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DOE v. SECRETARY OF THE AIR FORCE

February 4, 1982

John DOE, Plaintiff,
v.
SECRETARY OF THE AIR FORCE, Defendant



The opinion of the court was delivered by: RICHEY

 CHARLES R. RICHEY, District Judge.

 This matter is before the Court on plaintiff's motion for summary judgment and defendant's cross-motion for summary judgment. Plaintiff herein alleges that his discharge from the Air Force violated his rights under the Administrative Procedure Act and the Due Process clause of the Fifth Amendment to the Constitution. Plaintiff also alleges that the imposition of a less than honorable discharge violated Air Force regulations. The Air Force contends that it acted properly in discharging plaintiff with an other than honorable discharge based on its finding that he committed homosexual acts with a fifteen-year-old boy.

 I. FACTS OF THE CASE

 In December of 1979, plaintiff, a major in the United States Air Force, received notice that action was being initiated to discharge him under AFR 36-2, based on an investigation which revealed that he had engaged in homosexual activity on more than one occasion with the fifteen-year old son of another Air Force officer. A Selection Board convened and considered the evidence, and determined that the Board of Inquiry should be convened and that plaintiff should show cause as to why he should be retained in the Air Force. The Board met on March 3, 1980, and determined that plaintiff had engaged in one or more homosexual acts during his current tour of duty and recommended that he be discharged under conditions other than honorable. Pursuant to Air Force regulations, the recommendation was forwarded to a Board of Review. Plaintiff petitioned to reconvene the Board of Inquiry to consider additional arguments. On December 11, 1980, plaintiff filed an original complaint in this action. Plaintiff sought an injunction against the pending Air Force proceedings, arguing that the Secretary was knowingly and willingly refusing to comply with the Court of Appeals Order in the case of Matlovich v. Secretary of the Air Force, 192 U.S. App. D.C. 243, 591 F.2d 852 (D.C.Cir.1978). Plaintiff also sought a declaration of his entitlement, if separated, to an honorable discharge. In response, the government moved to dismiss the action. The Court, upon oral argument, denied plaintiff's request for preliminary relief and granted the government's motion to dismiss without prejudice for failure to exhaust administrative remedies. Plaintiff appealed this Court's Order denying preliminary relief and on February 20, 1981, moved for summary reversal or for an injunction pending appeal. Both motions were denied April 14, 1981. However, on May 6, the Secretary issued a final order discharging plaintiff from the Air Force. Plaintiff sought from this Court a temporary restraining order against his discharge, which was denied.

 On May 7, plaintiff filed an unopposed motion in the Court of Appeals for remand of the case to this Court. The Court of Appeals granted the motion and plaintiff filed the instant dispositive motion.

 Plaintiff challenges his discharge on two grounds: the first is procedural and the second substantive. Procedurally, plaintiff claims that the lack of "adequate standards for the homosexual discharge exception policy" and the "absence of specific findings and statement of reasons" for his discharge has violated his right to due process. Substantively, plaintiff challenges the character of the discharge as "under other than honorable conditions" alleging that the character of the discharge must be determined solely by the officer's military record.

 II. IN DISCHARGING THE PLAINTIFF, THE AIR FORCE DID NOT VIOLATE THE PLAINTIFF'S DUE PROCESS RIGHTS

 Plaintiff challenges his discharge on procedural grounds alleging that the lack of adequate standards for the homosexual discharge policy and the absence of specific findings and statement of reasons for his discharge have violated his right to due process. Plaintiff relies on the case of Matlovich v. Secretary of the Air Force, in which the Court held that it was unable to determine from the record why the Air Force had not retained Sergeant Matlovich under the "exceptional circumstance" exception to the general policy of discharging homosexuals. The Court of Appeals concluded that they were

 
at sea as to the circumstances -- aside from the exception for youths -- in which the Air Force makes exceptions to its policy of eliminating homosexuals and when it refuses to make an exception. The absence of articulated standards, policies or considerations -- plus the absence of any reasoned explanation in this particular case -- makes it impossible to decide whether or not there has been an abuse of discretion in this instance or whether improper factors have played a material role. . . .
 
We do not say at this stage, because we do not know, that the Air Force cannot justify appellant's discharge. What we say is that the Air Force should explicate more fully its reasons for refusing to retain appellant -- as its regulation provides that it may do and its practice shows that it has done in other cases -- so that the Court can decide if it was arbitrary, capricious, or unlawful in exercising its discretion whether or not to retain Matlovich.

 192 U.S. App. D.C. 243, 591 F.2d 852, 856-7 (D.C.Cir.1978) (footnote omitted). The Court further held that the Air Force could either promulgate written criteria for the homosexual discharge exception policy or formulate the standards through case-by-case decision making. 591 F.2d at 861.

 Defendant, on the other hand, contends that the plaintiff was dismissed pursuant to Air Force regulations which provide that it is the general policy of the Air Force to discharge officers who engage in homosexual activity. See AFR 36-2. They further contend that pursuant to the Matlovich decision, the Air Force may properly proceed on a case-by-case basis and that therefore the discharge of this plaintiff must be judged on its facts; and, if the record indicates that the Air Force's refusal to grant him an exception to the ...


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