to decide the matter.¹ The BCNR then reviewed Neal's request, and on April 5, 1978 it informed him that it would let stand the reenlistment bar because there was "insufficient evidence of error or injustice to warrant any corrective action."

Having received this unfavorable decision, Neal amended his complaint and now challenges the refusal to permit him to reenlist on several grounds. First, he contends that the EPB recommendation was invalid because the Board failed to comply with prescribed regulations and procedures, and because no subsequent action taken by the Corps was sufficient to cure these errors. Second, he claims that the EPB decision and the BCNR failure to correct it were so arbitrary and capricious as to constitute an abuse of agency discretion. Finally, Neal contends that the regulations and procedures governing both Boards do not comport with the requirements of procedural due process, and that as a result defendants' actions violated his constitutional rights. To remedy these alleged violations, Neal seeks orders directing that he be reenlisted in the Marine Corps as of the date of the expiration of his prior term of enlistment, that all documents pertaining to the decision to bar his reenlistment be destroyed or sealed, and that he be accorded backpay and retroactive promotions.

Defendants as a preliminary matter, and in light of the changes in the posture of the case since the time of its inception, challenge our subject matter jurisdiction. Second, they deny that there were any irregularities in the EPB proceedings or that either Board acted arbitrarily in Neal's case. Third, they urge that the Commandant's decision was a discretionary one which we have only very limited power to review. Finally, defendants contend that the Commandant's denial of permission to reenlist impinged upon no liberty or property interest of Neal's, and that without any such interest the constitutional requirements of procedural due process do not apply. Alternatively, defendants argue that to the extent that those requirements do apply, they were followed in Neal's case.

As will appear from the discussion which follows, we hold that defendants' actions with respect to Neal comported with all applicable statutes and regulations and that they were within the bounds of agency discretion. We also hold that Neal had no protectible property or liberty interest in reenlisting, so that defendants' actions did not implicate any of his Fifth Amendment due process rights. However, before discussing the substance of the parties' contentions and several underlying issues, we must first describe more fully the factual background.

II. The Facts and Procedural History of the Case

Neal enlisted in the Marine Corps on May 18, 1960, and served on active duty until he was honorably discharged on December 23, 1974. It is undisputed that his overall service record was "above average to excellent," and particularly outstanding during his last four years of service. See EPB transcript. He served in Cuba in the early 1960s, and was decorated for his actions during two tours of duty in combat in Viet Nam. He also received the Good Conduct Medal on four occasions for conduct denoting "honesty and faithful service in keeping with the highest traditions of the Marine Corps."

The Corps' recognition of the high quality of Neal's performance was manifested not only through various awards and consistently high efficiency ratings, but also through his promotion to the rank of gunnery sergeant (E-7) in July of 1973 and his appointment to recruiting duty in February of 1974 which, in the words of the Commandant, "was in itself evidence that Neal's record was one of the Corps' finest. See Correspondence of February 18, 1974 to Neal from C. W. Hoffman, by direction of the Commandant. Each of these actions in recognition of Neal's service might have required an extension of Neal's enlistment; the recruiting duty would have been for a period in excess of his current enlistment term, and in connection with his promotion, the Corps required him to execute an agreement to reenlist for a period of two years at the end of his current enlistment term.

On May 15, 1974, with his term of enlistment due to expire in several months, Neal submitted a routine request for reenlistment. Pursuant to standard Marine Corps procedure, Neal's request was referred to the EPB, which was charged with the responsibility of reviewing and making recommendations on all such requests.²

On August 22, 1974, Neal's Commanding General received a letter from the office of the Commandant, advising him that Neal's request had been referred to the EPB, and directing him: (1) to inform Neal of the likelihood that in conjunction with its review of his request, the EPB would consider two reports by the Naval Investigative Service ("NIS") dated 9/18/72 and 1/8/74 respectively, which were contained in Neal's file; (2) to inform Neal that the EPB would consider any written statement by Neal concerning these reports, provided that it was forwarded to Headquarters prior to September 11, 1974; and (3) to have Neal evaluated by a psychiatrist to determine his fitness for continued service. Accordingly, Neal was informed that the EPB would consider two NIS reports in his files and that he could submit his own statement regarding the incidents covered by those reports. However, both Neal's and his Commanding Officer's efforts on Neal's behalf to obtain more information concerning the contents of the NIS reports were unavailing. Neal nevertheless did write a statement for submission to the EPB, and it was forwarded along with the requested psychiatric evaluation.

On October 16, 1974 the EPB convened to consider Neal's reenlistment request. The following materials were presented to the Board for its consideration: (1) Neal's official Enlisted Personnel File; (2) NIS investigative reports showing: (a) that in 1970 Neal had been interviewed concerning his knowledge of suspected homosexual activity on the part of another Marine; (b) that in 1972, while Neal was stationed in Okinawa, there was a brief investigation into allegations by another Marine that Neal had made homosexual advances toward him, but that the investigation was soon dropped; and (c) that in 1974, acting on a complaint by a young man, California police had arrested Neal for assault with a deadly weapon, sodomy, and sexual perversion involving oral copulation, but that the charges were subsequently dismissed when the alleged victim failed to appear for trial;³ (3) Neal's reenlistment request and the accompanying endorsement of his Commanding Officer; (4) a copy of a psychiatric evaluation of Neal by Dr. R. Aitken, finding him fit for further duty, with no sign of thought disorder; (5) Neal's own written statement concerning the Okinawa and California incidents which were the subjects of the NIS reports;⁴ and (6) the Precept for the EPB. See Exhibit 1 to Defendants' Motion to Dismiss or for Summary Judgment (affidavit of Col. William E. Riley, Jr.). Neal did not appear personally before the Board, nor were any other witnesses heard.

The EPB, finding that Neal's personal conduct over the previous five years had been "prejudicial to the Marine Corps and not in keeping with the high standards expected of staff noncommissioned officers," recommended against reenlistment, and on November 12, 1974 the Commandant approved this recommendation. On November 20, 1974 Neal was so advised by letter, and on December 23, 1974 he was discharged from the Corps with an honorable discharge, and with a reenlistment code of RE-3C.⁵

On June 11, 1976, after receiving copies of his personal record...