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November 10, 1993

JUSTIN C. ELZIE, Plaintiff,
LES ASPIN, et al., Defendant.


The opinion of the court was delivered by: STANLEY SPORKIN

This matter is before the Court on plaintiff's Application for Preliminary Injunction. Plaintiff, Justin Elzie, a sergeant in the United States Marine Corps ("Marine Corps"), brings this action against defendants Les Aspin, Secretary of Defense, John Dalton, Secretary of the Navy, and Carl Mundy, Jr., Commandant of the Marine Corps, seeking declaratory and injunctive relief charging that the Marine Corps improperly and unlawfully recommended him for discharge from active duty and barred him from a retirement benefits program. Plaintiff alleges that the Marine Corps took such action against him based solely on his public announcement that he is a homosexual. Defendants do not dispute that their action was based solely on plaintiff's public declaration of his sexual orientation. They assert, however, that the Marine Corps was authorized to take such action by long-standing military policy that permits service members to be separated from the armed forces on the sole ground of "homosexual admissions."

 In his Application for Preliminary Injunction, plaintiff asks this Court to 1) restore him to active duty in the Marine Corps; 2) enjoin defendants from discharging him from the Marine Corps during the pendency of this action on the basis of his status as a homosexual; 3) restore him to full participation in the Voluntary Separation Incentive and Special Separation Benefit ("VSI/SSB") program. It is plaintiff's position that if he succeeds on the merits, absent an injunction he will suffer irreparable injury because he will have been discharged from the Marine Corps.


 Plaintiff is an eleven year veteran of the Marine Corps. During his rise through the ranks from private to sergeant, he distinguished himself at every step. His service record is replete with commendations and awards and decorations. In 1982 he received a meritorious promotion to Private First Class. In 1984 he received another meritorious promotion to Corporal. In 1985 he received a citation for "outstanding service" from his commanding officer. In 1989 plaintiff was nominated for and selected "Marine of the Year" for his battalion and for his group. He successfully completed the training program at the selective Marine Corps embassy school in Quantico, Virginia and was subsequently charged with the security of some of the nation's senior government officials. He consistently received outstanding fitness reports.

 In 1991, Congress established the Voluntary Separation Incentive and Special Separation Benefit ("VSI/SSB") program designed to reduce the size of the armed forces in keeping with a perceived diminished threat to United States' interests posed by the "new world order." The VSI/SSB program provides, to those members of the armed forces who qualify, incentive payments and medical and veterans benefits as inducements to elect early retirement. 10 U.S.C. §§ 1174(a), 1175. Among the criteria disqualifying Marines' participation in the program for fiscal year 1993 is "pending administrative action which could culminate in discharge proceedings." All Marines Bulletin 349/92, Para. 5.H(2).

 In 1992, plaintiff applied for acceptance into the VSI/SSB program planning to retire from the Marine Corps to pursue other career goals. At the time he applied, his service record made him eligible for the program and he was accepted into the program. On January 28, 1993, a United States district court in California enjoined the Department of Defense from "discharging or denying enlistment to any person based on sexual orientation in the absence of sexual conduct which interferes with the military mission of the armed forces." Meinhold v. United States Dept. of Defense, 808 F. Supp. 1455, 1458 (1993). *fn1"

 The day after that injunction issued, the President of the United States announced in a press conference that he opposed the military's policy on homosexual service and announced his determination to lift the ban and thereby end the policy of excluding or discharging service members "solely on the basis of sexual orientation." The President's News Conference, 29 Weekly Comp. Pres. Doc. 108, 109 (Jan. 29, 1993). The President stated that the Department of Defense would conduct a review of the then-existing policy and draft an Executive Order reflecting the product of that review by July 15, 1993. The President also announced that while the Department of Defense reviewed the policy on homosexuals, an interim policy would obtain.

 Under the interim policy, the military was barred from questioning prospective service members about their sexual orientation on induction applications. In addition, the interim policy allowed the military to process service members for separation pursuant to the existing policy, however, where the service member was subject to discharge solely because of his/her status as a homosexual the Attorney General was authorized to suspend final discharge and transfer the member to standby reserve pending completion of the policy review.

 On the evening of January 29, 1993, the ABC television program World News Tonight aired an interview in which plaintiff declared that he is a homosexual. Plaintiff asserts he publicly revealed his sexual orientation in reliance on the President's announcement and the Meinhold decision. He subsequently made several public statements affirming his sexual orientation.

 On February 5, 1993, plaintiff was informed that he had been accepted into the VSI/SSB program. On February 10, 1993, plaintiff was told that because of his statements regarding his sexual orientation the Marine Corps planned to remove him from the VSI/SSB program. The Marine Corps gave plaintiff the option to agreeing to a voluntary separation, in which case he would be temporarily reaccepted into the VSI/SSB program with his benefits held in abeyance pending the final Executive Order with respect to the military ban. If the new policy allowed plaintiff to continue service in the Marine Corps, he would be given full VSI/SSB benefits. If he was not eligible for continued service under the new policy he would be denied VSI/SSB benefits. The Marine Corps advised plaintiff that if he refused a voluntary separation he would be involuntarily separated pursuant to Marine Corps regulations that authorize discharge on the grounds of homosexual "admissions." Plaintiff declined a voluntary separation with less than full VSI/SSB benefits and the Marine Corps began administrative discharge proceedings. *fn2"

 On March 31, 1993, an Administrative Discharge Board recommended that plaintiff be discharged pursuant to MarCorSepMan P 6207.3b(2) which provides for discharge when a Marine "admits to being a homosexual or bisexual, unless there is a further finding that the member is not homosexual or bisexual." The discharge proceeding was based solely on plaintiff's statements regarding his sexual orientation. The Marine Corps argued that the exclusionary regulations were not limited to conduct, thus admissions of homosexual status would be sufficient grounds for discharge. Plaintiff's assertion that the regulations required a finding that he had a propensity to engage in homosexual conduct was rejected. The Administrative Discharge Board recommended discharge on the sole basis of plaintiff's "public admissions and numerous media statements."

 On July 19, 1993, the President announced that the military's policy concerning homosexual service was being revised. The new policy, which took effect on October 1, 1993, removes homosexual orientation, standing alone, as a sufficient basis for discharge. In addition to an admission of homosexual orientation, there must be a finding that the service member has a propensity to engage in homosexual conduct. A service member's homosexual admission creates a rebuttable presumption of such propensity, which casts the burden on the service member to rebut the presumption. Separation is warranted under the new policy only when the service member fails to present evidence rebutting the presumption of propensity.

 Plaintiff was officially removed from active duty on September 1, 1993. Defendants adopted the Administrative Discharge Board's recommendation of discharge and placed plaintiff on unpaid standby reserve. Accordingly, plaintiff's pay was ...

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