The opinion of the court was delivered by: HOLTZOFF
This is an action brought by an officer of the regular Army against the Secretary of the Army, the Under Secretary and the Adjutant General, to enjoin them from removing him from the active list pursuant to elimination proceedings conducted under 10 U.S.C. § 3781 et seq., which established a procedure for dismissing officers of the regular Army on certain specified grounds. It is contended in behalf of the plaintiff that the statute is unconstitutional, and accordingly this three-judge court was convened. The attack on the statute is based on the claim that it is violative of due process of law under the Fifth Amendment in that it places the burden of proof on the officer to show cause for his retention on the active list; and in that it fails to require that he be confronted with witnesses against him. The matter is now before the Court on the plaintiff's motion for a preliminary injunction, and on cross-motions for summary judgment. We hold that the statute is valid.
The statute, 10 U.S.C. § 3781 to § 3797, became law on August 10, 1956, 70A Stat. 218, and was amended and expanded by the Act of July 12, 1960, 74 Stat. 386. In brief, it authorizes the Secretary of the Army to convene a board of officers at any time to review the record of any commissioned officer on the active list of the regular Army, in order to determine whether he should be required to show cause for his retention on the active list because his performance of duty had fallen below the standards prescribed by the Secretary, or because of moral or professional dereliction, or because his retention would not be clearly consistent with the interests of national defense. It is provided further that Boards of Inquiry, composed of three or more officers, shall be convened to receive evidence and make findings and recommendations whether such an officer should be retained on the active list of the regular Army. The statute expressly requires the board to give the officer a fair and impartial hearing. If the Board of Inquiry determines that the officer has failed to establish that he should be retained on the active list, it is required to send the record of its proceedings to a Board of Review. The Secretary of the Army is authorized to convene Boards of Review, each composed of three or more officers, to review the records of officers recommended by Boards of Inquiry for removal from active service. If such a Board determines that the officer has failed to establish that he should be retained on the active list, it transmits its recommendation to the Secretary, who in that event is authorized to remove the officer from active service. The Secretary's action is final and conclusive. Admittedly this statute has been construed as placing upon the officer the burden of proving that he should be retained in the service.
It must be emphasized that the statute is not intended to provide a judicial trial or even a quasi-judicial hearing on specific charges. It merely prescribes an administrative routine for the elimination of officers who are deemed unsuitable.
The present proceeding arose out of the following facts. The plaintiff, J. B. Beard, is a Lieutenant Colonel in the United States Army, in which he has served for about nineteen years, having been inducted as a private and then worked his way up through the ranks. He has had an excellent record, and during World War II he received a Bronze Star Medal for gallantry in action. He is married and lives with his wife and five children. During the pertinent period he was stationed at Fort Monroe, Virginia.
This case had its origin in an episode that took place on September 21, 1960. That morning the plaintiff arrived in Washington, for a two-day official conference at the Pentagon. After the first day's session he took a walk about the city during the early evening. As he was passing the YMCA, he entered the building and went downstairs to the men's room. When he returned to the lobby and was about to leave, a stranger stared at him and made a hardly perceptible nod in the direction of the stairs. The stranger then went down toward the men's room and the plaintiff turned around and followed him. According to the police officer involved in the matter, a conversation ensued between them. It began with an exchange of innocuous remarks and then in rather vulgar phraseology the stranger indicated to the plaintiff that he was looking for a partner for a homosexual act. The plaintiff made a reply that seemed to acquiesce in the stranger's suggestion and also touched the stranger's body through his clothing in an indecent manner. The stranger then identified himself as a police officer, exhibited his badge, and placed the plaintiff under arrest.
Subsequently, a Removal Selection Board appointed by the Secretary of the Army to review the records of commissioned officers determined that the plaintiff should be required to show cause for his retention on the active list. Accordingly, on July 3, 1961, a formal notice was issued to the plaintiff notifying him to that effect and enumerating the following reasons:
(a) an existence of homosexual tendencies;
(b) conduct unbecoming an officer.
A Board of Inquiry, composed of two Major Generals and one Brigadier General, was then convened and met at Norfolk, Virginia on July 19 and 20, 1961, devoting two days to this matter. The transcript indicates that the proceedings were conducted patiently and thoroughly, and that full opportunity was accorded to the plaintiff, who was represented by military counsel, to present evidence not only concerning the specific facts involved in the case, but also regarding his military record and character. The evidence in behalf of the Army was presented by an official known as 'Recorder'. It was entirely documentary. As proof of the incident that took place at the YMCA in Washington, there was introduced a formal written statement contemporaneously prepared by the detective. Counsel for the plaintiff had requested that the latter be produced in person, in order that he might be subjected to cross-examination. Efforts to obtain his presence were made by the Board, but proved unavailing because the Metropolitan Police Department declined to pay his expenses to Norfolk, and the Board lacked subpoena power. At the hearing, the plaintiff's counsel stated that his client was most appreciative of the efforts made to secure the attendance of the police officer. Actually, since there were no substantial discrepancies between the two narratives, and as the crucial question was what were the plaintiff's intention and mental operations in engaging in the encounter with the police officer, the presence of the latter could hardly have thrown very much light on this vital issue. The documentary evidence introduced by the Army further showed that on one occasion when stationed in the Pacific during the War, the plaintiff had been a passive victim of a momentary, unconsummated homosexual attempt on the part of another officer. This information was elicited from the plaintiff during exhaustive interviews with him after the incident in Washington.
An Army psychiatrist, who had examined the plaintiff in behalf of the Army, was called as a witness by the plaintiff. He expressed the view that the plaintiff was not a homosexual and recommended that the plaintiff be retained in the Army, but also suggested that the plaintiff receive psychiatric out-patient treatment, preferably in a civilian facility. The plaintiff testified at length in his own behalf and was searchingly cross-examined. He maintained throughout that he had no intention to engage in any homosexual practice, but that the had participated in the conversation with the detective, thinking that the latter was a homosexual, merely to satisfy his curiosity as to how such persons reacted. He admitted that his conduct had been very foolish. Witnesses were called and documentary evidence submitted showing the high quality of the plaintiff's military record, and attesting to his good character and reputation.
The Board of Inquiry then made the following findings and recommendations:
'1. As to the allegation of existence of homosexual tendencies, that cause for retention has not been shown. This finding is based on the following reason:
The evidence presented by the respondent has not refuted nor rebutted the homosexual tendencies exhibited by the actions which took place in the YMCA, Washington, D.C., on the night of 21 September 1960.
'2. As to the allegation of conduct unbecoming an officer, that cause for retention has not been shown. This finding is based on the following reason:
The actions of the respondent in permitting himself to be lured by a complete stranger into a latrine, and in that latrine acting in such a manner as to cause his arrest, are completely incompatible with the conduct expected of an officer.
'In view of such findings, the Board recommends:
'Elimination, and that a General Discharge, under Honorable Conditions, be issued.'
This action came before a Board of Review, composed of a Major General and two Brigadier Generals, on October 24, 1961. Such a Board proceeds ex parte solely on the record before the Board of Inquiry, and neither the respondent nor his counsel appear or is heard. It made the following findings and recommendations:
'The Army Board of Review for Eliminations, having reviewed the records of this case, in closed session and by secret written ballot, the majority of the members of the Board concurring, finds:
That Lt. Col. J. B. Beard, 084450, AGC has failed to show cause why he should be retained in the Army.
'The Army Board of Review for Eliminations, in closed session and by secret written ballot, the majority of the members of the Board concurring, recommends ...