Nelson v. Miller

• Decision Date: 13 February 1967
• Docket Number: No. 16069.,16069.
• Citation: 373 F.2d 474
• Parties: Kenneth Wayne NELSON, Appellant, v. Charles K. MILLER, Captain, United States Navy, etc., et al.
• Court: U.S. Court of Appeals — Third Circuit

373 F.2d 474 (1967)

Kenneth Wayne NELSON, Appellant, v. Charles K. MILLER, Captain, United States Navy, etc., et al.

No. 16069.

United States Court of Appeals Third Circuit.

Argued December 6, 1966.

Decided February 13, 1967.

Rehearing Denied March 13, 1967.

James J. Orlow, Philadelphia, Pa., for appellant.

David L. Rose, Atty., Dept. of Justice, Appellate Section, Civil Div., Washington, D. C. (J. William Doolittle, Acting Asst. Atty. Gen., Drew J. T. O'Keefe, U. S. Atty., Morton Hollander, Howard J. Kashner, Attys., Dept. of Justice, Washington, D. C., on the brief), for appellees.

Before STALEY, Chief Judge, and McLAUGHLIN and FORMAN, Circuit Judges.

OPINION OF THE COURT

FORMAN, Circuit Judge.

The appellant, Kenneth Wayne Nelson, sought a declaratory judgment and injunctive relief in the United States District Court for the Eastern District of Pennsylvania pursuant to 28 U.S.C. §§ 2201, 2202 and 5 U.S.C. § 1009, to restrain the appellees, officers and an official of the United States Navy, from discharging him from the service. This appeal is taken from the order of the District Court denying the appellant's motion for a preliminary injunction while retaining jurisdiction for final hearing. Following a hearing the District Court delivered its opinion orally, making findings of fact based on evidence which may be summarized as follows:

The appellant is an Electronics Engineer First Class in the United States Navy with approximately ten years of service. On October 22, 1965, he was interviewed in London by Agent Siler of Naval Intelligence, who told him that he was conducting an investigation of homosexual activities and later stated that the appellant was suspected of associating with a homosexual known as "Phil." The appellant denied this, but in response to a question by Agent Siler, told of an incident which occurred in San Francisco in 1963. He then signed an unsworn typewritten statement prepared by Agent Siler in which a version of the incident was set forth. The District Court found that Agent Siler misled the appellant as to the purpose of the interrogation and the use to which it would be put and at no time advised him of any right of counsel.

The appellant was transferred to the Fourth Naval District at Philadelphia, Pennsylvania for court-martial,¹ but the District Commandant refused, for the best interest of the Naval Service, to convene a court-martial despite the appellant's request for trial by the same. Instead, on the recommendation of the Naval Station, approved by the Bureau of Naval Personnel, the case was heard administratively by a Field Board of Officers. At the hearing, the appellant's counsel objected inter alia to the introduction of both Agent Siler's report and the statement signed by the appellant on numerous grounds, among which were that the statement was unsworn, elicited without proper warning, misleadingly incomplete in violation of Navy regulations,² and that the report was hearsay. These objections were overruled. In conjunction with the hearsay objection, counsel further demanded the right to cross-examine Agent Siler, but he was not produced and no such opportunity was afforded.

Thereafter, the appellant took the stand and testified under oath that on the day in question he had gone to the Naval Hospital in San Francisco to escort the body of a friend, who had been killed in an automobile accident two days before, to his family. Upon arrival, however, he was taken to the morgue to identify the body, at which time an autopsy was being performed and the body was in a gruesome state of dismemberment and evisceration. Furthermore, by some misunderstanding, the appellant's name had been placed on the death certificate instead of that of the deceased.

Feeling dazed and faint, the appellant left the morgue and went directly to a certain bar in San Francisco, where he drank heavily from midafternoon until midnight, when he left while extremely intoxicated with a regular patron known to the appellant as "Chuck." This man had offered to get the appellant a hotel room, which the appellant, not desirous of wandering into the street and encountering the shore patrol, accepted. After losing consciousness or falling asleep in the hotel room the appellant awoke sometime later to find that "Chuck" was performing a homosexual act upon him. He testified that although he became aware of what was happening and willed to resist, he lacked the physical capacity to do so, due to his state of intoxication. He further testified that he had no prior suspicion that the assailant was a homosexual, nor did he believe the bar to be a hangout for homosexuals. There was no other evidence of homosexual involvement, and, in fact, a naval psychiatrist's report stated that there were no indications of homosexual orientation in the appellant's psychodynamic formulation.

The Field Board was supplied with a mimeographed form subtitled "Findings of the Board," on which were printed the following options relevant to the appellant's charge:

"( ) Sexual pervert. ( ) Committed homosexual acts. ( ) Homosexual tendencies."

The Board marked the space designating "Committed homosexual acts,"³ but recorded its recommendation that the appellant be retained on active duty. Later, the Senior Member of the Field Board wrote an endorsement dated April 28, 1966 to a letter sent by the appellant to the Chief of Naval Personnel, which stated in part:

"2. The Members of the Board were unanimously of the opinion that NELSON was the victim of a homosexual attack, and that he was not a voluntary participant in it.

"3. The Board made its Report in the form in which it was submitted because that block checked was the closest description related to the allegations. * * *

"4. The Report was in error, insofar as it may be considered that the Field Board in any way concluded that NELSON was a voluntary participant in a homosexual act. No member of the Board would have recommended retention had we in any way considered NELSON to be a homosexual. * * *"

The District Court's findings were in accord with the foregoing endorsement.

Notwithstanding the Field Board's recommendation and a subsequent recommendation by the appellant's Commanding Officer that he be retained, the appellant was ordered discharged from the service by a letter from the Chief of Naval Personnel, dated March 24, 1966, for the "convenience of the Government in accordance with reference (a), Code 21 L, `other good and sufficient reasons.'"⁴ By letter to the Commanding Officer, United States Naval Station, Philadelphia, dated July 14, 1966, the Chief of Naval Personnel reaffirmed its decision, citing Instructions of the Secretary of the Navy (SECNAVINST) § 1900.9(4) (c) that intoxication does not constitute an excuse for homosexual conduct.⁵

On March 29, 1966, notation was made in the appellant's service record pursuant to the Chief of Naval Personnel's letter of March 24, 1966, that the appellant was not to be reenlisted without his prior approval. The Navy does not propose to assign any substantive reason for discharge.

When discharged, the appellant will be issued two records of his separation from the service. The first is a formal certificate entitled "Honorable Discharge," on which no record of the details of his service will appear. The other is the actual discharge document, Form DD 214, which will indicate that the "Character of the Service" was "Honorable," but it will also state as the "Reason and Authority" for discharge, `BuPers Manual Article C-10306, Code 21L and BuPers ltr Pers-F3211-lgl of 24 March 1966," referring to "Other good and sufficient reasons (non-derogatory) when determined by proper authority." It is this second document which is invariably inspected when an ex-serviceman seeks employment.

While the proposed discharge is thus "Honorable," the uncontradicted testimony of two civilian personnel experts and the findings of the District Court indicate that the fact that a non-commissioned officer with as much service as ten years was leaving the service instead of remaining to obtain valuable retirement privileges at twenty years, together with the foregoing notation as the reason for discharge, would stimulate civilian employment interviewers to pry into the underlying reason for the appellant's separation. The evidence showed that although the appellant, if otherwise qualified, could obtain some kinds of employment outside the electronics industry, he could not gain employment in positions requiring security clearance, and would have to start on an entry level at a substantially lower income; that even in other industries he can expect to be prejudiced as to future employment because of the homosexual taint of the conditions attached to his discharge. The District Court concluded that "plaintiff's discharge for convenience of the Government * * * will in some instances * * * stigmatize plaintiff as a homosexual for civilian employment and re-enlistment purposes." It also found, however, that the notation barring appellant's reenlistment without prior approval will not be available for public examination.

The appellant has exhausted all administrative remedies available to him prior to discharge. If discharged, however, he would have access to the Board for Correction of Naval Records. Taking note of this fact and referring to its recent decision in Crawford v. Davis,⁶ the District Court held that it would not interfere with the Navy's discharge of the appellant and denied injunctive relief while explicitly retaining jurisdiction for "adjudication after final hearing."

In Crawford v. Davis, supra, the District Court correctly stated that the availability of injunctive relief depended upon four criteria:⁷

(1) Irreparable harm to the petitioner unless the stay is granted;

(2) Absence of substantial harm to other interested parties;

(3) Absence of harm to the public interest; and

(4) A likelihood that the petitioner would

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