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DAVIS v. DALTON

June 6, 1996

ROBERT E. DAVIS, Plaintiff,
v.
JOHN H. DALTON, SECRETARY OF THE UNITED STATES NAVY, and THE UNITED STATES NAVY, and BUREAU FOR THE CORRECTION OF NAVAL RECORDS and THE OFFICE OF PERSONNEL MANAGEMENT, Defendants.



The opinion of the court was delivered by: SPORKIN

 BACKGROUND

 Involuntarily retired Commander Robert E. Davis, the plaintiff in this action, began his service to his country more than 35 years ago when he enlisted in the United States Navy at the age of 18. Through hard work and a series of early promotions, Commander Davis rose through the ranks. While serving in the Navy, plaintiff, an African-American, attended night school and earned a Bachelor's degree from San Diego State University, *fn1" and three separate Master's Degrees. In 1971, some eleven years after his enlistment, plaintiff was promoted to the rank of Warrant Officer, a non-commissioned officer position. Three years later, skipping the position of ensign, plaintiff entered the officer ranks as a lieutenant junior grade. Commander Davis was then selected for early promotion to Lieutenant Commander and subsequently to Commander. Plaintiff received numerous achievement awards and service medals. By all accounts, Commander Davis had an exemplary record of public service and personal accomplishment until 1991 when he came under the command of a certain Captain. *fn2"

 While plaintiff was serving as the Commanding Officer ("CO") of the Navy's communication facility in Yokosuka, Japan, his supervisor told him that his performance was being reevaluated in light of certain allegations against him. The allegations -- which included security violations, sexual harassment, reverse discrimination, and voyeurism *fn3" -- had surfaced during a routine background investigation to determine plaintiff's suitability for a top secret clearance and access to sensitive compartmented information ("SCI") and as a result of an anonymous hotline tip.

 Although Commander Davis was ultimately cleared of these charges in a special court martial, the allegations set off an almost "kafkaesque" series of events which included: (1) involuntary confinement in a mental hospital for three weeks; (2) revocation of plaintiff's security clearances; (3) removal of plaintiff from his position of command; (4) initiation of "detachment for cause" proceedings against plaintiff; and (4) institution of a Medical Board against plaintiff. Ultimately, plaintiff was denied promotion to Captain and was involuntarily retired from the Navy he had served so well.

 After completion of several investigations into the allegations against Commander Davis, plaintiff's supervisor informed the Chief of Naval Personnel on January 23, 1992, that she had lost confidence in Commander Davis's ability to command. Shortly thereafter, the Naval Intelligence Command recommended that plaintiff be declared ineligible for access to SCI. In late February, plaintiff was ordered to leave his post in Japan and to report to the Psychiatry Clinic at the Bethesda National Naval Medical Center ("Medical Center") for a full psychological evaluation, to be conducted by a specified physician. Prior to the evaluation, the examining physician received derogatory information about plaintiff from his supervisor's JAG Officer.

 After a preliminary evaluation and diagnosis, the psychiatrist ordered that plaintiff be admitted to the hospital for an estimated 21 days of psychiatric treatment and care. *fn4" If Commander Davis had left the hospital without being discharged, he could have been charged with being Absent Without Leave. During his three-week involuntary confinement, medical personnel attempted to medicate plaintiff and to perform a lumbar puncture, but plaintiff was able to thwart these attempts.

 While plaintiff was confined at the Medical Center, his supervisor utilized a Navy regulation which allows a CO to be temporarily replaced if that CO is away from his duty station for four weeks, regardless of the cause of the absence. His supervisor also initiated a procedure against plaintiff known as "detachment for cause" ("DFC"). A DFC allows a superior officer to request removal of a junior officer from command permanently if the superior officer has lost confidence in the junior officer's ability to command. *fn5"

 On March 20, 1992, a Medical Board diagnosed plaintiff as having among other things "Bipolar disorder, Manic Episode, with mood-incongruent psychotic features..." and concluded that plaintiff was not competent to return to full duty. The Board also recommended that plaintiff's case be referred to the Central Physical Evaluation Board for disability proceedings. However, these proceedings were held in abeyance pending the outcome of the disciplinary actions begun against Commander Davis.

 Two neurological and psychiatric examinations by civilian physicians from the National Institutes of Health directly contradicted the Medical Board's diagnosis. The private psychiatrist found that plaintiff did "not suffer from any significant mental disorder that would render him unfit for duty. The private neurologist indicated that plaintiff had "an entirely normal neurologic exam." Based on these findings, Commander Davis challenged the Medical Board's conclusions, but the Medical Board upheld its original diagnosis.

 On April 9, 1992, plaintiff's supervisor's deputy recommended that plaintiff be nonjudicially punished pursuant to Article 15 of the Uniform Code of Military Justice, 10 U.S.C. ┬ž 815. Plaintiff refused the nonjudicial punishment, as was his right to do, and elected instead to face a court martial. *fn6" Thereafter, plaintiff's supervisor requested an inquiry into whether plaintiff lacked the mental responsibility for the offenses charged or, in general, lacked the mental capacity to stand trial. A Board conducted by two psychiatrists found that plaintiff had the mental capacity to be charged with the offenses and to stand trial.

 Also in April 1992, plaintiff was notified that he was no longer eligible for access to SCI and that his security clearances would be revoked. Plaintiff appealed both decisions. On June 9, 1992, the Director of the Navy's Central Adjudication Facility decided against revoking plaintiff's security clearance and granted plaintiff a Top Secret clearance. Despite two appeals and a legal review of the procedural protections afforded plaintiff, the denial of plaintiff's access to SCI was affirmed. This decision was based at least in part on the original allegations.

 On May 8, 1992, the Chief of Naval Operations ("CNO") upheld the DFC initiated against Commander Davis. During all of these actions taken against plaintiff, Commander Davis had been forced to leave his family in Japan. He was not able to see them for more than six months.

 On September 17, 1992, after a two-day jury trial, Commander Davis was acquitted by a special court-martial of all thirteen charges and specifications made against him. On October 13, 1992, the Chief of Naval Personnel disapproved the DFC request initiated by his commanding officer. So by the middle of October 1992, Commander Davis had been cleared of all charges against him.

 Despite Navy regulations requiring that Commander Davis be returned to command as soon as practicable and that his career be normalized, plaintiff was not returned to command but was instead ordered to a new assignment. In addition, plaintiff's former supervising officer in Japan filed an adverse fitness report against Commander Davis in October 1992. This was the first adverse fitness report Commander Davis had received in his entire career. ...


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