Schwartz v. Covington

• Decision Date: 10 February 1965
• Docket Number: No. 19444.,19444.
• Citation: 341 F.2d 537
• Parties: J. W. SCHWARTZ, individually and as Commanding General of the United States Army, Letterman General Hospital, et al., Appellant, v. Napoleon COVINGTON, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

341 F.2d 537 (1965)

J. W. SCHWARTZ, individually and as Commanding General of the United States Army, Letterman General Hospital, et al., Appellant, v. Napoleon COVINGTON, Appellee.

No. 19444.

United States Court of Appeals Ninth Circuit.

February 10, 1965.

John W. Douglas, Asst. Atty. Gen., Alan S. Rosenthal, Robt. V. Zener, Dept. of Justice, Washington, D. C., Cecil F. Poole, U. S. Atty., San Francisco, Cal., for appellants.

James P. Preovolos, San Francisco, Cal., for appellee.

Before ORR, BARNES and KOELSCH, Circuit Judges.

ORR, Circuit Judge:

On April 21, 1961, at the expiration of an enlistment prior to the one under consideration here, appellee, a Sergeant in the United States Army, was given an honorable discharge, with a recommendation for re-enlistment. At the time of the 1961 discharge, appellee had completed 16 years of active military service, including duty in World War II and the Korean War. His conduct was such that he was awarded many decorations and his record was devoid of disciplinary action of any character. An investigation was made in 1960 relative to an alleged involvement by appellee in homosexual activity. During said investigation statements were taken from certain individuals. Without any ultimate finding the investigation was soon closed and no action taken.

Within three days after his honorable discharge in 1961, appellee re-enlisted. Subsequently, while stationed at Letterman General Hospital, San Francisco, a further investigation into alleged homosexual activity was undertaken by the Army. On October 2, 1962, a board of officers was convened, pursuant to Army Regulation No. 635-89, to consider the matter. The proceedings before this board were disapproved by the Adjutant General, on the ground of procedural defects, and a new board was ordered convened.

At the second hearing, beginning May 14, 1963, one witness was called who testified to a somewhat ambiguous so-called advance by appellee. Evidence in the form of a deposition taken in Washington, D. C. was introduced; it concerned another alleged homosexual advance made by appellee. In addition, statements of five persons, taken during the 1960 investigation, were admitted over objection. The purpose of these was to show similar prior acts. All of the alleged incidents, except the one testified to by the witness who appeared, occurred before appellee's honorable discharge in 1961. Further, an Army psychiatrist testified that in his opinion appellee was a homosexual. He said that this conclusion was based upon interviews with appellee evidencing certain difficulty appellee had relating to both men and women, upon admittedly inconclusive psychological tests, and upon statements, hereinbefore referred to, of alleged advances made by appellee.

Appellee denied all of the alleged incidents. Admitted on behalf of appellee was the report of a Captain Dorison a competent psychiatrist, who found in 1960, at the time of the first investigation, no reason to suspect appellee of homosexuality. Also admitted were statements and testimony from persons, including a physician, with whom appellee worked, who testified as to his efficiency and his behavior.

The board recommended that an undesirable discharge be issued, and appellee was ordered processed for discharge. Appellee at this point sought declaratory and injunctive relief in the United States District Court, pursuant to 28 U.S.C. §§ 2201, 2202, and 5 U.S.C. § 1009. He alleged that the board acted in an arbitrary and capricious manner and contrary to law, and that, if discharged, he would suffer irreparable injury. The District Court granted a stay of discharge pending exhaustion of military remedies and judicial review by a United States District Court, during which time appellee retain his present rank and status. The military remedies available to appellee included review before the Army Board...