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WOODWARD v. MOORE

May 31, 1978

JAMES MARK WOODWARD, Plaintiff,
v.
COMMANDER J. A. MOORE, et al., Defendants


Barrington D. Parker, District Judge.


The opinion of the court was delivered by: PARKER

Barrington D. Parker, District Judge:

 James M. Woodward, a former United States Naval Air Reservist, brings this action against several defendants including his former immediate commanding officer, the Secretary of the Navy and other Navy officials, seeking reinstatement to active duty in the United States Navy, back pay and other relief.

 Cross motions for summary judgment have been filed by the parties. After a consideration of the administrative record, memoranda of points and authorities, and argument of counsel, the Court determines that the defendants are entitled to summary judgment and the complaint should be dismissed.

 I.

 The uncontroverted material facts may be briefly stated. Plaintiff Woodward was commissioned as an Ensign in the United States Naval Reserve in October, 1972. He was assigned to active duty status, received additional training as a naval flight officer, and served in that capacity through the summer of 1974. In September, 1974, after Woodward was seen in an officers' club associating with an enlisted man who was being separated from duty for homosexual activities, he admitted to his commanding officer that he had homosexual tendencies. Because of these matters plaintiff was requested to resign. He refused to do so, explaining that he wanted to finish his term of obligated service. His commanding officer, Commander Moore, then advised him that he would be administratively separated. On September 27, 1974, a recommendation was submitted to the Chief of Naval Personnel that plaintiff be administratively processed for discharge under favorable conditions.

 That recommendation was not accepted and on October 4, 1974, the Chief of Naval Personnel ordered plaintiff to report for separation processing. Thereafter, on October 22, he was released from active duty and assigned to a reserve position in California, where he served until February, 1975. Later, at plaintiff's request, he was released from further active reserve duty. He applied for relief before the Board of Correction of Naval Records, claiming error in the action by the Chief of Naval Personnel. The application was denied. Woodward remains an Ensign in the Naval Air Reserve and he has not been discharged from the Navy.

 II.

 It is a well-established proposition that officers in the armed forces of the United States have no constitutional right to be promoted or retained and their services may be terminated at any time with or without reason. Pauls v. Secretary of Air Force, 457 F.2d 294, 297 (1st Cir. 1972). As a reserve officer, the plaintiff's change in status was a matter committed to the sole discretion of the Secretary of the Navy or the President of the United States. As the Supreme Court noted in commenting on the 1916 statute that created the Naval Reserve Force: *fn1"

 
It is quite evident . . . that members of this force occupied two statuses, one that of inactive duty, and the other of active service. It is further clear that it was within the power of the President, and of the Secretary of the Navy acting for him, to change the members of the Reserve Force from one status to the other. . . . Orders releasing individuals from active service and putting them on inactive duty were clearly within the power of the President and of the Secretary of the Navy acting for him in the administration of the act.

 Denby v. Berry, 263 U.S. 29, 33, 68 L. Ed. 148, 44 S. Ct. 74 (1923).

 Title 10 U.S.C. ยง 681, the current statute relative to the service and assignment of reservists, provides in part:

 
(a) Except as otherwise provided in this title, the Secretary concerned may at any time release a Reserve under his jurisdiction from active duty.

 This statute has been recognized as clear authority for the release of a reservist from active duty with the determination of the conditions and circumstances governing such release remaining within the sound discretion of the Secretary of the Navy. Abruzzo v. United States, 206 Ct. Cl. 731, 513 F.2d 608 (Ct. Cl. 1975); Denton v. United States, 204 Ct. Cl. 188 (1974), cert. denied, 421 U.S. 963, 44 L. Ed. 2d 449, 95 S. Ct. 1949 (1975); Mercereau v. United States, 155 Ct. Cl. 157 (1961). The use of Woodward's admission of homosexual tendencies and his association with homosexuals as a basis for the exercise of that discretion did not result in invidious discrimination in violation of due process, nor in a violation of his right to freedom of association. Berg ...


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