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ELZIE v. ASPIN

August 14, 1995

JUSTIN C. ELZIE, Plaintiff,
v.
LES ASPIN, et al., Defendants.



The opinion of the court was delivered by: STANLEY SPORKIN

 This matter comes before the Court on cross-motions for summary judgment. Plaintiff, a sergeant in the United States Marine Corps, filed an action for declaratory and injunctive relief against officers of the United States government for unlawfully discharging him from active duty in the Marine Corps and for unlawfully barring him from a retirement benefits program on the basis of his public acknowledgment that he was a homosexual. The military does not dispute that it took such actions, pursuant to its then-existing policy, based solely on Plaintiff's public acknowledgment of his homosexual status.

 Plaintiff contends that the military's actions under its then-existing policy violated his rights to due process under the Fifth Amendment, his rights to equal protection under the Fifth Amendment, his rights of free speech under the First Amendment, and his right to privacy under the First, Fifth and Ninth Amendments. Plaintiff also claims that the military's actions were a violation of the Administrative Procedures Act. In addition to claiming that he was denied equal protection of the laws on the basis of his homosexual status, he also claims that the military's actions constitute gender discrimination.

 By Order dated November 10, 1993, this Court issued a preliminary injunction, enjoining the military during the pendency of this litigation from taking any adverse action against the Plaintiff, separating him from active duty, placing him on standby reserve, discharging him from the Marine Corps, and denying him participation in the retirement benefits program.

 BACKGROUND

 Sergeant Elzie has been described by the same military which seeks to discharge him as "outstanding," "loyal and reliable, and as "an effective asset to have" and as a person whom the "Marine Corps should strive to retain." *fn1" When he received a citation for outstanding service in 1985, Lieutenant Colonel Chevalier stated:

 
Your competence and initiative in seeking and accepting additional responsibilities far exceeded that of your contemporaries. You have consistently set the example as a Marine NCO [noncommissioned officer] by your unselfish attitude, dedication, and performance as a leader of Marines. Your performance is in keeping with the highest tradition of the United States Marine Corps.

 In 1989, he was selected "Marine of the Year" for the Third Medical Battalion and the Third Force Service Support Group. During the 1990 Helsinki Summit between President Bush and President Gorbachev, he was entrusted with the security of senior government officials, including then-Secretary of State James Baker, then-National Security Advisor Brent Scrowcroft, and then-White House Chief of Staff John Sununu. In 1991, Colonel Harkins observed that Sgt. Elzie has "unlimited growth potential and is highly qualified for promotion."

 Given his exemplary service, Sgt. Elzie was eligible for the Voluntary Separation Incentive and Special Separation Benefit ("VSI/SSB") program, a retirement program which was offered by Congress in an effort to reduce the armed forces. 10 U.S.C. ยงยง 1174a, 1175. In December of 1992, he applied for this program in order to pursue a college education. Had all gone according to plan, he would have received the retirement benefits and been separated from active duty by the end of April, 1993.

 Not all went as planned. On January 29, 1993, Sgt. Elzie, after the President announced that he disagreed with the military's ban on homosexuals, stated publicly that he was a homosexual. Sgt. Elzie's "unlimited growth potential" and "positive future [in the military]" *fn2" were cut short by this public acknowledgment. On March 21, 1993, the Marine Corps convened an Administrative Discharge Board and recommended Sgt. Elzie's discharge based solely on his admission of homosexual status. PI Exhibit A at P00096, P00099, P00100. *fn3" On September 1, 1993, Sgt. Elzie was officially discharged. This suit followed, challenging the legality and constitutionality of the military's then-existing policy on homosexuals enumerated in Department of Defense Directive 1332.14 (January 28, 1992), published at 32 C.F.R. part 41, app. A (1992) (superseded).

 Based on the Meinhold injunction, which permanently enjoined the military from discharging service members on the basis of statements that they were homosexual, the military voluntarily reinstated Sgt. Elzie on October 19, 1993. Meinhold v. United States Department of Defense, 808 F. Supp. 1455 (C.D. Cal. 1993), aff'd in part and rev'd in part, 34 F.3d 1469 (9th Cir. 1994). When the Supreme Court stayed the injunction as to plaintiffs not named in the Meinhold case, the military promptly reinstated its discharge decision. United States Department of Defense v. Meinhold, 126 L. Ed. 2d 324, 114 S. Ct. 374 (1993). On November 10, 1993, this Court issued its preliminary injunction enjoining the discharge.

 This case now comes before the Court on cross-motions for summary judgment. Despite his exemplary record, the military remains committed to denying Sgt. Elzie benefits under the VSI/SSB program and continues to seek Sgt. Elzie's discharge. The irony of the current posture of this litigation is not lost on this Court. Plaintiff was ready and willing to leave the military voluntarily by April 1993 as long as he was permitted to participate in the VSI/SSB program. He had already been accepted into the program and had met the eligibility criteria. *fn4" The military has prolonged Sgt. Elzie's stay in the Marine Corps due to its need to enforce its discharge policy. It would appear that the military is not simply seeking to discharge Sgt. Elzie due to the purported threat to ...


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