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LTJG v. ASPIN

September 28, 1993

LTJG RICHARD DIRK SELLAND, Plaintiff,
v.
LES ASPIN, et al., Defendants.



The opinion of the court was delivered by: LOUIS F. OBERDORFER

 Plaintiff, Lieutenant (J.G.) Richard D. Selland, is before the Court on his motion for a preliminary injunction that would bar the Secretaries of Defense and Navy from separating him from the Navy on the basis of homosexual orientation.

 I.

 The essential undisputed facts are that the Chief of Naval personnel has reported to the Secretary of the Navy that

 
[plaintiff] is a regular Supply Corps officer with two years commissioned service . . . [who] has been recommended for administrative separation with an Honorable discharge.

 Administrative Record (A.R.) at 4. Noting plaintiff's two objections to his separation, the Chief advised the Secretary that (1) plaintiff had appropriate notice that "he was being considered for administrative separation based on homosexuality as evidenced by his admission that he is a homosexual," and (2) "neither [Defense Department] guidelines nor policy concerning the retention of homosexual [sic] contains any . . . provision [that] the Navy must allege misconduct, in addition to status, in order to separate an officer based on his homosexuality." In conclusion the Chief recommended that the Secretary "separate [plaintiff] from the Naval Service with an Honorable Discharge . . . . The separation code will be GRB (homosexuality admission)." Id.

 On May 21, 1993, an Acting Secretary of the Navy advised an Assistant Secretary of Defense that the Secretary of the Navy had approved an honorable discharge but had not yet directed separation and recommended that plaintiff's case be referred to the Attorney General for determination of whether or not the discharge should be suspended.

 On July 2, 1993, the General Counsel of the Defense Department advised the Attorney General that plaintiff's case and one other

 
have been processed in accordance with Department of Defense policies and procedures governing administrative separation of military personnel for homosexuality. They are based only on acknowledged homosexual 'status,' as opposed to homosexual conduct. . . . The Separation Authority has determined that separation is warranted under established policies and procedures.

 A.R. at 2 (emphasis supplied). The General Counsel further reminded the Attorney General of her authority to direct that plaintiff's discharge be suspended. If she directed suspension, plaintiff would be "separated from active duty and placed in the standby reserve" with the option to return to active duty upon request should the current policy be changed. Id. Those individuals whose cases are not suspended would be discharged.

 On August 9, 1993, the Associate Attorney General advised the General Counsel that the Attorney General had delegated to him her authority to

 
suspend final discharges in 'acknowledged homosexual status' cases given to the Attorney General by the President in his January 29, 1993 directive establishing an interim policy regarding homosexuals in the military.

 A.R. at 1. The Associate Attorney General reminded the General Counsel that, on July 19, 1993, the President "announced a new homosexual policy for the military and . . . the Secretary of Defense directed that the interim policy and . . . procedures remain in effect until October 1, 1993." Id. He concluded that "the discharge is hereby suspended until the President's policy on homosexuals in the military . . . becomes effective." Id. (emphasis added). That date is October 1, 1993. Thus, for ought that appears, unless restrained the defendants will automatically discharge plaintiff on, or soon after, that date, without any further administrative consideration of his case.

 Plaintiff appears to be in a situation resembling that of a sparrow caught in a badminton game. Despite taunts from shipmates about their belief that he was homosexual, he creditably performed his duties as the supply officer on a nuclear submarine. As the taunts escalated when homosexuals in the armed services surfaced as an issue in the 1992 presidential campaign, plaintiff confided in his Chaplain about the discomfort the taunts were causing him. On the day after President Clinton's inauguration, apparently relying on the President's public statements about homosexuals in the military, plaintiff and the Chaplain met privately with plaintiff's commanding officer, apparently to ask him to admonish the crew about taunting plaintiff. Instead, when the plaintiff admitted that "he was homosexual" (A.R. at ...


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