plaintiff having previously denied he was given the names of participants, plaintiff stated that he had supplied those names. It must be remembered that the plaintiff has at no time denied the charges; furthermore, that he has testified that he had certain information as to occasions but not as to activities. The latter he attributed to loss of memory after drinking.
Plaintiff called as a witness Dr. Frank Caprio, a qualified psychiatrist, who saw and examined him on the 17th of August, 1959. It was his opinion that plaintiff was not a homosexual, nor suffering from any nervous or mental disorder. In essence, the Doctor concluded that plaintiff had been shocked and was very disturbed. He expressed the opinion that plaintiff was not capable of exercising wise or good judgment for his welfare, between March 9, 1959, and March 12, 1959.
Several fellow officers who had frequent contacts with plaintiff over a substantial period (both prior to and during the critical period here involved) testified that plaintiff was not in a state of shock but was clearly conscious of what he was doing, even to the extent of drafting important provisions for insertion in his resignation. It was their testimony that his judgment was not warped.
The court concludes that the plaintiff was concerned about his predicament, as any normal person would be, but the record does not support plaintiff's contention that he was affected to such a degree that he was not able to make use of his mental faculties appropriately, within the time prescribed to consult counsel as to the matter of resignation or as to his selection of that course of action over the other alternatives offered.
The court further concludes that the fact that the complete file of charges against plaintiff was not permitted to go to the Walker Base for use by a possible prospect to serve as attorney for plaintiff is not of such magnitude as to constitute a denial of opportunity to obtain counsel. This is especially true in the light of the entire record.
The court, on the overall record, is constrained to hold that the specific question put for determination by the mandate of the Court of Appeals must be answered in the affirmative. The court finds that under all of the facts the plaintiff had adequate time, even though it be concluded that there was a seventy-two-hour limitation between notification and his resignation, to consult with legal counsel. Military counsel were available at plaintiff's base; civilian attorneys were located in the town where plaintiff was situated; plaintiff was free to go when and where he pleased and had, according to his own testimony, air transportation at his service. This meant that, even with the adopted time limitation, distance, even if an element, was not controlling. Assuming, as has been done, that there was a seventy-two-hour limitation between formal notification and the lodging of the resignation, it must be borne in mind that plaintiff was put on notice, as early as December, 1958, as to what was in the offing, and was to a degree kept advised of developments. Prior to formal notification a fellow officer told plaintiff, in response to query put by plaintiff, that the situation looked bad.
The court further holds that on the record plaintiff was vested with sufficient judgment properly to determine the advisability of consulting with legal counsel as to whether a resignation was in his best interest. The court still further finds that the plaintiff freely and voluntarily executed his resignation. The court further holds that no regulation was violated.
As to the contention of plaintiff that AFR 35-66, 17 March 1959, should be applied to his case: The court concludes that the said regulation is not applicable. The court finds no reason for taking a regulation which by its terms is made effective on a future date and applying it to a case which has been already processed.
The court has also for determination the following question:
Did the Air Force afford the plaintiff such medical examination as was required?
Plaintiff contends that his physical examination was superficial and inadequate in that no psychiatric examination was made nor electrocardiogram taken. The record before the court shows that plaintiff was given a regular examination, and furthermore it reflects the testimony of Dr. Eason, the medical officer and examining physician, that in his judgment no psychiatric examination was indicated nor was an electrocardiogram. No regulation has been shown to the court which requires either of these particular examinations as a matter of right under the facts here. Reason dictates a conclusion that the examining officer, a qualified medical officer, had the right and duty to exercise his medical judgment. His conclusion as to no need for psychiatric examination is confirmed by the testimony of plaintiff's witness, Dr. Frank Caprio, a psychiatrist, who examined plaintiff on August 17, 1959, and found plaintiff to be then free of any nervous or mental disorder. As to the absence of an electrocardiogram, there is no requirement therefor unless the officer be forty years old or over, or there is a finding suggestive of cardiac abnormality. The plaintiff was thirty-nine years of age, and the examining medical officer has testified that in his judgment an electrocardiogram was not indicated.
The court finds that there was no violation of any regulation as to physical or mental examination of the plaintiff.
This memorandum may be used in lieu of findings of fact and conclusions of law.
From what has been hereinbefore set forth, it follows that the complaint of the plaintiff must be dismissed.
It is therefore, this 5th day of November, 1964, ordered that the complaint be, and the same is hereby, dismissed.
After preparation of this memorandum plaintiff's counsel, by letter of November 5, 1964, referred the court to Question No. 72,
in Plaintiff's Exhibit No. 10 (in evidence), which was left blank. The court has again considered this matter, but finds it to be of no probative value in the light of the testimony in the case, and for the further reason that, in the same Exhibit, Question No. 42, 'Psychiatric (Specify any personality deviation)', shows the 'Clinical Evaluation' to be normal.