The opinion of the court was delivered by: BY THE COURT; BARTLE, III
Plaintiff, Edward Wilburn, is an Aviation Technician, Second Class in the United States Navy. On September 14, 1993, plaintiff petitioned this Court for a temporary restraining order to prevent the Navy from separating him with a general discharge under honorable conditions after 12 years of service before he could appeal the decision to the Board for Correction of Naval Records ("BCNR"). This Court granted the temporary restraining order and held a preliminary injunction hearing on September 24, 1993.
The following are the Court's Findings of Fact and Conclusions of Law, pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.
On June 1, 1990, while assigned to duty at the Naval Air Station in Sigonella, Italy, Navy security personnel apprehended plaintiff for driving under the influence of alcohol. Plaintiff waived his right to demand trial by court-martial for this offense. Instead he proceeded to a "captain's mast," an informal nonjudicial proceeding under Article XV of the Uniform Code of Military Justice, where limited punishments for certain offenses may be awarded after a hearing before the commanding officer. On June 20, 1990, plaintiff received a nonjudicial punishment of 45 days of restricted duty, forfeiture of half his monthly pay for two months, and a reduction in his rank for this offense.
Several years later, on April 13, 1993, plaintiff elected a captain's mast rather than a trial by court-martial for charges of six incidents of indecent exposure in the presence of six different women, two of whom were Petty Officers Marilyn Prete ("Prete") and Sheila Doane ("Doane"). Plaintiff was also charged with six specifications of disorderly conduct, each of which related to the alleged incidents of indecent exposure; two specifications of indecent assault on Prete and another woman; one specification of solicitation of prostitution of Prete and one specification of wrongfully communicating a threat to Prete. After interrogating Prete, Doane and plaintiff, the commanding officer at the captain's mast found plaintiff responsible for an indecent assault of Prete and disorderly conduct witnessed by Doane and Prete. Plaintiff received, as nonjudicial punishment, a verbal reprimand and 15 days of restricted duty for these offenses. The 13 remaining specifications were dismissed.
On April 22, 1993, before his punishment period of restricted duty expired, plaintiff received a notification letter from his commanding officer stating that he was being considered for an administrative discharge from the Navy by reason of misconduct due to "commission of a serious offense." This letter notified plaintiff that the decision to consider his discharge was based on his nonjudicial punishments for drunk driving in 1990 and the indecent assault of Prete in 1993.
Plaintiff elected to have another nonjudicial body, the Administrative Discharge Board (the "Board"), hear the specifications against him concerning his possible discharge. The Board, consisting of a lieutenant commander and two lieutenants, convened to hear plaintiff's case on July 7, 1993. Plaintiff was represented at the Board hearing by Navy counsel, who objected to the introduction of Prete's sworn written statement in support of the indecent assault charge. Plaintiff's counsel argued that since the determination of what happened depended on whether the Board believed plaintiff or Prete, her live testimony was critical. After ruling that plaintiff's counsel had failed to follow proper procedures for requesting the production of a witness, the senior member of the Board found Prete unavailable, as she had been transferred to the naval base in Norfolk, Virginia on June 1, 1993. The Board then proceeded with the hearing without her.
Plaintiff's counsel also objected to the introduction of documents detailing the alleged indecent exposure incidents, on the ground of undue prejudice. These documents consisted of numerous reports filed by Navy investigators and written statements by several women, some of whom had testified or submitted statements in the 1993 captain's mast. The Board overruled the objection and admitted these documents into evidence. Based on its consideration of "all witnesses and documentary evidence presented," the Board found by a vote of 3 to 0 that the plaintiff committed misconduct due to the commission of a serious offense. It recommended that plaintiff be separated from the Navy with a general discharge under honorable conditions. The "serious offense" presumably was the indecent assault of Prete, one of the offenses with which he was charged in the notification letter he received on April 22, 1993. The Bureau of Naval Personnel approved the Board's recommendation for separation and the characterization of plaintiff's discharge. Plaintiff has not yet exhausted his administrative remedies, as he has the right to appeal his discharge to the BCNR. The BCNR has the authority to "correct an error or remove an injustice," order that plaintiff be awarded lost pay, and order that he be reenlisted or reappointed to his prior grade. 10 U.S.C. § 1552(a)(1), (c), (d). The BCNR is authorized to consider claims of constitutional, statutory and regulatory violations. 32 C.F.R. § 723.3(e)(5). If the BCNR grants a hearing, the servicemember requesting relief may call witnesses. 32 C.F.R. § 723.4(d). All testimony presented at such a hearing "shall be given under oath or affirmation." 32 C.F.R. 723.5(4).
Plaintiff has not yet filed his appeal to the BCNR, but has announced his intent to do so promptly.
For this Court to grant a preliminary injunction, plaintiff must establish that he has both "a reasonable probability of eventual success in the litigation" and that he "will be irreparably injured pendente lite if relief is not granted." In re Arthur Treacher's Franchisee Litigation, 689 F.2d 1137, 1143 (3d Cir. 1982), quoting Oburn v. Shapp, 521 F.2d 142, 147 (3d Cir. 1975) (citations omitted). Since this case involves a government personnel issue, these standards must be read in light of the Supreme Court's decision in Sampson v. Murray, 415 U.S. 61, 94 S. Ct. 937, 39 L. Ed. 2d 166 (1974).
In Sampson the Supreme Court held that district courts are not "wholly foreclosed" from granting preliminary injunctive relief to prevent the discharge of a civilian government employee before exhaustion of all administrative remedies. 94 S. Ct. at 950. However, due to the "obviously disruptive effect" of judicial interference with the administrative process and "the well-established rule that the Government has traditionally been granted the widest latitude in the 'dispatch of its own internal affairs,'" the Court held that a plaintiff must "make a showing of irreparable injury sufficient in kind and degree to override these factors cutting against the general availability of preliminary injunctions in Government personnel cases." 94 S. Ct. at 949-950. These considerations are even more compelling in a military context. Noting "the peculiar and special relationship of the soldier to his superiors," the Supreme Court declared in Chappell v. Wallace that "civilian courts must, at the very least, hesitate long before entertaining a suit which asks the court to tamper with the established relationship between enlisted military personnel and their superior officers; that relationship is at the heart of the necessarily unique structure of the Military Establishment." 462 U.S. 296, 300; 103 S. Ct. 2362, 2366, 76 L. Ed. 2d 586 (1983) (citations omitted). Under Sampson, plaintiff must therefore establish that the need for injunctive relief in his case is so "extraordinary" as to merit the interference of the Court before his administrative remedies are exhausted. 94 S. Ct. at 953, n.68.
Plaintiff argues that he is likely to succeed on the merits because the Board abused its discretion in several ways. In Neal v. Secretary of the Navy, the Court of Appeals for the Third Circuit held that "judicial review [of military decisionmaking] is available ... to determine if an action was arbitrary, capricious, or an unlawful exercise of discretion." 639 F.2d 1029, 1036 (3d Cir. 1981) (citing Jaffee v. United States, 592 F.2d 712 (3d Cir. 1979), cert. denied, 441 U.S. 961, 99 S. Ct. 2406, 60 L. Ed. 2d 1066 (1979).
Plaintiff contends that the Board abused its discretion by considering evidence of acts of indecent exposure because the charges were dismissed in the previous captain's mast. However, § 0407(B)(1) of the Navy's Procedure Study Guide ("PSG") states that "the fact that a case has been to [captain's] mast . . . and was dismissed without punishment being imposed would not preclude a subsequent imposition of punishment for the dismissed offenses." This provision is in accord with the law of this Circuit. As the Court of Appeals held in Neal, "it simply is not the law that only charges culminating in an adverse decision on the merits have probative value." 639 F.2d at 1039. The captain's mast is ...