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January 12, 1966

Wilbur E. DAVIS, Individually and as the Senior Army Advisor, U.S. Army Adviser, Group (NG) Delaware, 10th and DuPont Streets, Wilmington, Delaware, William F. Train, Individually and as Commanding General of the Second United States Army, Fort George G. Meade, Maryland, and Stanley R. Resor, Individually and as Secretary of the United States Army, Headquarters, Department of the Army, Washington, D.C.

The opinion of the court was delivered by: HIGGINBOTHAM

 The instant matter is before this Court on a motion for a preliminary injunction. The plaintiff, Robert L. Crawford, a sergeant in the United States Army, seeks to prevent his discharge, by the Army, on grounds of homosexuality. *fn1" This Court has jurisdiction under 28 U.S.C.A. 2201 and 2202, and 5 U.S.C.A. 1009.

 The plaintiff is a sergeant first class assigned to the United States Army Advisory Group in Wilmington, Delaware. He has served with the Army for seventeen years and eleven months - all of which time he has been on active duty. His current enlistment began on March 30, 1962, and he will be eligible for retirement on January 31, 1968.

 On or about November 15, 1964, an anonymous letter was received by Headquarters, Department of the Army, Washington, D.C., which alleged that the plaintiff had homosexual inclinations and had participated in homosexual acts. An investigation was subsequently undertaken by the Army's Criminal Investigation Division in Philadelphia to determine the truth of the charges.

 On January 28, 1965, the plaintiff's commanding officer, Colonel Wilbur E. Davis, was visited by agents of the C.I.D. and informed of the charges made against the plaintiff. The agents sought to have the Colonel's authorization to search the desk used by the plaintiff, and such permission was granted. As a result of this search the investigators found three letters written to the plaintiff which contained language suggestive of homosexual activity on his part. The plaintiff was not present at the time of this search.

 On February 24, 1965, the plaintiff was confronted by one Victor D. McGuire, Jr., a military criminal investigator, as to the allegations of homosexuality made against him. He was told that he was under investigation and asked whether he wished to make a statement. Later during the same day the plaintiff went to the C.I.D. office in Philadelphia where, after being given a warning under Article 31 of the Uniform Military Code of Justice, *fn2" he made an incriminating statement. In this statement the plaintiff admitted that he had participated in homosexual activities and that he had a "problem". At the same time the plaintiff identified the author of the anonymous letter as one Melba Custis. Two days later, on February 26, 1965, the plaintiff made an additional statement, wherein he again admitted that he had participated in homosexual acts. On March 9, 1965, the plaintiff was referred to the Valley Forge Army Hospital at Phoenixville, Pennsylvania for psychiatric treatment and evaluation.

 As a consequence of the investigation, a Board of Officers proceeding was convened to determine whether the plaintiff should be separated from military service. The Board convened on September 23, 1965, at which time the plaintiff personally appeared with counsel. The plaintiff testified, and again admitted having committed homosexual acts. On October 4, 1965, the Board found the plaintiff to be a class II homosexual as defined in Army Regulations 635-89 and recommended that he be eliminated from the service and given a general discharge certificate under honorable conditions. The Board's recommendations were approved by the Commanding General of the Second Army on October 29, 1965 and steps were taken to discharge the plaintiff from the service.

 Shortly thereafter this action was brought to enjoin the Army from effecting the plaintiff's discharge, and a hearing was granted the plaintiff.

 The remedy of an injunction is an extraordinary one and should not be blithely granted. Thus, certain criteria have been established to guide the courts in the disposition of matters such as the one before us. These criteria were enumerated in Associated Securities Corp. v. Securities Exchange Commission, 283 F.2d 773 (10 Cir., 1960), Eastern Air Lines Inc., v. Civil Aeronautics Board, 261 F.2d 830 (2 Cir., 1958). They are:

 (1) Irreparable injury to the petitioner unless the stay is granted;

 (2) Absence of substantial harm to other interested parties;

 (3) Absence of harm to the public interest; and

 (4) A likelihood that the petitioner will prevail on the merits of his appeal.

 Since all of the above criteria are conditions precedent for the issuance of a preliminary injunction, I must deny the injunction requested herein by reason of plaintiff's failure to establish elements 2, 3 and 4. For the purposes of analysis I will discuss each of the criteria under a separate heading giving my reasons for the denial of the requested injunction.



 The plaintiff contends that should he be discharged at the present time, and before he has processed his appeals through military channels, he will suffer irreparable harm. This contention is vigorously denied by the Government which contends that the plaintiff has an adequate remedy at law. The Government contends, correctly, that the plaintiff is free to present his case, after discharge, to the Army Discharge Review Board and to the Army Board for Correction of Military Records. In addition a letter from the Secretary of the Army has been filed with this Court stating that should the plaintiff prevail in his appeals (through the normal military channels), he will be restored to his former rank with all its privileges, retroactive to the date of his discharge.

 The Government relies on a series of cases to support its contention, two of which are particularly relevant here. The cases are Beard v. Stahr, 370 U.S. 41, 82 S. Ct. 1105, 8 L. Ed. 2d 321 (1961) and Roberts v. Vance, 119 U.S.App.D.C. 367, 343 F.2d 236 (1964). In both of these cases judicial relief in the form of extraordinary remedies was stayed pending administrative action. There are, however, essential differences between the situation in those cases and that in the instant case.

 In Beard, the plaintiff was a commissioned officer who could not be removed from the active duty list of the Regular Army unless the Secretary of the Army approved. The Supreme Court noted that (370 U.S. pp. 41-42, 82 S. Ct. p. 1105):

 In the Roberts case, the plaintiff was a reserve officer who was then on active duty, and who remained on active duty at the pleasure of the Secretary of the Army under 10 U.S.C. § 681:

Except as otherwise provided in this title, the Secretary concerned may at any time release a Reserve under his jurisdiction from active duty.

 The Court of Appeals set aside the Secretary's action in removing Major Roberts from the active duty list because he had not followed his own regulations, promulgated in accordance with the statutory authority listed above. It should be noted that at the time suit was filed in Roberts, the challenged action had already taken place and thus the courts were merely reviewing a completed administrative action. This is not the case here.

 If the plaintiff in the instant case were complaining only that certain administrative procedures were not followed in this case I would be inclined to find that there was no showing of irreparable injury; however, in this case I must consider the nature of the offense for which the plaintiff is being discharged, and the form which that discharge will take.

 The plaintiff will be given a general discharge under honorable conditions. The Government points out - and I agree - that this type of discharge is not the same as a dishonorable, bad conduct or undesirable discharge. Nevertheless, it should be noted that the failure of the plaintiff to receive an honorable discharge is likely to have certain adverse effects on his employment opportunities and other aspects of his life. This issue was discussed in Unglesby v. Zimny, 250 F. Supp. 714, p. 716 (Northern District of California, Southern Division, November 15, 1965), and the court there observed that:

* * * the injury and stigma attached to an undesirable discharge constitutes irreparable damage, despite the fact that the appellee would be reinstated if he prevailed on the merits of his appeal. In our modern society where the vast majority of the nation's young men must pass through the military services, discharge with anything less than a record of honorable service constitutes a stigma of tremendous impact which will have a lifelong effect. This Court does not see any substantial distinction between an undesirable discharge and a General Discharge by reason of unfitness that would affect the resolution of the questions presented by this case.

 Similarly, although I am aware of the assurances given by the Secretary of the Army that the plaintiff would be reinstated with full rank and privileges should he prevail on appeal after discharge, it is my view that the risk of harm to the plaintiff during the interim would be substantial. The plaintiff would be placed in the position of having to seek work at which time he would undoubtedly be asked about his military status, and perhaps forced by circumstances to divulge the reasons for his discharge. Therefore, on the question of "irreparable harm," I find that the plaintiff has met his burden of proof.



 It is the position of the defendants that the Army would suffer irreparable harm if the plaintiff is allowed to remain in the service pending disposition of his appeal. Specifically, the defendants advance the following contentions: (a) that a confessed homosexual would create morale problems if young recruits are exposed to him, (b) that office routine would be disrupted by his continued presence, (c) that the plaintiff by his own admission has admitted that his homosexual tendencies are heightened by the use of "intoxicating drinks" and that there is no guarantee that he will not continue to use them, and (d) that the plaintiff would not be available for "full and complete military assignments."

 The plaintiff insists that as a practical matter, the Army would not be significantly harmed by my ordering his retention at this present duty station. In substance, he asserts that he has little, if any, contact with young and inexperienced recruits, and the record establishes generally that his superior officers found his actual performance on his present assignment satisfactory.

 If we were dealing with a governmental agency which had responsibilities no more crucial than clerical chores, then it could be persuasively argued that the plaintiff's retention in his present assignment, while his appeals were being processed, would not cause substantial harm to the Army. I must, however, take judicial notice of the inherently mobile nature of military life and the general requirement that a soldier on active duty must be eligible to accept any assignment required of him. I cannot say with certainty that the plaintiff will remain at his present duty station or that the personnel there will remain constant. Thus, although the present personnel of the Army ...

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