denying his request for a full upgrade to Honorable. The BCMR applied the discharge characterization standards then in effect but made no finding that Mr. Clark's alleged homosexuality affected his performance of military duties. Plaintiffs' Statement of Material Facts Not in Dispute ("Plaintiffs' Statement"), para. 12.
Plaintiff Janet Black was separated from the Air Force for homosexuality in 1953, and issued an Undesirable Discharge. Complaint, para. 27. During her period of service, Ms. Black received three summary court-martial convictions and performed poorly in technical school. Plaintiffs' Exhibit 14, Air Force DRB Decisional Rationale, Findings. Ms. Black agreed to accept an Undesirable Discharge for the good of the service in lieu of further adverse action. Id.
In 1981, Ms. Black petitioned the Air Force DRB for recharacterization of her discharge to Honorable. This request was denied in 1982, whereupon Ms. Black applied to the BCMR for the same relief. The BCMR applied the discharge characterization then in effect and denied Ms. Black's application in October 1984. The BCMR made no finding that Ms. Black's homosexual conduct affected her performance of military duties. Plaintiffs' Statement, para. 14.
Plaintiff Lilli M. Vincenz was separated from the Army in 1963, and received a General Discharge. Complaint, para. 30. During her period of service, Ms. Vincenz engaged in homosexual liaisons with other service members, including one encounter on post during which she was observed by her roommate. Plaintiffs' Exhibit 15, Statement of Private Patricia J. Clancy; id., Statement of Ms. Vincenz. Ms. Vincenz waived any hearing before a board of officers and accepted her discharge. Id.
In 1981, Ms. Vincenz applied to the Army BCMR for recharacterization of her discharge to Honorable. The BCMR applied the discharge characterization standards then in effect and denied Ms. Vincenz's application in August 1982. Plaintiffs' Exhibit 15. The BCMR made no finding that Ms. Vincenz's homosexual conduct affected adversely her performance of military duties. Id.
Plaintiff John Doe was separated from the Navy for homosexuality in 1958, and issued a General Discharge. Complaint, para. 32. One week after his enlistment, Doe admitted that he was a homosexual. Defendants' Statement of Undisputed Material Facts ("Defendants' Statement"), para. 7.
Doe did not mention this fact when he enlisted. Id.
In September 1981, Doe applied to the Naval BCMR for recharacterization of his discharge to Honorable. The BCMR applied the discharge characterization standards then in effect and denied Doe's application in July 1982. The BCMR made no finding that Doe's pre-service homosexual conduct affected his performance of military duties. Plaintiffs' Statement, para. 15.
Organizational plaintiff National Gay Task Force ("NGTF") is a nonprofit organization created for the purpose of advancing the rights and protecting the interests of individuals who are gay or lesbian. Complaint, para. 7. Plaintiffs allege that there are over 10,000 members of NGTF, many of whom are currently serving in the United States Armed Forces. Id.
Organizational plaintiff Gay Veterans Association, Inc. ("GVA") is a nonprofit corporation created for the purpose of advancing the rights and protecting the interests of individuals who are gay or lesbian and who have served, or are now serving, in the United States Armed Forces. Complaint, para. 2. Many of GVA's members have received discharges for homosexual conduct, homosexuality, homosexual "tendencies," or consented to resign in lieu of court-martial proceedings. Id.
Plaintiffs' first claim is that defendants do not have statutory or constitutional authority to characterize administratively the service of personnel discharged from military service. Complaint, paras. 17-20. In the alternative that the Court rejects plaintiffs' first claim, claims 2, 4, and 5 are offered to challenge defendants' regulations that permit a less-than-honorable characterization of service for those discharged for homosexuality, homosexual conduct, or homosexual tendencies without regard to whether the offending activity or status had an adverse impact on performance of military duties or the service in general. Complaint, paras. 21-45, 48-52. In their third claim, the individual plaintiffs challenge the DRB and BCMR decisions in their cases on the ground that the DRB's and BCMR's failed to find any adverse impact on performance of military duties attributable to homosexual behavior. Complaint, paras. 21-47.
A. Subject Matter Jurisdiction
Defendants argue as a threshold matter that plaintiffs lack standing, that this case is not ripe for judicial action, and that plaintiffs have failed to exhaust their administrative remedies. Defendants' jurisdictional argument is nothing less than disingenuous.
The Court resolved these issues in Bittner v. Secretary of Defense, 625 F. Supp. 1022 (D.D.C. 1985) (" Bittner "). Plaintiffs, represented by the same attorneys as in Bittner, filed subsequently the present action. The Court observed that the two actions resembled each other in almost every respect. Plaintiffs conceded this point and the Court issued an order dated December 10, 1985, dismissing Bittner for reasons of judicial economy. The order stated further that the various issues decided in Bittner would have a binding effect on the parties to this action. No objection was raised by defendants.
B. Defendants Possess Sufficient Authority to Characterize Administrative Discharges
Plaintiffs charge that defendants lack clear statutory authority to characterize administratively an individual's military service as less than honorable. Citing Bland v. Connally, 110 U.S. App. D.C. 375, 293 F.2d 852, 858 (D.C. Cir. 1961) (" Bland "), plaintiffs frame the issue as a challenge to the military's right "to introduce the element of punishment or 'labeling' into the involuntary separation, by characterizing the discharge derogatorily."
The Court turns first to Chapter 59 of the Armed Forces Statute addressing separation from the service, 10 U.S.C. §§ 1161-1174 (1982). There, one finds section 1169:
No regular enlisted member of an armed force may be discharged before his term of service expires, except --
(1) as prescribed by the Secretary concerned;