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February 13, 1981

Edward HIDALGO, Secretary of the Navy

The opinion of the court was delivered by: WEINER


Plaintiff, a Midshipman First Class at the U. S. Naval Academy, filed this Petition for a restraining order to prevent his discharge from the Academy. A Temporary Restraining Order was signed on January 14, 1981 by Judge Becker of this Court, which Order was later extended to February 5, 1981. A hearing for a preliminary injunction was held before this Court on February 4, 1981, all proceedings being stayed pending this Court's decision.

 Plaintiff entered the U. S. Naval Academy in June, 1977. The activities giving rise to the discharge of the plaintiff from the Academy took place during the early morning hours of Saturday, November 22, 1980. The plaintiff was charged with engaging in sexual activities with a female Midshipman in his room, encouraging other Midshipmen to participate, and having a Midshipman use a movie camera to photograph plaintiff's sexual activities with the female Midshipman. Plaintiff consulted with his military counsel Lieutenant Commander John B. Holt, JAGC, USN, who advised plaintiff to plead guilty and to waive his Administrative Conduct Hearing, which plaintiff did on December 4, 1980. On December 5, 1980, Rear Admiral W. F. McCauley, Commandant of Midshipmen, conducted a hearing, following which he recommended that plaintiff be discharged from the Academy. LCDR Holt testified that he was not permitted in the hearing room, so he sat outside the room, and the hearing lasted approximately two minutes. On December 6, 1980, plaintiff received a hearing, again without benefit of counsel, before Vice Admiral William P. Lawrence, Superintendent of the Academy. On December 24, 1980, the Superintendent transmitted his report to the Secretary of Navy recommending that the plaintiff be discharged from the Academy and further recommending that plaintiff be transferred to the Naval Reserve in an enlisted status and called to active duty for a period of three years. On January 14, 1981, the Secretary issued an Order discharging plaintiff from the Academy. Another Midshipman, Love, involved in this incident was also discharged and ordered to report as an enlisted man for a period of three years. Midshipman Lamble tendered a qualified resignation which was accepted and she was not required to report for active duty with the Navy. The other three Midshipmen involved were permitted to remain at the Academy, and have been otherwise disciplined.

 The plaintiff has raised two issues concerning his discharge from the Academy. He complains that he was denied the due process in that his counsel was not permitted to represent him in the hearing room, he was not given the opportunity to be heard before an impartial tribunal, he was deprived of his right against self-incrimination, and he was deprived of the right to compel the appearance of witnesses in his favor and the right to confront witnesses against him. He further complains that the statutory guidelines set forth in 10 U.S.C. ยง 6962 were not complied with.

 "It is established, of course, that the federal courts have the power and the duty to inquire whether a military discharge was properly issued under the Constitution, statutes and regulations." Matlovich v. Secretary of the Air Force, 192 U.S. App. D.C. 243, 591 F.2d 852, 859 (D.C.Cir.1978). The decision of the Secretary in the case sub judice is subject to the limited scope of judicial review intended to assure that the Secretary did not act in an arbitrary or capricious or otherwise unlawful manner. Love v. Hidalgo, 508 F. Supp. 177 (D.C.Md.1981) citing Dunlop v. Bachowski, 421 U.S. 560, 566-68, 95 S. Ct. 1851, 1857-1858, 44 L. Ed. 2d 377 (1975).

 The Court has carefully reviewed the briefs filed by both parties, the testimony given at the hearing before this Court on February 4, 1981, the reports of the Superintendent and the Secretary, and the statements of the Midshipmen. For the reasons which follow, the plaintiff's motion for a preliminary injunction insofar as it relates to his discharge from the U. S. Naval Academy is denied. We shall, however, grant plaintiff's motion for a preliminary injunction restraining the enforcement of the order of the Superintendent of the Naval Academy and the order of the Secretary of the Navy, or any other order, transferring the plaintiff to the Naval Reserve and ordering him to active duty in an enlisted status for a period of three years.

 We do not intend to substitute our judgment for that of the Superintendent and Secretary. There is no question that the "sexathon" was organized and orchestrated by the plaintiff in which he was aided in and abetted by Midshipman Lamble. The actors were solicited, the setting provided, the "show" was filmed, and everything possible was done to perpetuate this activity and the hope may have been to obtain a large audience. His discharge from the Academy may very well be warranted. However, just as the Academy has promulgated rules and regulations for the conduct of the Midshipmen, with penalties for disobeying those regulations, so has Congress passed laws regulating the procedures to be followed in discharging a Midshipman from the Academy. If the Superintendent expects Midshipmen to follow the rules and regulations, then he and the Secretary should follow the procedures set forth in the Act when discharging a Midshipman. Rank may have privileges, but there is no privilege to ignore the mandates of a statute.

 The Court is very concerned about the procedures followed by the Naval Academy in this case. The discharge of a Midshipman is governed by Section 6962 of Title 10 of the United States Code which provides:

"(a) The Superintendent of the Naval Academy shall submit to the Secretary of the Navy in writing a full report of the facts-
(1) whenever the Superintendent determines that the conduct of a midshipman is unsatisfactory; or
(2) whenever the Academic Board unanimously determines that a midshipman possesses insufficient aptitude to become a commissioned officer in the naval service.
(b) A midshipman upon whom a report is made under subsection (a) shall be given an opportunity to examine the report and submit a written statement thereon. If the Secretary believes, on the basis of the report and statement, that the determination of the Superintendent or of the Academic Board is reasonable and well founded, he may discharge the midshipman from the Naval Academy and from the naval service."

 The Superintendent prepared the report in writing and the plaintiff and his counsel, Holt, were given the opportunity to examine the report. The plaintiff then submitted a written statement, and the report and statement were forwarded to the Secretary of Navy. To this point the mandates of the Act were followed. What happened next is what concerns the Court. Instead of the Secretary making his decision at that time based on the report of the Superintendent and the statement of the plaintiff, the Secretary and the Superintendent met in Washington, D.C., at which time the Superintendent showed the Secretary the case files of the plaintiff Dougherty, of Love, and of Lamble, together with seven signed statements of other Midshipmen who had either participated in or observed the early morning "sex party." These statements were never shown to the plaintiff to afford him the opportunity to prepare a statement for the Secretary to review. One of the signed statements should never have been given to the Secretary to review since the statement was clearly hearsay. The statement begins "None of my information is first hand." However, since there have been no facts presented that the Secretary's action in issuing the discharge order was arbitrary or capricious, we shall not disturb his order at this time insofar as it relates to the discharge of the plaintiff from the Academy.

 In order for the plaintiff to be entitled to a preliminary injunction, he must show: (1) likelihood of success on the merits, (2) irreparable injury if the stay is not granted, (3) absence of substantial harm to other interested persons, and (4) absence of harm to the public interest. Hickey v. Commandant of the Fourth Naval District, et al., 464 F. Supp. 374 (E.D.Pa.1979) aff'd without opinion, 612 F.2d 572 (3d Cir. 1979). The plaintiff failed to meet his burden as it relates to his discharge. Plaintiff, of course, will suffer irreparable harm because of his discharge from the Academy. However, his remaining at the Academy will be very disruptive to the Administration and the Academy. Substantial harm to the Academy might result, since there could be a breakdown of ...

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