Staley, Chief Judge, and McLaughlin and Forman, Circuit Judges.
The appellant, Kenneth Wayne Nelson, sought a declaratory judgment and injunctive relief in the United States District Court for the Eastern District of Pennsylvania pursuant to 28 U.S.C. §§ 2201, 2202 and 5 U.S.C. § 1009, to restrain the appellees, officers and an official of the United States Navy, from discharging him from the service. This appeal is taken from the order of the District Court denying the appellant's motion for a preliminary injunction while retaining jurisdiction for final hearing. Following a hearing the District Court delivered its opinion orally, making findings of fact based on evidence which may be summarized as follows:
The appellant is an Electronics Engineer First Class in the United States Navy with approximately ten years of service. On October 22, 1965, he was interviewed in London by Agent Siler of Naval Intelligence, who told him that he was conducting an investigation of homosexual activities and later stated that the appellant was suspected of associating with a homosexual known as "Phil." The appellant denied this, but in response to a question by Agent Siler, told of an incident which occurred in San Francisco in 1963. He then signed an unsworn typewritten statement prepared by Agent Siler in which a version of the incident was set forth. The District Court found that Agent Siler misled the appellant as to the purpose of the interrogation and the use to which it would be put and at no time advised him of any right of counsel.
The appellant was transferred to the Fourth Naval District at Philadelphia, Pennsylvania for court-martial,*fn1 but the District Commandant refused, for the best interest of the Naval Service, to convene a court-martial despite the appellant's request for trial by the same. Instead, on the recommendation of the Naval Station, approved by the Bureau of Naval Personnel, the case was heard administratively by a Field Board of Officers. At the hearing, the appellant's counsel objected inter alia to the introduction of both Agent Siler's report and the statement signed by the appellant on numerous grounds, among which were that the statement was unsworn, elicited without proper warning, misleadingly incomplete in violation of Navy regulations,*fn2 and that the report was hearsay. These objections were overruled. In conjunction with the hearsay objection, counsel further demanded the right to cross-examine Agent Siler, but he was not produced and no such opportunity was afforded.
Thereafter, the appellant took the stand and testified under oath that on the day in question he had gone to the Naval Hospital in San Francisco to escort the body of a friend, who had been killed in an automobile accident two days before, to his family. Upon arrival, however, he was taken to the morgue to identify the body, at which time an autopsy was being performed and the body was in a gruesome state of dismemberment and evisceration. Furthermore, by some misunderstanding, the appellant's name had been placed on the death certificate instead of that of the deceased.
Feeling dazed and faint, the appellant left the morgue and went directly to a certain bar in San Francisco, where he drank heavily from midafternoon until midnight, when he left while extremely intoxicated with a regular patron known to the appellant as "Chuck." This man had offered to get the appellant a hotel room, which the appellant, not desirous of wandering into the street and encountering the shore patrol, accepted. After losing consciousness or falling asleep in the hotel room the appellant awoke sometime later to find that "Chuck" was performing a homosexual act upon him. He testified that although he became aware of what was happening and willed to resist, he lacked the physical capacity to do so, due to his state of intoxication. He further testified that he had no prior suspicion that the assailant was a homosexual, nor did he believe the bar to be a hangout for homosexuals. There was no other evidence of homosexual involvement, and, in fact, a naval psychiatrist's report stated that there were no indications of homosexual orientation in the appellant's psychodynamic formulation.
The Field Board was supplied with a mimeographed form subtitled "Findings of the Board," on which were printed the following options relevant to the appellant's charge:
"() Sexual pervert. () Committed homosexual acts. () Homosexual tendencies."
The Board marked the space designating "Committed homosexual acts,"*fn3 but recorded its recommendation that the appellant be retained on active duty. Later, the Senior Member of the Field Board wrote an endorsement dated April 28, 1966 to a letter sent by the appellant to the Chief of Naval Personnel, which stated in part:
"2. The Members of the Board were unanimously of the opinion that NELSON was the victim of a homosexual attack, and that he was not a voluntary participant in it.
"3. The Board made its Report in the form in which it was submitted because that block checked was the closest description related to the allegations. * * *
"4. The Report was in error, insofar as it may be considered that the Field Board in any way concluded that NELSON was a voluntary participant in a homosexual act. No member of the Board would have recommended retention had ...