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 Advisors Office would not be affected by the plaintiff's presence, I cannot say with any assurance that any new personnel will have the same attitude to the plaintiff's affliction.
It should be noted also, that the national interest might dictate that the plaintiff's present assignment be changed from the relative quiet of the Army Advisors Office to one where sound emotional health is a necessity. Indeed, because of the charges brought against him, an order assigning the plaintiff to duty overseas had to be cancelled. I think that it would be clearly inappropriate to hobble the Army by forcing it to retain even one soldier, for an indefinite period of time, when there are serious questions concerning his emotional health.
I am reluctant to bring about such a result by judicial edict, recognizing as I do, that matters of this type are particularly appropriate for the Army's discretion rather than for judicial intervention.
HARM TO THE PUBLIC INTEREST
The questions of harm to the Army and harm to the public interest are closely inter-related and the standards which govern a determination of one to a great degree govern the other. This is not to say that the scope of both these questions are coterminous, for in many cases the interest of the public and the parties immediately affected may diverge. In the instant case the defendant is the Government itself and as such its interest and that of the public by necessity converge.
Having found that the retention of the plaintiff in the service, pending the disposition of his appeal, would involve a significant probability of harm to the Army, it follows that the public interest would also be harmed. I thus find against the plaintiff on this issue as well.
THE LIKELIHOOD OF SUCCESS ON APPEAL
In addition to meeting his burden of proof on other elements, the plaintiff must also demonstrate that he is likely to prevail on the merits on his present appeals through the military system.
At the preliminary injunction stage in this type of case, the function of a district court is particularly difficult since it must examine the substantive issues carefully enough to make an informed judgment on the probabilities of success on appeal and yet refrain from making a definitive judgment on the merits.
Thus, there are cases which the plaintiff might win on an administrative appeal within the military system or cases in which he may be successful in an appeal to this Court from a final adverse administrative adjudication. Yet, despite that possibility of success, he would not now be entitled to a preliminary injunction. Such a hypothetical situation is not a remote analogy for this case. Though I conclude, infra, that the plaintiff fails to meet the high burden of the likelihood of success on appeal, my comments are not intended to suggest that he should not win on an appeal within the administrative levels of the military system, rather, I am merely making an illusive judgment on substantial probabilities.
The plaintiff has advanced numerous arguments as to why he should prevail in his appeals to the Army Discharge Review Board and the Board for the Correction of Military Records; some of these arguments are clearly without merit, while others raise questions which are by no means free from doubt.
Basically, the plaintiff's contentions can be divided into two groups (a) violations of Army regulations by the convening authority in the establishment of, and proceedings of the Board of Officers in issue; and (b) violations of the plaintiff's constitutional rights during the investigative process and the Board of Officers proceeding. For the sake of convenience, I will first deal with the question of irregularities in the Administrative proceedings.
As to the errors in violations of Army regulations in the administrative proceedings the plaintiff urges that (1) the decision convening the Board of Officers was not one made personally by his commanding general, (2) the Board of Officers did not make specific findings of fact as required by the governing regulations, (3) written notice of the Board proceedings was not given to him until the day before the hearing, (4) the Board was not composed of "unbiased" officers as required by the regulations, (5) one of the Board members was not an "experienced" officer of mature judgment as required by the regulations, and (6) reference was made to a prior investigation carried out prior to his honorable discharge at the end of a prior enlistment.
I have viewed with care each of the above six allegations charging administrative irregularities, and while the proceedings may not have been totally errorless, I cannot find that any of these procedural errors had singularly such fundamental substance that there is a certainty of plaintiff's success on appeal.
The charges of constitutional deprivation, during the investigative process and the Board of Officers' proceedings, however, raise matters of greater substance. On the constitutional issue, the plaintiff asserts that (a) the search which led to the discovery of the incriminating letters was an illegal one, (b) this illegally obtained evidence was presented to the Board of Officers, (c) the incriminating statements made by him comes as a direct consequence of the illegally seized letters and thus were the "fruits of a poisonous tree", (d) he was not warned of his rights under Article 31 of the Uniform Code of Military Justice or offered counsel during his interrogation, and (e) was not allowed to confront his accusers.
In determining the constitutional issues, the chronology of events is of significance. There are substantial inferences that the search of the locked government desk used by Sergeant Crawford, was not based on probable cause.
The authorities are apparently unanimous that under the circumstances of this type "* * * it can be said with assurance that the exercise of authority to search must be founded upon probable cause" United States v. Gebhardt, 10 U.S.C.M.A. 6-6 (1959), and probable cause in this case, if any, must rest on the anonymous letter.
The anonymous letter rises no higher than a tip, and the military courts have held that the tip must be "reliable", and "the reliability of the informant is the controlling factor." United States v. Davenport, 14 U.S.C.M.A. 152 (1963). Cf. Costello v. United States, 298 F.2d 99 (9th Cir. 1962); Cochran v. United States, 291 F.2d 633 (8th Cir. 1961); Rodgers v. United States, 267 F.2d 79 (9th Cir. 1959).
In Davenport, supra, the Court quoted with approval the following passage from Costello v. United States, supra, 298 F.2d at page 101:
All the cases in which a 'tip' has been heavily relied upon to establish probable cause have stressed the need for 'a substantial basis for crediting the hearsay,' Jones v. United States, 362 U.S. 257, 269, 80 S. Ct. 725, 735, 4 L. Ed. 2d 697 (1960), or a record of 'accurate and reliable information,' Draper v. United States, 358 U.S. 307, 313, 79 S. Ct. 329, [3 L. Ed. 2d 327] (1958); in short, 'a previously reliable informant,' Espinoza v. United States, 278 F.2d 802 (5th Cir. 1960). Prudent and cautious men would not act in so decisive a fashion in reliance on an uncorroborated anonymous caller, and there is nothing in this record to show that the present informant was anything more than that.