
    474 F. 2d 617
    DONALD S. WEIR, JR., v. THE UNITED STATES
    [No. 358-69.
    Decided February 16, 1973]
    
      
      Carl J. Felth, attorney of record for plaintiff.
    
      James F. Merow, with whom was Assistant Attorney General Harlington Wood, Jr., for defendant.
    Before CoweN, Chief Judge, Davis, SkeltoN, Nichols, Kashiwa, KuNZig, and BeNNEtt, Judges.
    
   KtjNzig, Judge,

delivered the opinion of the court :

In issue in this military pay case is whether the refusal of the Army Board for the Correction of Military Becords (the Board) to upgrade plaintiff’s “discharge under conditions other than honorable”, is an error of law, where plaintiff is a fully competent, adult soldier with self-confessed homosexual tendencies, confirmed by psychiatric evaluation.

We hold there is no error of law and the Board’s decision is correct.

Further in issue is whether plaintiff is estopped from obtaining a judgment for back pay on his subsequent, sworn claim that he lied to the Army to obtain a discharge, and that the Army improperly failed to ascertain that he lied.

We conclude plaintiff is so estopped. Having chosen voluntarily to announce himself under oath as a man with homosexual tendencies to avoid military duty, he cannot now be heard to complain of the consequences of his choice.

Only the question of entitlement is presently before this court, both parties having agreed to limit this phase of the case to the question of plaintiff’s right to recover, leaving quantum, if any, for further proceedings.

Plaintiff was born in 1942 in New Jersey. He graduated from Hamilton College in 1964, did a brief tour in the Peace Corps before being selected out during training as unsuitable, and then was, for a short time, successful as a real estate salesman in California. Early in 1965 plaintiff enlisted in the Army for three years in lieu of responding to the draft. After training as a power generator specialist, he was assigned to a missile battalion at Fort Hancock, New Jersey as a clerk in the battalion orderly room.

Sometime prior to August 12, 1965, plaintiff talked with the base chaplain and told him that he feared his homosexual inclinations would get him into difficulty with men in the barracks. Plaintiff was thereafter examined twice at the Mental Hygiene Consultation Service. First, a competent clinical psychologist, Lt. Pudy, examined him. Then both Lt. Rudy and a competent psychiatrist, Dr. Weltner, examined him at a second session.

On August 20, 1965, a report was prepared which made a psychiatric evaluation of plaintiff concluding he was fully competent and responsible for his actions. Elimination from the service was recommended with the diagnosis “sexual deviation — homosexuality.” On August 24, 1965, plaintiff was informed by a Major Rollins that he was an investigating officer conducting an investigation of homosexual activity. Major Rollins informed plaintiff of his legal rights. Plaintiff then made a sworn statement reading in pertinent part as follows:

I, Donald S. Weir, Jr., RA19824015, have been counseled and .advised of tbe basis of action recommended. I have a copy of the Commanding Officer’s report and copies of statements submitted to support the recommendations for elimination and the names of prospective witnesses to appear or to submit statements that will be used against me.
I have been offered counsel and I have declined to accept this offer.
I hereby waive hearing before a board of officers. I understand that if he, [sic] convening authorities direct a discharge, I will not be given another opportunity to appear before a board of officers before being discharged.
I would like to make the following statement.
I testify that I have a problem with homosexual tendencies which predates my coming on active duty with the US Army. These tendencies have trailed in my background since I was about nine (9) years old. Sporadically, these homosexual feelings supplant what society calls normal heterosexual activities. I have not engaged in these activities with military personnel at either this station or at my previous ones, Fort Belvoir and Fort Polk, respectively. Generally, these engagements were with casual acquaintances whom I have met while on either leave or pass. Since these tendencies could occur in the future, I believe my mission for the US Army would be impaired.

On August 31, 1965, plaintiff executed a further statement waiving a hearing before a board of officers and acknowledging he was aware of the adverse effect a “discharge under conditions other than honorable” might have upon him in subsequent civilian life:

I hereby waive hearing before a board of officers under AR, 635-89 and accept discharge for the good of the service. I understand that my separation from the Army may be effected by a discharge under conditions other than honorable; that I may be deprived of many rights and benefits as a veteran under both Federal and State law; and, that I may expect to encounter substantial prej - udice in civilian life in situations where the type of service rendered in any branch of the Armed Forces or the character of discharge received therefrom may have a bearing.

Plaintiff was discharged from the service because of homosexuality, as a Class II Homosexual, as outlined in AB, 635-89 on October 12, 1965. He was reduced in rank to the lowest enlisted grade and discharged “under conditions other than honorable”.

After failing to obtain relief in various forums below, plaintiff now comes before this court stating that 'he carefully planned and fabricated the story to get out of the Army. He admits he lied under oath at the 1965 investigation and psychological and psychiatric examinations. Nevertheless plaintiff seeks:

1. A money judgment 'paying him for the remaining period of his enlistment.
2. Eestoration to his rightful grade.
8. Consideration for a promotion to which he would have been entitled.
4. Alteration of his military record to give him an honorable discharge.
(Although, as a result of his own fabrication, he never served any of this time and actually earned nothing.)
■(“Eightful” is 'his allegation.)
(Although, again, as a result of his own fabrication, he wasn’t in the service, so obviously couldn’t have earned promotion.)
(Because the Army owed him some sort of duty to find out he was lying, that he was not a homosexual after all, and that he was merely trying to avoid military service.)

Surely, this must be the outstanding example of chutzpah to the nth degree.

During the intervening years after being discharged, plaintiff had taken no action in this matter whatsoever. A dismissal from employment, after it was found that he had falsified his service record, crystallized his desire to change the character of his discharge. He now seeks relief in this court.

There are two major issues in this case: the first being whether the defendant erred in not following its own discharge procedures properly; and the second being whether, in any event, plaintiff is estopped from asserting procedural error. We hold for the defendant on both points, each being able to stand on its own as alone justifying our decision.

I

Plaintiff argues that the Army failed to follow its own procedural regulations. AE 635-89, 'Section 2a does not permit homosexuals of either sex to serve in the Army in any capacity. Prompt separation of homosexuals is mandatory. However, Section 2b (1) adds that individuals who seek to avoid military service by an unverifiable assertion of homosexuality will not be processsed under this regulation. Thus, whether plaintiff must be discharged under AE 635-89 depends upon interpretation of the phrase, “unverifiable assertion of homosexuality”. Section 4b of the same regulation attempts to clarify what the Army must do to verify. Its principle, lead sentence is as follows:

A commanding officer receiving information that an individual under his command is a homosexual or has engaged in an act of homosexuality, will inquire thoroughly and comprehensively into the matter and ascertain all the facts in the case, bearing in mind the peculiar susceptibility of such cases to possible malicious charges.

Plaintiff, in effect, contends that these regulations, together, require a comprehensive investigation, going perhaps into community life, past experiences, even college and school episodes. One might well question whether 'his enthusiasm for investigation would have 'been as great back in 1965. An “investigation” is clearly what plaintiff did not want if his present testimony that this was a fraud on the Army is to be credited. That an admission of homosexuality, confirmed by psychological and psychiatric examinations, might well be considered “verification” seems 'beyond his comprehension.

In addition, the phrase “malicious charges”, suggests that this part of the regulation was aimed at preventing vicious denunciations and libelous charges of sexual deviation ~by or against third parties. The very sentence in which these words occur clearly refers to the situation where charges are made that a third party is a homosexual, not where an individual admits it by sworn statement. A self-admission by a fully-competent adult cannot possibly come within the “malicious charges” warning contained in the exact same sentence. Language such as appears in this regulation should be given a commonsense interpretation. Siegel v. United States, 84 Ct. Cl. 551, 18 F. Supp. 771 (1937).

Then, too, since modern, enlightened thinking regards homosexuality as an illness, not a crime, even more logical is an interpretation which would require psychological evaluation, rather than a criminal investigation . . . when the homosexual is self-confessed. Clearly, plaintiff knew his discharge might be other than honorable and that he might encounter substantial prejudice in later civilian life due to his admitted homosexuality. He signed a statement to that effect. Not a scintilla of evidence suggested at that time that he was lying.

Finally, an interpretation that sworn admission of homosexuality plus psychiatric confirmation is sufficient for military discharge is in accord with long-standing agency interpretation. JACA 1960/4901 (October 28, 1960), Comment No. 2. Therefore, both for the reason that the agency’s estáb-fished interpretation of the regulation is entitled to considerable weight, Barrington Manor Apartments Corp. v. United States, 198 Ct. Cl. 298, 459 F. 2d 499 (1972); Gornman v. United States, 187 Ct. Cl. 486, 409 F. 2d 230 cert. denied 396 U.S. 960 (1969), and that the regulation, reasonably interpreted cannot be said to require the Army to conduct an investigation of plaintiff’s military associates or prior college and business associates especially where there was absolutely no indication that plaintiff was lying, we conclude that there was no procedural violation, but rather full adherence to appropriate Army regulations. A sworn admission of homosexuality plus psychiatric confirmation is sufficient to satisfy the provisions of AK 635-89.

II

It has long been a standing principle in this court that the conduct and admissions of ;a party operate against him in the nature of an estoppel when the other party detrimentally relies upon that conduct or those admissions. Mahoning Investment Co. v. United States, 78 Ct. Cl. 231, 246, 3 F. Supp. 622, 629 (1933), cert. denied 291 U.S. 675 (1934). In the Mahoning case it was clearly stated that

[T]he vital principle is that he who by his language or conduct leads another to do what he would not otherwise have done, shall not subject such person to loss or injury by disappointing the expectations upon which he acted. Such a change of position is sternly forbidden. It involves fraud and falsehood, and the law abhors both.

Id.

There is no doubt in the instant case that the government took a position detrimental to itself when it relied upon the 1965 statements of the plaintiff and granted a premature discharge from the Army to a man who had been trained at government expense. The government is thus clearly entitled to invoke the doctrine of equitable estoppel to prevent the plaintiff from profiting from his earlier fabrications. The doctrine of equitable estoppel is an old doctrine to which we continue to adhere. Pacific Far East Line, Inc. v. United States, 184 Ct. Cl. 169, 194, 394 F. 2d 990, 1003 (1968).

Plaintiff himself was content to be processed under the regulation as it was administered and most certainly benefited by the type of verification that was employed. He gained his discharge, yet was not then subject to public disclosure of his alleged problem. Plaintiff is subsequently estopped after he had benefited from the regulation and its implementation from claiming that something was amiss. Henneberger v. United States, 187 Ct. Cl. 265, 267, 407 F. 2d 1340 (1969).

In light of the foregoing, we conclude that plaintiff is not entitled to recover. The petition is hereby dismissed.

Nichols, Judge,

concurring:

I join in the opinion and findings of the court, but desire to add a few words. It appears to me the really basic error Commissioner Day fell into was his disregard of the rule that a litigant seeking to take advantage of the failure of an agency to follow its own regulations, must show that the regulation involved was made to protect persons in the litigant’s class. The rule is discussed, and cases cited, in Chris Berg, Inc. v. United States, 192 Ct. Cl. 176, 426 F. 2d 314 (1970). As there stated, if a regulation appears intended to define and state the rights of a class of persons, it is presumptively intended to benefit those persons. Insofar as the regulations here involved required independent corroboration of a competent soldier’s assertion of Ms own homosexuality, it appears to me they were intended to prevent avoidance of military service by false confessions. Such a purpose is not compatible with protection of the individual soldier, and indeed as Judge Kunzig rightly points out, could have required an investigation which might have forced plaintiff to defend himself against serious criminal charges, if plaintiff’s present interpretation is correct.

It would be a perversion of the judicial process for plaintiff to prevail in this action. However, I do not wish what is said about the claim herein to prejudice plaintiff at that time which sooner or later must come, when those who have resorted to means of avoiding military service even as bizarre as this, or more so, come under consideration for executive or legislative clemency.

FINDINGS oe Fact

The court, having considered the evidence, the Report of Trial Commissioner William E. Day, and the briefs and argument of counsel, makes findings of fact as follows:

1. Plaintiff is a citizen of the United States and a resident of the State of California.

2. Plaintiff was bom on December 4,1942, at Long Branch, New Jersey, and resided in Matawan, New Jersey, until he was 14 years old. His family then moved to Bethel, Connecticut. Bethel remained his residence until 1964.

3. Plaintiff attended Hamilton College, then a small liberal arts men’s institution located in upstate New York. He played on the Hamilton varsity football team for 3 years, sang in the college choir and served as an officer of Ms social fraternity.

4. At Hamilton College, plaintiff had intended to prepare himself for further study in the field of medicine, having expressed interest in psychiatry. Difficulties in introductory courses in biology and mathematics convinced him to abandon Ms goal. He graduated with a major in English literature.

5. While in his senior year at Hamilton, plaintiff made application to the Peace Corps, and received notice in May 1964 that he had been accepted as a trainee. Following graduation in June of 1964, he reported to Davis, California, for preliminary training. He was selected out of the program in July of that year, due (according to the plaintiff) to his inflexibility and low tolerance for frustration.

6. After severance from the Peace Corps training program, plaintiff decided to remain in California. He obtained a position with a residential building firm in Woodland, California. In his employment with this firm he displayed energy and desire to succeed as a commission salesman and enjoyed corresponding financial success, earning upwards of $1,000 per month.

7. After having worked for the aforementioned firm for only a short time, plaintiff was directed by his draft board to report for his preinduction physical.

8. In the hope of receiving a better assignment as a volunteer than he would have received through the draft, plaintiff enlisted in the Army on January 5,1965, for a 3-year tour of duty.

9. Plaintiff was sent to Fort Polk, Louisiana, for basic training. Because of low mechanical aptitude scores, plaintiff was discouraged from applying for officers training school. In March 1965, following basic training, plaintiff was transferred to Fort Belvoir, Virginia, for power generator specialist schooling — which assignment did not coincide with plaintiff’s desires. On May 5,1965, the plaintiff was promoted to E-2 grade.

10. In the spring of 1965 plaintiff applied for an assignment with Army Intelligence. He went to Fort Holabird for tests and interviews, and was notified that he was being considered for transfer.

11. On July 14, 1965, upon completion of his training at Fort Belvoir, plaintiff was assigned to a missile battalion at Fort Hancock, New Jersey. His earliest assignment at Fort Hancock was custodial care of the base.

12. Plaintiff was interviewed at Fort Hancock by Sgt. Maj. Melvin H. Bonsall and was chosen to serve under bim as a clerk in the battalion orderly room.

13. Assignment to a missile battalion at Fort Hancock, New Jersey required a security clearance.

14. During bis 4 years at Hamilton College, plaintiff bad developed a warm friendship with Julian Engleman, the father of one of his college classmates. Plaintiff had often visited the Engleman home in Connecticut during college vacations, and had been counseled on several occasions by Mr. Engleman when personal problems had arisen.

15. Some time prior to August 12, 1965 plaintiff visited the Engleman home in Connecticut and told Mr. Engleman of plaintiff’s intention to inform Army authorities that he is a homosexual, in order to be discharged from the service. The plaintiff related to Engleman that he found it impossible to conform to Army life, that he objected to taking orders, and that the entire routine was one to which he felt he could not adjust.

16. Perceiving that plaintiff was in an agitated state, Mr. Engleman counseled him not to pursue his contemplated course of action, pointing out the serious consequences of such a stain on his record.

17. Plaintiff carefully planned his fabrication of homosexuality after learning that it was an easy way to win a discharge from the service.

18. Through his work in the orderly room, plaintiff became acquainted with one of the chaplains (Maj. Reginald J. Huebner). Some time prior to August 12, 1965, plaintiff talked with Maj. Huebner while walking across a parking lot on the base and told the chaplain that he feared that homosexual inclinations he had might get him into difficulty with the men in his barracks.

19. Upon being informed of plaintiff’s homosexual inclinations, the chaplain made an appointment for him to discuss the matter with an officer of the Mental Hygiene Consultation Service at Fort Monmouth, New Jersey.

20. On August 12, 1965, plaintiff was examined for 45 minutes at the Fort Monmouth Mental Hygiene Consultation facility by a duly qualified psychologist, Lt. Arthur J. Rudy.

21. On August 19,1965, plaintiff was again examined (for 45 minutes to an hour) by Lt. Rudy. Capt. John S. Weltner, M.D. (chief of the Mental Hygiene Consultation Service, Fort Monmouth, New Jersey) was also present.

22. Capt. Weltner commenced his active duty service in June 1964 as a psychiatrist (MOSC 3129). Weltner received his medical training at Harvard University. Prior to entering the service, he had treated patients since 1961 as a resident in training at the Massachusetts Mental Health Center and at the James Jackson Putnam Children’s Center.

23. The report of psychiatric evaluation dated August 20, 1965, prepared in regard to plaintiff, reads in pertinent part as follows:

1. WEIR, Donald S. Jr., PYT. RA 19 824015, HQS BTRY, 3/51, Ft. Hancock, N.J.
-Jí ^5
has been examined and evaluated at the Mental Hygiene Consultation Service, Fort Monmouth, New Jersey on 12 & 19 Aug 1965.
2. Psychiatric evaluation indicates that:
(a) The diagnosis in this case is: Sexual Deviation, homosexuality (3206).
(b) This patient has no physical or mental disability sufficient to warrant separation under provisions of AR 635-40 A.&B.
(c) This patient was and is mentally responsible both to distinguish right from wrong and to adhere to the right, and has the mental capacity to understand and participate in Board Proceedings.
3. Conclusions: Pvt. Weir was referred to MHCS by Chaplain Pleubner. Pvt. Weir had approached the Chaplain because he was fearful that his homosexual inclinations would get him into difficulty with men in his barracks. During the course of his psychiatric evaluation, Pvt. Weir indicated that his homosexual activity began when he was nine years old. He suggested that he had several homosexual experiences when he was in high school, even more frequent homosexual contacts when he was in college. After college, this 22 yr. old E-2, spent two years in California working as a Real Estate salesman. Again during this period of time, he was involved in several homosexual affairs. Since entering the service, Pvt. Weir indicates that he has had four homosexual contacts — all of these being with civilians who lived in the nearby community. He notes that all bis homosexual contacts have been typified by his tendency toward “promiscuity”, that is, he rarely has had more than a single contact with a homosexual partner. Dynamically it appears that his homosexuality is related to the fact that Pvt. Weir has longed for but never had a stable family situation with a father whom he could both love and respect. Although his parents were legally divorced when he was in college, he indicates that father was always in and out of the house — separated at frequent intervals from the family — and not particularly interested in a stable marital or parental relationship. He tears easily when he talks about his mother and sister and the deprivation that they, along with himself, have suffered because of his father’s neglect. He has attempted to compensate for father’s lack of attention by striving at one level for power — he describes himself as a “super-rocket” who was capable of earning $25,000 per year when he left college and is capable of even greater things in politics or finance. Tet, he questions whether he is really the “super-rocket” that others think he is — he suggests that he feels like “half a rocket” — “empty inside”.
At the present time, Pvt. Weir is greatly concerned because he doesn’t know just who he is. He sees himself as fluctuating between the “straight” (non-homosexual) world and the “gay” (homosexual) world. Again, he is torn between his drive for the realization of his ambition for power and his feeling that he would like to develop a stable family situation — he sees these last as mutually exclusive. Finally, Pvt. Weir, because of his difficulties with his father, has found himself quite distressed in the military — especially when he has to take orders from people just a little older than he is — and in this regard, finds himself very angry a good part of the time. He feels that when his anger overwhelms him, he turns toward homosexuality.
In addition to his homosexual difficulties, Pvt. Weir also reflects long-term characterological problems — passive-aggressiveness, and strong dependency concerns. Mental status examination reveals a bright, 22 yr. old, whose verbalizations, while most often, quite appropriate and goal directed, are sometimes marked by inappropriate word usage and mild loosening of associations. Although mildly depressed, affect is appropriate. It is felt that Pvt. Weir is responsible for his actions.
It is recommended that Pvt. Weir be eliminated from the service under provisions of AR 635-89.
(s) J. Weltner
JOHN S. WELTNER,
Oaptain, MO, Chief, MHO8.
(s) Arthur J. Rudy Arthur J. Rudy, l/Lt,M8C, Clinical Psychologist.

24. Unless some physical health problem becomes evident to the psychiatrist during the evaluation session, it was Dr. Weltner’s opinion that it would be unusual to refer the subject to another medical specialist. Plaintiff was not so referred. In the case of alleged homosexuality, it was Dr. Weltner’s opinion that no medical inquiry beyond that of a psychiatric evaluation would have had relevance. Further, it was his opinion that in determining homosexuality, there were no psychological testing procedures which would have been superior to the direct questioning procedures utilized in plaintiff’s case.

25. Dr. Weltner testified that in smaller clinics (like the one at Fort Monmouth) a clinical psychologist is expected to treat patients, and to perform functions similar to those of a psychiatrist.

26. Dr. Weltner testified that Lt. Rudy had prepared the psychiatric evaluation of plaintiff. It was customary procedure for Rudy to write up a patient’s report of psychiatric evaluation, which would then be reviewed by Weltner in his capacity as chief of the Mental Hygiene Consultation Service at Fort Monmouth.

27. Dr. Weltner could not recall the precise number of homosexual cases which came to his attention in his 2-year tour of duty as chief of the Mental Hygiene Consultation Service at Fort Monmouth. However, he was certain that the number was between 3 and 20, including the instant case.

28. Dr. Weltner could not recall whether or not he knew in August of 1965 the extent to which Lt. Rudy was familiar with and experienced in dealing with homosexual cases. Weltner stated that in the period in which he had supervised Rudy’s work, he thought Rudy had investigated between 8 and 20 such cases, including that of the plaintiff.

29. Dr. Weltner testified that while he was serving at Fort Monmouth, personnel in the Mental Hygiene Consultation Service were aware of the possibility that some men might falsely claim that they were homosexuals in order to be relieved of their military obligation.

80. Subsequent to his Army service, Dr. Weltner has had experience with individuals who have claimed to be homosexuals in order to avoid military service.

31. Relying solely upon the information contained in the subject report, Dr. Weltner’s opinion is that plaintiff was telling the truth during the second interview. Weltner based his conclusion on the grounds that:

(a) In his opinion, plaintiff’s personal history was consistent with his claim of homosexuality.
(b) In Weltner’s opinion, there are two items noted in the subject report which were impossible to simulate.

32. The two items which Weltner identified were inappropriate word usage and loosening of associations. The section of the aforementioned report which notes these phenomena reads as follows:

In addition to his homosexual difficulties, Pvt. Weir also reflects long-term characterological problems — passive-aggressiveness, and strong dependency concerns. Mental status examination reveals a bright, 22 yr. old, whose verbalizations, while most often, quite appropriate and goal directed, are sometimes marked by inappropriate word usage and mild loosening of associations. Although mildly depressed, affect is appropriate. It is felt that Pvt. Weir is responsible for his actions.

33. Prior to his discharge from the Army, plaintiff visited his mother in a New York hotel room where she was staying prior to departure for California. Mrs. Weir described her son’s condition at the time as being one of emotional distress. It was difficult for her to follow his incoherent sentences. Plaintiff informed her that he had fabricated a story that he was a homosexual in order to be discharged from the Army, and that his story had been believed by the Army authorities. Mrs. Weir remonstrated with plaintiff stating that such a course of conduct would have a profound effect on his future and urging that it would be better to tell the Army that he had lied and to accept the consequences.

34. Army Eegulations No. 635-89 (dealing with personnel separations of homosexuals), dated September 8, 1958, state in pertinent part as follows:

SECTION I
GENERAL
1. Purpose. These regulations prescribe the authority, criteria, and procedures for the disposition of military personnel who are homosexuals or alleged homosexuals.
2. Policy, a. Homosexual personnel irrespective of sex will not be permitted to serve in the Army in any capacity, and prompt separation of homosexuals, as defined in these regulations, is mandatory. Homosexuals are unfit for military service because their presence impairs the morale and discipline of the Army, and homosexuality is a manifestation of a severe personality defect which appreciably limits the ability of such individuals to function effectively in society.
b. The following classes of persons will not be processed under the provisions of these regulations:
(1) Individuals who seek to avoid military service by an unverifiable assertion of homosexuality.
(2) Those individuals who solely as a result of immaturity, curiosity, or intoxication have been involved in homosexual acts. Such individuals who are not eliminated from the service by sentence of court-martial and who are considered inept, unsuitable, or undesirable by reason of immaturity, alcoholism, or other character and behavior disorders may be eliminated from the service under other applicable regulations.
(3) In those rare cases in which homosexual acts are symptomatic of an incapacitating mental illness such as psychosis, medical treatment will be provided and separation from the service by reason of the primary medical condition will be made, if indicated.
$ $ ‡ ‡
3. Definitions. For the purpose of these regulations the following definitions apply:
a. Homosexual. An individual, regardless of sex,, who demonstrates by behavior a preference for sexual activity with persons of the same sex.
b. Homosexual act. Bodily contact between persons of the same sex actively undertaken or passively permitted with the intent of obtaining sexual gratification, or any proposal, solicitation, or attempt to perform such an act.
o. Class I. Class I consists of those cases which involve an invasion of the rights of another person, as when the homosexual act is accompanied by assault or coercion, or where the person involved does not willingly cooperate in or consent to the homosexual act, or, if the act is cooperated in or consented to, where the cooperation or consent was obtained by fraud. Class I also includes cases which involve a homosexual act with a child under the age of 16 years, without regard to whether the child cooperated in or consented to such an act.
d. Class II. Class II consists of those cases in which homosexual military personnel have engaged in one or more homosexual acts not within the purview of class I during active military service. Class II also includes all cases falling within class I in which it is determined not to prefer charges, or, if charges are preferred, not to refer them to a court-martial for trial, or such cases where trial is held but does not result in a punitive discharge. No distinction is made in the administrative handling of these cases involving homosexual acts because of the active or passive nature of the conduct of the participants.
e. Class III. Class III consists of those cases in which the homosexual individual involved has not engaged in a homosexual act during active military service, and those cases otherwise within the purview of these regulations but not falling within the purview of classes I or II.
iji ‡ ^ $

35. The above regulations further provide:

SECTION II
PROCEDURES
4. Responsibility. * * *
b. A commanding officer receiving information that an individual under his command is a homosexual or has engaged in an act of homosexuality, will inquire thoroughly and comprehensively into the matter and ascertain all the facts in the case, bearing in mind the peculiar susceptibility of such cases to possible malicious charges. Flagging action will be initiated in accordance with AR 600-31. When the report of investigation does not substantiate the allegation of homosexuality or the commission of a homosexual act, the case will be closed and flagging action under AR 600-31 removed. When the report of investigation substantiates such allegations, the commanding officer will—
(1) Refer the individual for medical evaluation (par. 9).
(2) Upon receipt of the medical evaluation of the individual concerned, and in the absence of a major mental illness, determine under which class the case should be processed by comparing the facts with the definitions of class I, II, and III, and then process the case accordingly.
*****
9. Documentation of cases. It is essential that all facts indicating homosexual tendencies or acts be recorded properly, and that signed statements of all witnesses be obtained (see UCMJ, Art. 31). In all cases, including those in which the immediate commanding officer requests board action, the report will include the statement of the individual’s date of birth; the amount of active service of the individual concerned; the date and period of the individual’s current period of service; statements of witnesses; a copy of general court-martial charges and investigations under Article 32, when applicable; the resignation letter of the individual concerned or a signed statement by the enlisted person regarding acceptance of discharge; a detailed signed statement from the individual concerned (in class III cases) relative to his tendencies and any past homosexual actions, or his statement to the effect that he does not desire to make a statement; and the commanding officer’s detailed comments and recommendations. Also included with the file will be a medical evaluation, including psychiatric study of the individual concerned. An adequate medical evaluation will include as a minimum:
a. Personal history, including, if any, a detailed account of development of homosexuality.
b. Report of mental status examination.
g.Psychiatric diagnosis, if any.
d. Opinion regarding the existence of homosexuality. (No recommendations will be made concerning the classes of homosexual cases defined in par. 3.)
e. Statement as to mental responsibility.
*****
g. Recommendation regarding medical disposition of the case, if any.
h. Statement as to whether there are any medical contraindications for administrative disposition.
*s» »»» H»
i. A copy of the medical evaluation to include the psychiatric study will be filed with the individual’s health record.
»)<$$$$

38. On August 24, 1985, plaintiff executed a sworn statement, reading in pertinent part, as follows:

I, Donald S. Weir, Jr., RA19824015, have been counseled and advised of the basis of action recommended. I have a copy of the 'Commanding Officer’s report and copies of statements submitted to support the recommendations for elimination and the names of prospective witnesses to appear or to submit statements that will be used against me.
I have been offered counsel and I have declined to accept this offer.
I hereby waive hearing before a board of officers. I understand that if he, [sic] convening authorities direct a discharge, I will not be given another opportunity to appear before a board of officers before being discharged.
I would like to make the following statement.
I testify that I have a problem with homosexual tendencies which predates my coming on active duty with the 'US Army. These tendencies have trailed in my background since I was about nine (9) years old. Sporadically, these 'homosexual feelings supplant what society calls normal heterosexual activities. I have not engaged in these activities with military personnel at either this station or at my previous ones, Fort Belvoir and Fort Polk, respectively. 'Generally, these engagements were with casual acquaintances whom I have met while on either leave or pass. Since these tendencies could occur in the future, I believe my mission for the US Army would be impaired.

37. On August 31, 1965, plaintiff executed a further statement, waiving a hearing before a board of officers, as follows:

I hereby waive hearing before a board of officers under AE 635-89 and accept discharge for the good of the service. I understand that my separation from the Army may be effected by a discharge under conditions other than honorable; that I may be deprived of many rights and benefits as a veteran under both Federal and State law; and, that I may expect to encounter substantial prejudice in civilian life in situations where the type of service rendered in any branch of the Armed Forces or the character of discharge received therefrom may have a bearing.

38. The plaintiff’s battery commander, on August 23, 1965, sent a letter to the Commanding Officer, 3rd Missile Battalion, 51st Artillery, Fort Hancock, New Jersey, which reads as follows:

1. UP AE 635-89 recommend PVT E2 Donald S. Weir Jr., EA 19824015, a member of this unit be discharged from the service.
2. The following personnel [sic] data is submitted:
a.Donald S. Weir Jr., PYT E-2 EA 19824015, 22 years old, enlisted 5 January 1965 for a period of three (3) years with no prior service.
3. This recommendation is based on the following information:
a. PVT E2 Weir admits to homosexual interest and has expressed a continued desire to participate in homosexual activities. (See Eeport of Examination and Evaluation, inclosure 1, and PVT Weir’s statement inclosure 2.)
b. AFQT Score: 62
c. Aptitude Area Scores: EL: 121, GM: 83, MM: 109, CL: 132, GT: 130, EC: 119, IN: 125, and AE: 113.
d. CONDUCT: Unsatisfactory. EFFICIENCY: Excellent.

By first endorsement the addressee sent the above-quoted letter to higher authority, the Commanding Officer, 19th Artillery Group (AD), Highlands Air Force Station, Highlands, New Jersey, in words which read:

1. Eecommend that Private Weir be discharged from the service UP of AE 635-89.
2. EM has been counseled and advised of the basis for the action recommended UP AR 685-89 and has been afforded the opportunity to be represented by counsel, an opportunity which he declines.
3. EM has submitted written statements which are attached as inclosnres 2 and 3.

By further endorsements the letter reached the Commanding General, Headquarters, 1st Region, United States Army Air Defense Command, Fort Totten, Flushing, Long Island, New York, who placed the following endorsement thereon, through channels to the 3rd Missile Battalion at Fort Hancock, New Jersey:

1. Approved.
2. Private Donald S. Weir, Jr., RjA 19 824 015, will be discharged from the service because of Homosexuality, as a Class II Homosexual, as outlined in paragraph 3d, AR 635-89.
3. Providing enlisted man is not already in the lowest enlisted grade, he will be immediately reduced thereto, in accordance with para 13, AR 635-89 and para 31e, AR 624-200.
4. DD Form 258A (Undesirable Discharge) will be furnished. The reason and authority for separation to be entered in item 11c, DD Form 214, will be “AR 635-89, SPN 257.” To preclude reentry into the U.S. Army, “Para 10, AR 601-210 applies”, will be entered in item 32, DD Foi'm 214. Reenlistment Code RE-4 will be entered above item 1 on DD F orm 214.

39. Following his discharge from the Army, plaintiff returned to California. Although he had been advised by Lt. Rudy, Capt. Weltner and his mother to seek professional psychiatric advice, plaintiff did not follow such a course of action.

40. In California, plaintiff obtained a sales position with a division of the same residential building firm for which he had worked prior to his enlistment in the Army. It is not clear why he left. Later plaintiff obtained various positions in retail sales and as a tax assessor. Some time prior to May 8, 1968, he applied for a position as a sales representative with the Xerox Corporation. In his application for this position he falsified his service record. After a number of interviews he was hired, only to be dismissed shortly thereafter when the results of the company’s check of the plaintiff’s military record proved unfavorable.

41. As a result of this dismissal from Xerox Corporation, plaintiff decided to attempt to change the character of his discharge.

42. On May 8,1968, plaintiff (by counsel) filed an Application for Eeview of Discharge or Separation from the Armed Forces of the United States, requesting that the Army Discharge Eeview Board upgrade his undesirable discharge.

43. A hearing was held on plaintiff’s application at which time testimony was taken from Tyrone Brown, a college associate of plaintiff.

44. In addition to the testimony of Tyrone Brown, plaintiff presented to the Board a number of affidavits and letters from friends, relatives, associates, educators and employers.

45. On September 11, 1968, the Army Discharge Eeview Board denied plaintiff’s request that his discharge be upgraded, finding that “THE APPLICANT WAS PEOP-EELY DISCHAEGED.”

46. On October 3, 1968, plaintiff petitioned the Army Board for Correction of Military Eecords, requesting that his “[d] emotion to Pvt. E-l, and administrative discharge UN-DEE CONDITIONS OTHEE THAN HONOEABLE, DD Form 258, be corrected to reflect actual character of service.” Plaintiff presented to the Board the record of the proceedings before the Army Discharge Eeview Board and requested a hearing before the Board.

47. On May 28,1969, plaintiff’s application was denied by the Army Board for Correction of Military Eecords, without a hearing as had been requested by the plaintiff.

CONCLUSION OE LAW

Upon the foregoing findings of fact and opinion, which are adopted by the court and made a part of the judgment herein, the court concludes as a matter of law that plaintiff is not entitled to recover and the petition is dismissed. 
      
      We are indebted to Trial Commissioner William E. Day for bis findings of fact, which have been adopted in their near entirety, and for his recommended opinion, though we have substituted our own in reaching a different result.
     
      
       A position -which would require a security clearance.
     
      
       While under psychiatric examination, plaintiff described his homosexual contacts since entering military service as having occurred with civilians and as being promiscuous, i.e. plaintiff rarely had more than a single contact with a homosexual partner.
     
      
       AR 630-89 as amended by Change 1, April 14, 1959 and Change 2, January 22,1960 reads in pertinent part:
      'Section I
      GENERAL
      1. Purpose. These regulations prescribe the authority, criteria, and procedures for the disposition of military personnel who are homosexuals or alleged homosexuals.
      2. Policy, a. Homosexual personnel irrespective of sex will not be permitted to serve in the Army in any capacity, and prompt separation of homosexuals, as defined in these regulations, is mandatory. Homosexuals are unfit for military service because their presence impairs the morale and discipline of the Army, and homosexuality is a manifestation of a severe personality defect which appreciably limits the ability of such individuals to function effectively in society.
      6. The following classes of persons will not be processed under the provisions of these regulations :
      (1) Individuals who seek to avoid military service by an unverifiable assertion of homosexuality.
      (2) Those individuals who solely as a result of immaturity, curiosity, or intoxication have been involved in homosexual acts. Such individuals who are not eliminated from the service by sentence of court-martial and who are considered inept, unsuitable, or undesirable by reason of immaturity, alcoholism, or other character and behavior disorders may be eliminated from the service under other applicable regulations.
      (3) In those rare cases in which homosexual acts are symptomatic of an incapacitating mental illness such as psychosis, medical treatment will be provided and separation from the service by reason of the primary medical condition will be made, if indicated.
      ♦ * $ * *
      3. Definitions. For the purpose of these regulations the following definitions apply:
      
        а. Homosexual. An individual, regardless of sex, who demonstrates by behavior a preference for sexual activity with persons of the same sex.
      б. Homosexual act. Bodily contact between persons of the same sex actively undertaken or passively permitted with the intent of obtaining sexual gratification, or any proposal, solicitation, or attempt to perform such an act.
      c. Glass I. Class I consists of those cases which involve an invasion of the rights of another person, as when the homosexual act is accompanied by assault or coercion, or where the person involved does not willingly cooperate in or consent to the homosexual act, or, if the act is cooperated in or consented to, where the cooperation or consent was obtained by fraud. Class I also includes cases which involve a homosexual act with a child under the age of 16 years, without regard to whether the child cooperated in or consented to such an act.
      d. Class II. Class II consists of those cases in which homosexual military personnel have engaged in one or more homosexual acts not within the purview of class I during active military service. Class II also includes all cases falling within class I in which it is determined not to prefer charges, or, if charges are preferred, not to refer them to a court-martial for trial, or such cases where trial is held but does not result in a punitive discharge. No distinction is made in the administrative handling of these cases Involving homosexual acts because of the active or passive nature of the conduct of the participants.
      
        e. Class III. Class III consists of those cases in which the homosexual individual involved has not engaged in a homosexual act during active military service, and those cases otherwise within the purview of these regulations but not falling within the purview of classes I or II.
      Section II
      PROCEDURE'S
      4. Responsibility, a. It is the duty of every member of the military service to be alert to situations affecting discipline, morale, or security of the military forces. In this connection, overt homosexuality is not to be condoned, and when discovered, will be reported immediately through command channels to the commanding officer having jurisdiction over the individual concerned.
      b. A commanding officer receiving information that an individial under his command is a homosexual or has engaged in an act of homosexuality, will inquire thoroughly and comprehensively into the matter •and ascertain all the facts in the case, bearing in mind the peculiar susceptibility of such cases to possible malicious charges. * * *
     
      
       Plaintiff served only nine months and eight days, a substantial part of which had been spent being trained at government expense.
     
      
       Nor is there any evidence here that plaintiff, who now blames the Army for not “investigating far enough”, offered to cooperate in any way by giving names, addresses, dates, etc.
     
      
       Plaintiff’s argument would reach the unsupportable result of placing a much greater investigative burden on the Army in accepting a self-admission of homosexuality than is placed on a Federal District Court judge in accepting a plea of guilty in a criminal action. Weaver v. United States, 454 F. 2d 315 (7th Cir. 1971) ; United States v. Rizzo, 362 F. 2d 97 (7th Cir. 1966).
     
      
      
         The belief that fabrication about homosexuality is the easiest “escape route” from the service is not necessarily the case.
      It is a curious and interesting commentary on the general prejudice against homosexuals and the desire to eliminate them from the service that there would coexist a widespread belief held by responsible persons— then as today — that many individuals might profess homosexuality in order to evade (or seek a discharge from) military service. Such beliefs persist despite obvious evidence of a widespread and deep-rooted revulsion against homosexuality which would preclude the utilization of such evasive methods by non-homosexuals, particularly when more socially acceptable forms of simulation (e.g., physical illness) can be employed.
      L. West & A. Glass, Sexual Behavior and the Military Law, in Sexual Behavior and the Law 250, 254 (R. Slovenko ed. 1965) ; see generally Comment, Homosexuals in the Military, 87 Fordham L. Rev. 465 (1968-69).
     
      
       This situation is not unlike a Conscientious Objector who is excused from certain military service because of his own beliefs without further substantiation. cf. Welsh v. United States, 398 U.S. 333 (1970).
     
      
       In Dr. Weltner’s opinion, Lt. Rudy was an outstanding clinician, and upon the recommendation of Dr. Weltner, Rudy received the Army Commendation Medal for his services at the Mental Hygiene Consultation Service at Fort Monmouth.
     
      
       These regulations were amended by Change 1, April 14, 1959 and Change 2, January 22, 1960.
     