cases involved due process and equal protection challenges to military policies that treated men and women differently. The basis for both policies was the combat exclusion policy. In upholding the military policies in both instances, the Court stated that because of the combat exclusion policy, men and women were not similarly situated and thus could be treated differently without violating due process or equal protection. Rostker, 453 U.S. at 78; Schlesinger, 419 U.S. at 508.
In the case before me, the Army has adopted an enlistment policy that uses different criteria for men and women. An important, if not primary, goal of the Army's enlistment program is the recruitment of adequate numbers of the highest quality soldiers into the Army. Through its pleadings and affidavits attached to its motion for summary judgment, the government stated the Army's preference for HSDGs because they have lower attrition rates and higher retention rates than non-HSDGs. In her affidavit, General Williamson indicated that attrition and retention rates are of concern to the Army "because the cost of selecting, classifying, training and equipping new recruits is especially high." Defendants' Memorandum, App. A at 4. In addition to financial concerns, attrition and retention rates obviously affect military readiness.
Because women are excluded from combat positions, more men than women are needed in the Army. To obtain a sufficient number of men, the Army permits a limited number of non-HSDGs to enlist; this is done only so the Army can obtain the requisite number of male enlistees. Enough female HSDGs can be recruited to fulfill the Army's needs, however, so women enlistees are required to be HSDGs.
As in Rostker and Schlesinger, I find that men and women are not similarly situated for purposes of military service as a result of the combat exclusion policy. As a result of the combat exclusion policy, the Army requires approximately one-tenth the number of women as it does men. Clearly, the wide disparity in these personnel requirements alone, without considering any specific criteria, greatly affects any individual woman's chance of being accepted for enlistment. Because the Army needs so many fewer women than men, it has chosen to set higher enlistment standards for women. Given these differing personnel requirements, I do not believe it unreasonable for the Army to set higher enlistment standards for women.
In deciding the matter before me, I am mindful of the Third Circuit's advisory regarding the general "lack of competence on the part of the courts in regulating military affairs," and that when reviewing military affairs, judicial intervention "should only be undertaken with care and circumspection." Jaffee v. United States, 663 F.2d 1226, 1237-38 (3d Cir. 1981). Based on the evidence submitted by the government with its motion for summary judgment and mindful of the deference accorded the military by the courts, I cannot conclude that the Army's policy barring women but not men who possess only a GED certificate is not reasonably relevant and necessary to the national defense.
As a result, I find no due process or equal protection violation in the challenged enlistment policy, either on its face or in its application to Ms. Lewis.
An appropriate order follows.
AND NOW, this 27th day of September, 1988, upon consideration of the motion of the Secretary of Defense of the United States and the United States of America and Plaintiff's response thereto, it is hereby Ordered that Summary Judgment is GRANTED in favor of all remaining defendants and against Plaintiff, and the Complaint is DISMISSED.
AND IT IS SO ORDERED.