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BITTERMAN v. SECRETARY OF DEFENSE

December 14, 1982

MURRAY BITTERMAN, Plaintiff,
v.
SECRETARY OF DEFENSE, ET AL., Defendants



The opinion of the court was delivered by: GASCH

 This case presents the question of whether the United States Air Force can constitutionally enforce its dress regulation, AFR 35-10, which has been interpreted as prohibiting plaintiff from wearing a yarmulke while in uniform on active duty.

 Plaintiff, Sergeant Murray Bitterman, is a member of the United States Air Force and is presently stationed at Vandenburg Air Force Base as an air traffic controller.

 Plaintiff originally joined the Air Force on January 31, 1977 under the Delayed Enlistment Program. On May 5, 1977 plaintiff was entered on active duty and subsequently completed basic training. Plaintiff's first duty station was Holloman Air Force Base, New Mexico. On June 6, 1980, plaintiff voluntarily reenlisted in the Air Force for a period of five years and received a reenlistment bonus of $9,863.70. *fn1" At that point in time, plaintiff, in spite of his knowledge that conflicts existed between his religious beliefs and Air Force requirements, acknowledged that "many laws, regulations, and military customs will govern my conduct and require me to do many things a civilian does not have to do." On October 4, 1980, plaintiff was reassigned to the 392d Communications Group, Vandenburg Air Force Base, California, as an air traffic controller. On May 24, 1982, plaintiff, after learning of the Court's decision in Goldman v. Secretary of Defense, No. 81-1522 (D.D.C. April 26, 1982), approached his superior officer requesting permission to wear his yarmulke while in uniform. This request was denied. Plaintiff filed his complaint herein on May 27, 1982, at which time he moved for a temporary restraining order. After a hearing the Court denied plaintiff's motion and set a hearing on plaintiff's motion for preliminary and permanent injunctions and a trial on the merits for June 17, 1982. On June 17, 1982, the Court denied defendants' motion to dismiss and, in addition, took plaintiff's motion for injunctive relief under advisement.

 Pursuant to joint stipulations, the parties agreed that plaintiff is a member of the Orthodox Jewish Faith, that plaintiff wears a yarmulke pursuant to the well-established traditions of such religion, but that plaintiff has not worn his yarmulke while in uniform because of the prohibition of AFR 35-10 even though the wearing of his yarmulke would not interfere with his duties as an air traffic controller. In addition, the parties stipulated that Dr. Howard Rossman, former physician with the Air Force, would testify that he wore a yarmulke while on active duty between the years 1974 and 1976 pursuant to the permission of the Air Force.

 During the trial of this action, Dr. Samuel Levinson, a clinical psychologist and retired Air Force colonel, testified that in his opinion the wearing of yarmulkes by uniformed personnel on active duty would have a minimal effect on the Air Force. However, Dr. Levinson also testified that his opinion was based neither upon any studies that he had conducted or read, nor upon any material gathered pursuant to scientific method.

 In presenting their defense to this action, defendants called Lieutenant General Andrew P. Iosue, Deputy Chief of Staff of the Air Force for Manpower and Personnel. In this capacity, General Iosue has responsibility for general supervision of all personnel, military or civilian, assigned to the Air Force. In addition, General Iosue has general responsibility for adherence to the requirements of AFR 35-10. *fn2" In his past military service, General Iosue has held four major commands, two of which were during the Viet Nam conflict. General Iosue has served in the Air Force personnel area for a period of approximately ten years. On the basis of the General's entire duty experience, the Court concludes that with regard to matters involving military personnel, General Iosue is qualified to express an expert opinion.

 He testified that AFR 35-10 is a comprehensive regulation outlining the requirements and standards of dress and neatness required of all members of the Air Force. Additionally, the General testified that the mission of the Air Force is to be an instrument of national defense with responsibility for attaining the objectives delineated by the Commander-in-Chief. In establishing and maintaining a combat-ready fighting force, the General testified, there are five major considerations involved in such a task: teamwork, motivation, discipline, esprit de corps, and image. The General further testified that all five of these factors are furthered by AFR 35-10 as follows:

 
1. The uniform dress requirement leads to teamwork as all individuals are required to wear a standard uniform;
 
2. The uniform dress requirement promotes and enhances motivation in that individuals from diverse backgrounds are assimilated into a unit and issued a standard uniform thereby encouraging a unified force;
 
3. The uniform dress requirement promotes discipline as compliance with the regulation manifests a disregard for personal preferences and evinces self-discipline and an obedience to the team concept;
 
4. The uniform dress requirement promotes esprit de corps thereby providing the pride and self confidence necessary to an effective fighting force; and
 
5. The uniform dress requirement promotes the image of the Air Force by setting it aside as a military, regimented cohesive unit working together to achieve its mission.

 Significantly, Dr. Levinson, on cross-examination, testified that the five factors listed above promote the overall objectives of the Air Force. Consistent with this testimony, General Iosue testified that on two prior occasions, deviations or perceived deviations, from the uniform dress requirement tended to undermine the achievement of these five factors. On an occasion, a squadron in Southeast Asia, failing to adhere to the uniform dress requirement, was a less effective organization than other units and, importantly, began to improve when strict adherence to the dress standards was enforced; the General testified that there is a direct correlation between mission performance and adherence to the dress requirement.


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