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BERG v. CLAYTOR

May 27, 1977

VERNON E. BERG, III, Plaintiff
v.
W. GRAHAM CLAYTOR, JR., Defendant



The opinion of the court was delivered by: GESELL

GERHARD A. GESELL, District Judge: -

 Plaintiff Vernon Berg was involuntarily discharged as an officer of the United States Navy, following an administrative hearing, because of homosexual acts he committed while in the Service. He now claims that the discharge was unlawful, and seeks reinstatement and back pay. Berg asserts that homosexual activity is not, under the Constitution, a legitimate basis for discharge. He also contends that the administrative hearing was procedurally defective under the Due Process Clause and under the Navy's own regulations. Finally, he claims that the Navy discharge regulations were not validly promulgated and are void.

 There are no material facts in dispute, and the matter is now before the Court on cross-motions for summary judgment after review of the administrative record and additional data submitted by the parties. The issues were fully briefed and argued.

 I. BACKGROUND

 Plaintiff Berg is a graduate of the United States Naval Academy at Annapolis. He was an Ensign on active duty with the U.S.S. Little Rock in Gaeta, Italy, when, on July 11, 1975, the Commanding Officer requested a Naval Investigation Service ("NIS") inquiry into his sexual activity. During the NIS investigation an enlisted man serving on the Little Rock accused Ensign Berg of having attempted to perform a homosexual act upon him. Berg signed a statement admitting to participation in homosexual activity both before and during his service in the Navy. He did not admit to the alleged encounter with the enlisted man from the Little Rock. On July 24, 1975, Berg was notified that administrative proceedings for his discharge were being initiated. The next day he submitted his resignation from the Navy. After spending three weeks on duty in the Mediterranean, Berg was transferred to Norfolk, Virginia, in anticipation of dismissal. But on November 4, 1975, Berg withdrew his resignation.

 Thereafter an Administrative Discharge Board was convened on January 19, 1976, to consider Berg's case. The basic policy of the Navy towards homosexuals is contained in SECNAVIST 1900.9A, which states in part:

 
Members involved in homosexuality are military liabilities who cannot be tolerated in a military organization.

 This seemingly mandatory discharge policy has, at least in theory, been amended to make discharge discretionary. See Champagne v. Schlesinger, 506 F.2d 979 (7th Cir. 1974). The Board which considered plaintiff's dismissal was clearly instructed that it had discretion to recommend plaintiff's retention in the Navy.

 The Board had two issues before it. It was to determine whether or not plaintiff had committed homosexual acts violating Navy regulations. If so, it was instructed to make an advisory recommendation as to whether or not Berg should be retained in the Service despite such activity. Berg continued to deny that he had ever engaged in homosexual activity with naval personnel, but he did freely admit that he was bisexual and had committed numerous homosexual acts while in the Navy. This admission brought him completely within the prohibitions of the regulations. The Board recommended that Berg be discharged under other than honorable conditions. The Board report was reviewed and endorsed by the Commandant of the Sixth Naval District. On April 12, 1976, the Chief of Naval Personnel recommended that Berg be discharged, and on May 20 this recommendation was approved by the Assistant Secretary of the Navy. Berg filed this action on May 28, 1976, a temporary restraining order was denied, and on June 3, 1976, he was discharged under conditions other than honorable. On April 14, 1977, the Secretary of the Navy recommended that Berg's discharge be upgraded to honorable. This has now been done.

 II. CONSTITUTIONALITY OF DISCHARGE BASED ON HOMOSEXUAL ACTIVITY

 Plaintiff initially contends that a discharge from the Navy based on homosexual activity violates his rights to freedom of association and privacy.

 The dismissal of plaintiff due to his homosexual activity places no restriction on his right to associate with whomever he chooses, and clearly does not contravene the First Amendment. On the other hand, plaintiff's claim that his right to privacy has been invaded is more troublesome. The Supreme Court has explicitly recognized the right of privacy in sexual matters by repeatedly prohibiting interference by the state with relationships between men and women. See, e.g., Griswold v. Connecticut, 381 U.S. 479, 14 L. Ed. 2d 510, 85 S. Ct. 1678 (1965); Eisenstadt v. Baird, 405 U.S. 438, 31 L. Ed. 2d 349, 92 S. Ct. 1029 (1972); Roe v. Wade, 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973). On the other hand, it has sustained the right of the state by statute to place criminal sanctions upon forms of sexual conduct between persons of the same sex even where that conduct occurs out of public view. Doe v. Commonwealth's Atty. for City of Richmond, 403 F. Supp. 1199 (E.D. Va. 1975), aff'd, 425 U.S. 901, 47 L. Ed. 2d 751, 96 S. Ct. 1489 (1976). In the light of these precedents the Court is constrained to conclude that an individual's right to privacy does not extend to homosexual conduct even where it occurs in private between consenting adults.

 Finally, plaintiff says that the Navy policy of discharging those who have committed homosexual acts while in the Service is irrational, thus depriving him of substantive due process under the Fifth Amendment. Since the Navy policy does not impinge plaintiff's privacy or other fundamental constitutional rights, the Court must sustain the policy if it is rationally related to a legitimate governmental objective. See Kelley v. Johnson, 425 U.S. 238, 47 L. Ed. 2d 708, 96 S. Ct. 1440 (1976). The Navy does not argue that it is attempting to maintain moral standards, and it no longer argues that acknowledged homosexuals are security risks. It says simply that given the special tasks performed by the Navy, homosexuals present an obstruction to efficient operations. The Navy position is twofold. First, it contends that in a confined situation, such as aboard ship, enlisted men would react to a homosexual officer in such a way as to destroy the officer's credibility and his ability to command. The officer would be subject to ridicule and lack of respect, thus making him an ineffective leader. Second, this situation would compound the already severe pressures faced by all officers aboard ship, putting the homosexual officer in an unusually difficult position, thus further decreasing his effectiveness. The Navy says that as long as it is assigned its present fleet mission, once an officer's homosexuality is discovered, its policy of discharging homosexuals is justified. Plaintiff retorts that there are no valid studies to support this position, and that evidence in the record indicates that Ensign Berg did not have, and would not have, such problems.

 Under Kelley, the plaintiff has the difficult task of demonstrating that the Navy's policy towards homosexuals is so irrational as to be arbitrary. 425 U.S. at 248, citing Williamson v. Lee Optical Co., 348 U.S. 483, 99 L. Ed. 563, 75 S. Ct. 461 (1955). Plaintiff's evidence that he was a good officer and would not necessarily fall victim to the problems described by the Navy is not to the point. The issue is whether the concerns expressed by the Navy would apply to so few officers that a general policy against homosexuality is irrational. Plaintiff does not present any evidence that the difficulties cited by the Navy are fanciful. While there are no "studies" in the record about the problems homosexuals present in the Navy, there is testimony from a number of naval officers demonstrating that the concerns have a basis in fact and are not conjectural. This testimony generally supports the Navy's position. Given the extreme deference appellate courts have steadfastly given military procedures which were subject to constitutional attack, the Court must conclude that the Navy regulation has not been shown to be irrational. See, e.g., ...


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