
    416 F. 2d 1372
    RICHARD L. SCHLEGEL v. THE UNITED STATES
    [No. 369-63.
    Decided October 17, 1969]
    
      
      Rufus W. Peehham, Jr., for plaintiff. Carl L. Shipley, attorney of record. Shipley, Aherman & Piehett, of counsel.
    
      Edward Weintraub, with whom was Assistant Attorney General William D. Ruehelshaus, for defendant.
    Before CoweN, Chief Judge, Laeamore, Durfee, Davis, ColliNS, SkeltoN, and Nichols, Judges.
    
   Skelton, Judge,

delivered the opinion of the court:

This is a civilian pay case in which the discharged employee, Bichard Schlegel, is entitled to the benefits of the Veterans’ Preference Act of 1944, 58' Stat. 387, as amended, 5 U.S.C. §§ 851 et seg.

Prior to his removal on July 31, 1961, the petitioner had served creditably as a civilian in the Department of the Army, Office of Transportation, in Hawaii. Occasionally, plaintiff would serve as Staff Duty Officer after normal working hours or on weekends. During these occasions, whenever a “top secret” message was received at the office, the plaintiff could not read it because he possessed only a “secret” security clearance. Consequently, he would have to inform a person with “top secret” security clearance upon receipt of the message. Since over 50 percent of the material which passed through the office was “secret or higher,” the plaintiff’s superiors determined that his security clearance should be upgraded to “top secret.” A routine request for such clearance was instituted by Colonel Jean Sams, the Transportation Officer for the headquarters of the Army structure in the Pacific. The requested clearance was withheld, and subsequently, Colonel Sams received from Army Intelligence investigative reports which described participation by plaintiff in homosexual activities. On June 29,1961, the plaintiff was served with an advance Notice of Proposed Bemoval issued by Colonel Sams. The letter reads in pertinent part:

1. You are hereby notified that it is proposed to effect your removal from your position as Administrative Officer (Program and Budget), GS-341-12, Office of the Transportation Officer, United States Army, _ Pacific, APO 958, on 31 July 1961, for immoral and indecent conduct.
2. Specifically, the following charges are alleged against you in support of the proposed action:
a. That, in or about August 1959, at your home in Honolulu, Hawaii, you did commit immoral and indecent acts with Francis E. Deller, by_ fondling his penis and asking him if he would “give in” to you.
b. That, on or about 10 June 1960, at 2052 Mott-Smith Drive, Honolulu, Hawaii, you did commit immoral and indecent acts with Lance Corporal Harry Hoyt Jordan, Jr. by fondling Ms penis, masturbating 'him, 'and asMng Mm to play with your private parts.
c. That, on or 'about 24 June 1960, at 2052 Matt-Smith Drive, Honolulu, Hawaii, you did commit immoral and indecent 'acts with Dance Corporal Harry Hoyt Jordan, Jr. by unfastening his underwear, fondling his penis, masturbating him until he reached a climax, attempting to commit anal sodomy with him, and forcing yourself upon him when he resisted your advances, thereby tearing his underwear.
d. That, in or about September 1960, at your apartment in Honolulu, Hawaii, you did commit ■immoral and indecent acts with Dance Corporal Freddie D. Riddles, by undressing him, fondling Ms private parts, and masturbating him until he experienced an orgasm.
3. Your conduct as charged in paragraph 2 above is of such a nature that it reflects discredit upon tMs installation, the Department of the Army, and the ethical stature of Federal employees. This conduct, specifically as it pertains to your 'sexual relations with other men, defiles our social standards, and tMs command has an obligation to protect its employees against associations that might be detrimental to their standards of moral ethics.
4. You have the right to answer this notice of proposed action personally, in writing, or both, to Colonel Jean P. Sams, Transportation Officer, Hq USARPAC, APO 958, or in the event of my absence to my delegated representative, Colonel E. P. Ketcham, Jr, Transportation Office, Hq USARPAC, APO 958, and to submit any and all evidence, including witnesses and affidavits you may desire within ten working days from the date of receipt of this notice. Your right of personal reply does not contemplate a hearing with testimony from witnesses for both sides of the controversy; rather it is an opportuMty for your personal refutation of this advance notice. If you desire to reply in person, you will be afforded an opportunity to be heard and you may be accompanied by a representative if you so desire. A written record will be made of your personal reply and your signature requested to indicate that you agree with the accuracy of the record.
5. Mr. Henry D. Radi of the Office of Civilian Personnel, Building S-330, Ordnance Area, Fort Shatter, will make such, pertinent regulations 'and records available as you may require for preparation of your reply.

The plaintiff requested copies of pertinent regulations and an extension of time to file a reply. These requests were granted, and on July 19, 1961, the plaintiff replied to the charges, neither admitting nor denying them. Instead, he submitted a letter and attached documents which, among other things, defended private, consensual, homosexual behavior among adults. The Army, however, decided to remove plaintiff effective July 31, 1961, and issued a Notice of Decision to that effect on July 21,1961.

Plaintiff appealed this decision to the regional office of the Civil Service Commission. At the hearing, the affidavits of marines Riddles, Jordan, and Deller, which fully described the alleged homosexual acts of plaintiff contained in the removal notice, were introduced into evidence. Despite the fact that plaintiff requested Colonel Sams to produce several witnesses, including the three marines, the only witness who appeared was Harold Eubanks, the Civilian Personnel Director. The removal action was sustained by the regional office of the Civil Service Commission on September 28,1961. The Board of Appeals and Review of the Civil Service Commission upheld the regional decision on January 20,1962.

The petitioner filed suit in the Court of Claims on December 20,1963, and the case was referred to Commissioner Stone. At the trial in this court, marine Riddles testified that all of the information contained in the affidavit executed by him in 1961 was true and that he had given it voluntarily. Additionally, Colonel Sams and other witnesses who were absent at the Civil Service Commission hearing were present at the trial.

Before the specific issues in this case are discussed, the general guidelines for review by this court should be recognized. As we stated in Morelli v. United States, 177 Ct. Cl. 848, 858 (1966) :

The power of removal from office in the executive branch of the Federal Government, absent some specific provision, to the contrary, is incident to the power of appointment. Keim v. United States, 177 U.S. 290, 293 (1900). Where an administrative agency has complied with the prescribed procedural requirements, the Court of Claims can only review the action to determine whether the officials who effected the dismissal acted arbitrarily, capriciously or were so grossly erroneous as to be in bad faith, as for instance where they may have acted without substantial evidence to support their decision or where they exceeded their authority. Bayly v. United States, 99 Ct. Cl. 598 (1943); Love v. United States, 119 Ct. Cl. 486, 493, 98 F. Supp. 770, 774 (1951), cert. denied, 342 U.S. 866.

Thus, there are essentially two focal points which comprise our scope of review. One involves a consideration of whether the agency violated its own regulations in effecting the employee’s ultimate removal. Service v. Dulles, 354 U.S. 363 (1957). The other concerns the question of whether the employee’s removal was accomplished in an arbitrary or capricious manner or was consummated without substantial evidence to support such action. Beckham v. United States, 179 Ct. Cl. 539, 543-44, 375 F. 2d 782, 785 (1967), cert. denied, 389 U.S. 1011. Moreover, in considering the issues of arbitrariness and lack of substantial evidence, we are entitled to review all available evidence, including de novo evidence taken before one of our commissioners, as well as the administrative record; Brown v. United States, 184 Ct. Cl. 501, 396 F. 2d 989 (1968); Beckham v. United States, supra.

After weighing the arguments of both parties and examining carefully the evidence in its entirety, we conclude that the plaintiff’s removal was proper and must stand.

I

The petitioner contends that the charges against him in the advance Notice of Proposed Eemoval lacked the specificity required by Department of the Army Civilian Personnel Regulations (hereinafter CPE) S1.2,2-2.ti. (February 1961), which provides:

Reasons for the Action
d. The advance notice must state dll of the reasons for the proposed action, specifically and in detail. The stated reasons are required to be supported by evidence such as dates, incidents, witnesses, or references to actions, so that the employee will be able to understand with certainty exactly why the action is proposed and exactly what offenses, delinquency in conduct or performance, or reasons, are being relied upon. Appointing officers cannot rely upon a notice of decision, grievance hearings, conversation, or subsequent correspondence with the employee as a means of amplifying the charges. Neither can the appointing officer state general reasons upon the presumption, even though warranted, that the employee will readily understand the basis for the proposed action. * * *. {Emphasis in original.]

This court has recently stated the principles of law governing Veterans’ Preference Act removal notices in Burkett v. United States, 185 Ct. Cl. 631, 634, 402 F. 2d 1002, 1004 (1968), where the court said:

A. Inadequacy of the notice of charges. Section 14 of the Veterans’ Preference Act, 5 U.S.C. § 863 (1964) (currently 5 U.S.C. § 7512(h) (Supp. Ill 1965-67)), orders that, for a veteran, the notice must state “any and all reasons, specifically and in detail, for the proposed action.” This requirement, the court has explained, is meant “to afford the employee a fair opportunity to oppose his removal, and the charges must he considered with the view of determining whether plaintiff was informed of the 'basis of the proposed action with sufficient particularity to apprise him of allegations he must refute or acts he must justify. The technical rules of criminal proceedings are not applicable here, and the facts cmd circumstances of a particula/r case are regarded as important in such an inquiry” * * *. [Emphasis previously added.]

The plaintiff complains that the notice of proposed removal identifies only one “charge,” i.e. “immoral and indecent conduct.” He contends that this vague and unspecific “charge” is accompanied by four specifications which are incidental to the “charge” and which cannot be considered “charges” themselves. The plaintiff’s alleged confusion about the exact nature of the “charges” against him is a specious but apocryphal argument. Initially, the notice of proposed removal itself refers to the four enumerated instances of misconduct as “charges.” In paragraph 2, the letter states:

2. Specifically, the following charges are alleged against you * * *: [Emphasis supplied.]

Later, in paragraph 3, the letter states:

3. Your conduct as charged in paragraph 2 * * *. [Emphasis supplied.]

Thus, the literal terms of the notice of proposed removal indicate that the alleged incidents of misconduct are “charges,” rather than specifications which support one single “charge.”

In addition, the requirements of Burkett v. United States, supra, have 'been satisfied. There can be no doubt that the plaintiff was informed with specific certainty of the nature of the conduct for which removal was contemplated. Indeed, the detailed descriptions are painfully precise and exact. But even assuming, argumdo, that the allegations against him were ambiguous, the plaintiff did not suffer a lack of understanding regarding the reasons for his proposed removal. Quite to the contrary, he prepared an exhaustive reply to the removal notice, therein indicating an accurate comprehension of the reasons for his proposed removal. As this court has held, where the plaintiff is aware of the charges against him, his complaints concerning ambiguity will be rejected. Greenway v. United States, 175 Ct. Cl. 350, 358 (1966), cert. denied, 385 U.S. 881, reh. denied, 385 U.S. 954; Queen v. United States, 137 Ct. Cl. 167 (1956). For all of the foregoing reasons, the charge did not lack the specificity required by law.

II

The published applicable Army regulations regarding dismissal upon charges are CPE. S1.2, S1.3 (February 1961) and CPE S1.2 (March 1961). CPE SI.2-2 states in pertinent part:

‡ $ $ $
Relationship of Action to Efficiency of the Service
b. A requirement of both the Lloyd-LaFollette and Veterans’ Preference Acts is that adverse actions will be taken only for such cause as will promote the efficiency of the service. Therefore, the advance notice should show the manner in which the proposed action is related either to the employee’s duty performance or to the carrying out of the mission of the installation.

CPE S 1.3-3 relates to adverse actions initiated 'by the appointing officer and reads in pertinent part:

*****
Gwid&lmes
c.
*****
(2) Misconduct while off duty does not, in itself, serve as a basis for removal. There must be a showing that the misconduct affected the employee’s performance on the job, or the specific manner in which the misconduct reflected discredit upon the Department of the Army or the employing installation, or the manner in which the misconduct was otherwise detrimental to the efficiency of the service.

Despite the plaintiff’s protestations to the contrary, the government is not using these regulations to usurp the police power of the state of Hawaii by controlling the private conduct of Army employees. And this court certainly lacks the temerity to install itself as an arbiter of moral propriety among government workers. Nevertheless, under the regulations quoted above, when an employee’s misconduct impairs the efficiency of the service, he can be removed from his position regardless of his ability to reconcile his behavior with his personal standard of morality. 'Specific regulations describing certain acts of homosexuality are not required. No regulatory scheme can anticipate every particular instance where employee misconduct might occur. Consequently, regulations are frequently couched in general terms, as in OPE S1.3-3c (2).

The necessity for broad provisions is recognized also in Appendix B to CPE 02, where penalties used as a general guide for 'disciplinary action are suggested for various instances of misconduct. Table I in the appendix is entitled “Penalties for Delinquency or Misconduct.” Under this table, one of the listed offenses is “Immoral or indecent conduct,” ■and one of the suggested penalties for the first offense is removal. Moreover, there can be no doubt that the plaintiff was aware of the standard of conduct expected of him, as required by CPR 02.1-3.a. Tbe affidavit of marine Deller stated tbat tbe plaintiff asked Deller to keep secret bis advances and expressed fear of losing bis job with tbe Army if bis 'homosexual tendencies were known. Thus, tbe record is clear tbat plaintiff 'knew what standard of conduct was expected of him. Of course, bis variation from this expected standard of conduct must be termed “misconduct.”

Under OPR Sl.3-3c(2), 'misconduct alone cannot be used as a basis for removal. Tbe misconduct must affect tbe employee’s performance, reflect discredit upon tbe employing installation, or detrimentally affect tbe efficiency of the service. Furthermore, since plaintiff is a veteran, Ms removal must promote tbe efficiency of tbe service in order to comply with OPR S1.2-2b and tbe Veterans’ Preference Act of 1944, 5 U.S.C. § 863 (1964) (currently 5 U.S.C. § 7512(b) (Supp. IV 1965-68)). If tbe record supports tbe position that the plaintiff’s misconduct was detrimental to the efficiency of tbe service and tbat Ms removal will promote tbe efficiency of tbe service, both tbe Veterans’ Preference Act and tbe Army regulations will have been satisfied.

Whether a person’s discharge will promote tbe efficiency of tbe service is an administrative decision to be determined within the discretion of the agency, and no court has power to review the action, if taken in good faith. Brownell v. United States, 164 Ct. Cl. 406, 408-09 (1964); Gadsen v. United States, 111 Ct. Cl. 487, 489, 78 F. Supp 126 (1948). At tbe trial of the instant case before Commissioner Stone, three of plaintiff’s superiors offered testimony indicating tbat tbe morale and efficiency of tbe office would have been affected by plaintiff’s continued presence. This testimony, when coupled with tbe administrative determinations concerning efficiency of tbe service, constitutes convincing proof that plaintiff’s removal promoted tbe efficiency of the service and eliminated plaintiff’s detrimental influence on tbe efficiency of the service.

This case can be distinguished on tbe facts from Norton v. Macy, 417 F. 2d 1161 (No. 21,625, decided July 1, 1969), by the U.'S. Court of Appeals for the District of Columbia Circuit. In that case the alleged wrongful act by the plaintiff, which was termed a “homosexual advance” toward another adult male, for which he was dismissed from government service as being immoral conduct and to promote the efficiency of the service, falls far short of the homosexual acts committed by the plaintiff in the instant case. In that case, the evidence showed that the plaintiff, while driving his car on a public street in downtown Washington, D.C., “felt the leg” of an adult male passenger riding in the car with him. The passenger only rode about four blocks with the plaintiff (once around Lafayette Square) and then got out of the car. The passenger interpreted plaintiff’s act as a homosexual advance. The plaintiff denied it. There was no evidence of any other act between the plaintiff and the passenger that was homosexual in character. The plaintiff was dismissed from his job on these facts. The Circuit Court of Appeals held that the dismissal was improper, with Judge Tamm dissenting.

The facts in our case are completely different. The evidence shows that the plaintiff committed four homosexual acts on three different adult males on four different occasions. There is no doubt as to the homosexual character and completeness of the acts. Any schoolboy knows that a homosexual act is immoral, indecent, lewd, and obscene. Adult persons are even more conscious that this is true. If activities of this kind are allowed to be practiced in a government department, it is inevitable that the efficiency of the service will in time be adversely affected. In our case, it was determined by the Army and the Civil Service Commission that the plaintiff was guilty uf immoral and indecent conduct which impaired the efficiency of the service and that his removal would promote the efficiency of the service. We agree.

Ill

Plaintiff also contends that he had an employment contract with the Army and that this contract was abrogated illegally by his removal. At the time of plaintiff’s employment with the Army, persons recruited from the continental United States were required to agree to three-year terms of service in order to qualify for paid transportation, home leave, and other benefits. Before his removal, the petitioner had served one three-year term and had executed, on November 9,1960, an application for re-employment leave and a new transportation agreement to become effective February 20, 1961. Plaintiff asserts that this agreement was an employment contract and relies upon an Army memorandum not in evidence to support this contention. Paragraph 8 of this memorandum, Army Pacific Memorandum No. 690-15, provides:

Re-employment leave applications submitted by eligible employees will be approved when:
(1) Workload conditions permit;
(2) Employee’s job performance and general suitability are such that he would be recommended for an additional tour of duty;
(3) There is reasonable assurance that a need for employee’s services will continue to exist.

In addition to this memorandum, the plaintiff argues that the Army recognized the contractual nature of his agreement in the Notice of Decision letter of July 27,1961, which stated in part:

# ❖ * ❖
2. Since you will have completed only approximately five (5) months of your current transportation agreement, executed by you on 9 November 1960 and which became effective 20 February 1961, your date of return to Hawaii from reemployment leave, you 'are not eligible for return transportation at government expense to your actual residence. Such travel must be at your own expense. In addition, you will be required to reimburse the U.S. Government for all expenses incurred by the government incident to your return travel from reemployment leave from Lewisburg, Pennsylvania. However, shipment of your household goods to Lewisburg, Pennsylvania, will be authorized since you did complete your minimum period of service.

The plaintiff’s theory for recovery is that, after one tour of duty, the Army must satisfy itself as to his suitability before agreeing to subsequent three-year agreements and cannot remove him except for misconduct occurring after the new agreement. This requirement, plaintiff asserts, is stated in section (2) of paragraph 8 of the Army memorandum quoted above. In addition, the petitioner relies upon Murray v. United States, 154 Ct. Cl. 185 (1961), to support this argument. In Murray, the plaintiff was discharged during his fourth enlistment in the military for participation in homosexual 'acts committed during earlier enlistments. The regulation governing removals confined discharge 'actions to misconduct which occurred during the current term of enlistment. Since the plaintiff was discharged honorably after his first three enlistments, he could be discharged under conditions less than honorable only for improper conduct subsequent to the fourth enlistment. Consequently, his discharge was improper.

Plaintiff Schlegel urges an extension of the Murray reasoning to the instant case. It is uncontroverted that the plaintiff’s agreement to serve another three years was made at a time when his superiors considered him a suitable employee. However, the analogy to the Murray case and the principles underlying that decision breaks down under close scrutiny. In the case sub judice, the agreement which the plaintiff characterizes as an employment contract is nothing more than an agreement for transportation. Although plaintiff has not favored us with the entire memorandum upon which he relies, the selected portion of that memorandum which plaintiff quotes reflects that the agreement does not relate to tenure of employment. Additionally, the Murray decision was predicated upon a distinctive regulation which required removal to be based upon misconduct occurring in the current enlistment of the serviceman. There is no similar regulation in the present case. Accordingly, the Army did not abrogate a contractual relationship with the plaintiff by removing him from his position.

In a somewhat related vein, the plaintiff objects to his removal as being untimely in violation of CPR Sl.2~2d (2), which states:

Reasons for the Aotion
^ ❖
*****
(2) The incidents or events cited should be timely in relationship to the action proposed.

The incidents of misconduct cited in the advance Notice of Proposed Removal took place in August 1959, on June 10, 1960, on June 24,1960, and in September 1960. The removal notice was dated June 29,1961, approximately one year subsequent to three of the four instances of alleged misconduct. Although the timeliness of a removal action is an issue of law, we are not persuaded to disagree with the Civil Service Commission. The incidents for which the plaintiff was ultimately removed were unknown to the Army at the time they occurred. Rather, they came to the 'attention of the Army in the course of its investigation to upgrade plaintiff’s security clearance. Since this investigation transpired in the early part of 1961, less than six months elapsed from the time the Army became aware of the plaintiff’s misconduct until the date of the proposed removal notice on June 29, 1961. Considering the entire record, it cannot be said that the removal was untimely in relation to the cited instances of misconduct.

IV

Petitioner next contends that the Army violated one of its regulations by relying on a cross-reference to a document outside the advance notice as a basis for the removal action. The regulation allegedly violated is OPR S1.2d, which reads in pertinent part:

Reasons for the Action
* * * Nor should the advance notice rely on cross references to other documents outside the notice as a basis for the action.
‡ ‡ ‡ ‡ $

The plaintiff asserts that the advance notice relied on a cross-reference to an Army memorandum of March 13, 1952, entitled “Procedure for Handling Cases of Alleged Perversion (Civilian Employees).”

A reading of the advance notice reveals no cross-reference to the Army memorandum of 1952. In fact, the record shows that the memorandum was not even used in preparing the advance notice. Although Army Personnel Officer Eubanks testified that the document stated the “essence of our position” and that it contained guidelines for immoral and indecent conduct, be did not testify that the charges against the plaintiff were drafted in reliance upon the Army memorandum. The record supports the view that the advance notice was drafted upon the exclusive basis of CPE, S1.2 and Sl.3 and that the plaintiff’s removal was grounded solely on these regulations. Furthermore, the advance notice itself contains no reference to any document outside the notice. Thus, not only does the advance notice comply with the literal terms' of CPE Sl.2d, but it also withstands the plaintiff’s expanded interpretation of the regulation that the notice cannot be prepared in reliance upon a document not included in the notice. Even assuming, arguendo, that the plaintiff’s interpretation of the regulation is accurate and that the Army memorandum was used in drafting the removal notice, the result would remain unchanged because the memorandum merely involved procedure (as the title states). Its omission from the removal notice could not affect the plaintiff’s substantive rights.

V

We are urged by the plaintiff to adopt what he terms the “logical extension” of Stanley v. Georgia, 394 U.S. 557 (1969). Tn that case, the Supreme Court declined to uphold the validity of a statute which imposed criminal sanctions for the mere possession of obscene matter in one’s private home. The instant case is clearly distinguishable from the Stanley decision, which involved a criminal prosecution for violating a penal statute. The plaintiff in the present suit was not prosecuted but was merely removed from his position with the Army. The criminally accused stands in the reach of more constitutional protections than does the civil .service employee who is being removed for misconduct. Additionally, the government has not prohibited Mr. Schlegel from committing homesexual acts. Nor has it imposed a criminal penalty upon him for having done so. Eather, the Army has discharged the plaintiff from his position for misconduct in order to enhance the efficiency of the Transportation Office. We cannot adopt the urged extension of Stanley v. Georgia, supra.

vi

Finally, the plaintiff contends that tbe Army violated CPR E2.1-3a (March 1956), which provides in part:

* * * [E]mployees will be treated fairly in all respects * * *.

Specifically, the plaintiff complains that the hearing accorded him subsequent to his removal was patently unfair in that he was denied the right of confrontation and cross-examination of his accusers. Only Harold Eubanks testified at the Civil Service Commission hearing, and this destroyed the plaintiff’s strategy for eliciting favorable testimony from several witnesses which he expected the Army to produce in response to his requests.

We cannot conclude that the plaintiff was mistreated at this level. Since the Civil Service Commission has no subpoena power, an employee desiring the presence of witnesses at his hearing has the initial burden of making timely and sufficient efforts to obtain their presence or of showing that he was justified in failing to make such 'attempts. Williams v. Zuckert, 371 U.S. 531 (1963), 372 U.S. 765 (1963); Begendorf v. United States, 169 Ct. Cl. 293, 340 F. 2d 362 (1965). Plaintiff has failed to carry this burden. On September 8, 1961, only three working days prior to the hearing, he wrote Colonel Sams, requesting that Sams appear and that he arrange for the attendance of the three marines. Colonel Sams, of course, had no power over the marines since he was an Army Officer. No further action was taken by the plaintiff to secure the q>resence of these witnesses. Although he asserts that he did not know the location of the marines, the plaintiff admits that he did not request information or assistance from the local marine commandant. His belated •attempt to obtain the presence of the desired witnesses fell far short of the efforts required by Begendorf and Zuckert, supra. Moreover, one of the marines testified 'at the trial before Commissioner Stone along with three Army officers whose presence the plaintiff requested at the Civil Service Commission hearing. As previously indicated, we can consider this de novo evidence in conjunction with the administrative record in determining whether the plaintiff was treated fairly. Brown v. United States, supra.

VII

From a careful review of the entire record, it is concluded that the plaintiff’s removal was not the result of arbitrary or capricious action. Rather, it was carried out in accordance with applicable Army regulations. Relief is denied, judgment is entered for the defendant, and the petition is dismissed.

Davis, Judge,

concurring:

I join in the result, and fully in all of the opinion except Part II. As for that portion, I agree with most of what the court says hut, in the light of the discussion in Norton v. Macy, 417 F. 2d 1161 (C.A.D.C., No. 21,265, decided July 1, 1969), I would confine our present 'holding to the particular circumstances of this case. The significant factors here are: (a) the nature of plaintiff’s conduct, which was explicit and overt and (at least as to one charge) appears to have violated the criminal law of Hawaii (see Sec. 768-71 — sodomy); (b) the recency and repeated nature of that conduct, and plaintiff’s 'defense of it (thus indicating that he would continue in that course) ; (e) the security requirements of plaintiff’s office and position (in that connection it is not irrelevant that plaintiff’s acts were committed with military personnel); and (d) the testimony that retention of plaintiff would negatively affect the operation of the office. These factors were not present in Norton, as the District of Columbia Circuit saw that case.

Nichols, Judge,

concurring:

I join in the decision and in the court’s opinion except that I do not agree with the court’s discussion of the recent case of Norton v. Macy, 417 F. 2d 1161 (No. 21,265, decided July 1, 1969, in the D.C. Circuit). Tlie court sets forth factual differences between that case and this, and could have referred to further differences, as I will show. Still, the D.C. panel concedes in the most candid manner that the Civil Service Commission could have found that Norton’s conduct was immoral, indecent, and notoriously disgraceful. Thus, I am not sure that the panel would not have reached the same result if Norton had been shown to have done exactly what Schlegel did in the case before us. If the gravamen of the offense was, as I believe it was, exposing the employing agency to disrepute, Norton in making homosexual advances to a total stranger, under the observation of two policemen, could have been deemed more heedless of his employer’s reputation than Schlegel was.

The reasoning of the panel (except, of course, for Judge Tamm who published an able dissent) is I believe as follows: a veteran with career status may not be removed from Federal employment except for a cause that will further the efficiency of the service; homosexual behavior off duty does not normally harm the employing agency except by occasioning embarrassment to it; the avoidance of embarrassment has no logical relationship to efficiency; therefore, such a veteran is privileged, so far as his employer is concerned, to engage in homosexual behavior in his off duty hours as much as he pleases. The court was careful to make it clear its decision would not be precedent when a nexus with efficiency appeared, other than agency embarrassment.

In this context the word “embarrassment” may appear to some the understatement of 1969. The belief and policy of the executive branch, as it emerges clearly in the record now before us, and in the numberless other cases involving homosexuals that stain the pages of our reports, is that the presence of known homosexuals in an executive agency will bring the agency into hatred, ridicule, and contempt, to the grave detriment of its ability to perform its mission. By denigrating this consideration to mere “embarrassment” the court in effect says that public relations are none of an agency’s proper concern, not being related to “efficiency.”

It may well be that defendant’s fear of bad public relations is exaggerated, and that the Government’s handling of its obviously large homosexual problem is not of the wisest. I do not pretend to know. The point is, as Judge Tamm says, the choice as to what measures are required to produce efficiency is properly one for the' executive branch to make. The Norton case, as he observes, represents another taking over by the all-wise judiciary of an area of decision hitherto reserved for the presumptively feeble intellects of the legislative and executive branches.

An agency is not necessarily wrong if it deems that good public relations favor efficiency, and that bad ones detract from it. I believe that myself. Nor is it absurd to fear that a public which loses respect for the employees of an agency will lose respect for the agency itself. It follows that the agency has (or, up to now, had) >a right to require its employees to refrain from off duty behavior of kinds the public will regard (however obtusely) as scandalous and disgraceful. Schlegel knew his agency had such a requirement and he deliberately elected to 'disobey it.

In the instant case, however, the “embarrassment,” though in my view sufficient, is not the sole nexus between the removal of plaintiff and the efficiency of the service. The record shows that many “top secret” papers were passing through his office. How this came about in a mundane transportation service in time of peace is not explained in the record, but presumably the mere travel routing of some military personnel might, if known, imperil their missions. Plaintiff had a “secret” clearance, Which was not high enough, and he had to be barred from participating in much of the office work. The request on his behalf for a “top secret” clearance was what led to his downfall. The disclosures in the security investigation would no doubt have caused the lifting of even the “secret” clearance had plaintiff not been fired altogether. Though the point is not spelled out in the record, it seems too obvious to require proof that the usefulness of a civilian employed in a military department is gravely impaired if •he cannot be cleared for security. When this impairment is due to the employee’s own misconduct, 'dismissal does not seem an unreasonable or excessive response. The Norton court noted the absence of any security problem in Norton’s case and it would seem it might well regard the difference in BehlegeVs as crucial.

'Furthermore, ‘Schlegel is shown by the evidence to have been engaged in corrupting young soldiers who might have been deemed bo be under the parental care of their Service. Their usefulness was impaired, too, by plaintiff’s acts.

FINDINGS or Fact

The court, having considered the evidence and the briefs and arguments of counsel, makes findings of fact as follows:

1. Plaintiff is an honorably discharged veteran, i.e., a Veterans’ Preference Eligible, entitled to the benefits and protections of the Veterans’ Preference Act of 1944, 58 Stab. 887, as amended, 5 T7.S.C. §§ 851 et seq.

2. Immediately prior to July 31, 1961, plaintiff was employed as a civilian with the Department of the Army, and served as Administrative Officer (Program and Budget), a GS-12 classified position in the Civil Service, at Headquarters, Office of the Transportation Officer (sometimes referred to as the Office of Transportation), Pacific Theater, in Hawaii.

3. As of July 31, 1961, plaintiff had over 11 years of creditable Federal Service, and during this period he received a number of favorable citations and honors for his work.

4. (a) At all times while serving as Administrative Officer, plaintiff received performance ratings of satisfactory or better. In an official annual performance rating given plaintiff under date of May 28, 1961, the rating officer stated:

“Mr. Schlegel is the ranking civilian in the Program and Budget Office. He acts as chief, in addition to his duties as Budget Officer, during the official absences, sometimes prolonged, of the military chief. _
_ “Mr. Schlegel is unusually conscientious in attention to his duties. And provides staff supervision in a manner to create maximum productivity. He is quick to make recommendations for reallocation of staff effort throughout the Transportation Office to permit assimilation of new responsibilities and workload.
“He is alert to opportunities to increase his professional competence. He is a member of the local chapter, Armed Forces Management Association, and has been sought for office in that organization. He has recently completed residence attendance at the Financial Management-Budgeting course of the US Army Finance School, receiving a high grade in worldwide competition. He is presently enrolled in a correspondence course, and intends to expand upon this auxiliary training.
“In terms of longevity in his particular position, Mr. Schlegel is the senior civilian employee in the Transportation Office. Because of this continuous service he is able to provide expert counsel to the specialists in the various Transportation fields represented in the office. His official duties cross over into all areas affected by the Annual Funding Program. He is aggressive in promoting TC funding interest, and is quick to grasp complicated financing implications in new or expanded projects. He works without stint to complete office assignments, and is rated a highly satisfactory employee. If Mr. Schlegel continues to improve at the present rate he should attain an outstanding rating on the next performance evaluation.”

(•b) On an Employee Appraisal form for Comptroller career fields, dated May 31, 1961, plaintiff’s official supervisor started in substance that plaintiff had an exceptionally thorough knowledge of his work; prepared clear, accurate records and reports; gave clear and understandable explanations; produced above-average quantity of work of the highest quality ; was highly flexible and could be used effectively on several different types of work; was exceptionally well-liked and respected; started constructive projects and got them done; was occasionally absent or late; was well suited for the type work in which he was then engaged; had potential beyond his job; was imaginative and bold, grasped the big picture; and definitely possessed top management potential. Specific plans for further development of plaintiff were stated to be “[consideration for a Secretary of the Army Eesearch and Study Fellowship, or consideration for attendance at the Army Comptrollership School, Syracuse University.”

5. The Transportation Office of the Army, Pacific Command, was a special staff office. Its function related to policy, guidance and general management of Army transportation in the Pacific area and, in some cases, involved transportation for all other military branches. The office had a staff of 32 persons, composed of commissioned officers, enlisted men, and civilians.

6. Sometime during the early part of 1961, plaintiff’s superiors determined that plaintiff’s security clearance should be upgraded from “secret” to “top secret” because over 50 percent of the material in the office was classified as “secret or higher,” and such a clearance would permit plaintiff to relieve the duty officers who had complete access to the files and promote a smoother operation in the office. Consequently, a routine request for such clearance was instituted by Colonel Jean P. Sams, the Commanding Officer, i.e., the Transportation Officer.

7. In response to this request, Colonel Sams was orally notified by the Army investigative authority (Army Intelligence and/or Criminal Investigation Division) that plaintiff was then under investigation for homosexual activity and, therefore, it was essential clearance be withheld. No action was taken at the time, since Colonel Sams felt that additional information was needed before he could determine what action, if any, was warranted. Plaintiff had been an efficient employee, and it appears that neither Colonel Sams nor anyone else in the office had knowledge of his social life.

8. Sometime thereafter, Colonel Sams received written investigative reports which formed the basis of plaintiff’s removal. In this connection, it will be helpful to a better understanding of many of the findings, infra, to state at this point that on March 13, 1952, the Department of the Army issued a memorandum entitled “Procedure for Handling Cases of Alleged Perversion” (Civilian Employees). The memorandum reads in pertinent part:

1. The handling of cases of alleged perversion on the part of civilian employees of the Department will be performed as set forth herein.
2. As a basic principle, acts of perversion are regarded primarily as a matter of lack of qualification for Government employment. Only if an employee’s discharge through the procedure set forth herein is not possible and the employee occupies a sensitive position will the case be handled as a security matter.
3. Acts of perversion are defined, for the purpose of this letter, as abnormal sexual acts, including but not limited to homosexuality.
4. At this time the primary source of information concerning such alleged actions are the arrest records received by the Department from the Federal Bureau of Investigation, through the U.S. Civil Service Commission. It is stressed that in many cases the record is one of arrest only, and due regard must be taken as to the limited nature of this information, pending the securing of additional data.
5. The appropriate processing of these cases is primarily a Command responsibility. Since, however, the ■basis for action is the suitability or unsuitability of the employee for employment based on character qualifications, the civilian personnel officer is regarded as the appropriate staff officer concerned.
% # # # Jfc
6. Concerning the specific procedure on the part of the employing office, experience to date has indicated several courses of action are feasible, depending on the individual concerned, collateral information available, or the need to secure additional information.
a. It will generally be desirable to conduct an investigation and subsequently to discuss the situation with the employee. Action as to resignation, discharge, or retention rests on the assessment of the facts. * * *
b. In the processing of resignation, there will be shown on Form SF-50, “Notification of Personnel Action” under “Remarks” the following notation, “Resignation pending investigation (suitability).” * * *

9. (a) On June 29, 1961, plaintiff was served with an advance Notice of Proposed Removal letter issued by Colonel Sams under the same date which reads in pertinent part:

1. You are hereby notified that it is proposed to effect your removal from your position as Administrative Officer (Program and Budget), GS-341-12, Office of the Transportation Officer, United States Army, Pacific, APO 958, on 31 July 1961, for immoral and indecent conduct.
2. Specifically, the following charges are alleged against you in support of the proposed action:
a. That, in or about August 1959, at your home in Honolulu, Hawaii, you did commit immoral and indecent acts with Francis E. Deller, by fondling his penis and asking him if he would “give in” to you.
b. That, on or about 10 June 1960, at 2052 Mott-Smith Drive, Honolulu, Hawaii, you did commit immoral and indecent acts with Lance Corporal Harry Hoyt Jordan, Jr, by fondling his penis, masturbating him, and asking him to play with your private pares.
c. That, on or about 24 June 1960, at 2052 Mott-Smith Drive, Honolulu, Hawaii, you did commit immoral and. indecent acts with Lance Corporal Harry Hoyt Jordan, Jr, by unfastening his underwear, fondling his penis, masturbating him until he reached a climax, attempting to commit anal sodomy with him, and forcing yourself upon him when he resisted your advances, thereby tearing his underwear.
d. That, in or about September 1960, at your apartment in Honolulu, Hawaii, you did commit immoral and indecent acts with Lance Corporal Freddie L. Eiddles, by undressing him, fondling his private parts, and masturbating him until he experienced an orgasm.
3. Your conduct as charged in paragraph 2 above is of such a nature that it reflects discredit upon this installation, the Department of the Army, and the ethical stature of Federal employees. This conduct, specifically as it pertains to your sexual relations with other men, defiles our social standards, and this command has an obligation to protect its employees against associations that might be detrimental to their standards of moral ethics.
4. You have the right to answer this notice of proposed action personally, in writing, or both, to Colonel Jean P. Sams, Transportation Officer, Hq USAEPAC, APO 958, or in the event of my absence to my delegated representative, Colonel E. P. Ketcham, Jr, Transportation Office,. Hq USAEPAC, APO 958, and to submit any and all evidence, including witnesses and affidavits you may desire within ten working days from the date of receipt of this notice. Your right of personal reply does not contemplate a hearing with testimony from witnesses for both sides of the controversy; rather it is am, opportunity for yowr personal refutation of this advance notice. If you desire to reply m person, you will be afforded an opportunity to be heard and you may be accompanied by a representative if you so desire. A written record will be made of your personal reply and your signature requested to indicate that you agree with the accuracy of the record. [Emphasis supplied.]
5. Mr. Henry L. Eadi of the Office of Civilian Personnel, Building S-330, Ordnance Area, Fort Shatter, will make such pertinent regulations and records available as you may require for preparation of your reply.

(b). The notice letter was based upon affidavits (signed statements) and information furnished to investigation authorities by the three Marine Corps enlisted men mentioned in said notice, namely, Francis E. Deller, Harry Hoyt Jordan, Jr., and Freddie L. Biddies, all of whom were stationed in Hawaii during the years 1958 to 1961. These individuals, independently and at different times, described their association and experiences with plaintiff which apparently followed substantially the same pattern. It appears from the statements by the said Marines, which were considered during the administrative proceedings, that plaintiff developed a friendly social relationship with them which included having drinks together and double-dating with their respective girl friends. At one time or another, all of them worked part-time for plaintiff at a car rental agency operated by him. They were invited to plaintiff’s residence or elsewhere for social gatherings on many occasions and at times they slept at his home. Sooner or later plaintiff made one or more advances toward each Marine involved, commenced fondling their private parts, and suggested reciprocal acts by them. Plaintiff also requested them to participate in various forms of homosexual acts overtly initiated by him which proposals were sometimes rejected.

10. Credible testimony was presented at the trial by Robert D. Steel, a Special Agent for the Office of Naval Intelligence, assigned to the Naval Investigative Service Office, San Diego, California, to the effect that a request was received from the officer in charge of the San Diego office of the Army Counterintelligence Corps (Gr-2) for investigative assistance regarding alleged homosexual activities on the part of plaintiff with Marines Riddles and J ordan, mentioned above; that as a consequence, said Marines were questioned and voluntarily signed statements obtained from both of them early in 1961; that during the interrogation of Jordan, he stated in his (Mr. Steel’s) presence that on one occasion during the early summer of 1960, plaintiff expressed the intention of committing a homosexual act on him (Jordan); and that when he rejected plaintiff’s proposal, the latter became angry, and tore his (Jordan’s) shivies while forcibly attempting to remove this piece of underclothing from him, and then asked “What has Carol [Jordan’s girl friend] got that I don’t have?”

11. (a) Marine Riddles testified at the trial that all of the information contained in the affidavit executed by him was the truth and that it was given voluntarily. As best it can be determined on the basis of credible testimony presented at the trial by some of the military investigators who participated in the interrogation of Riddles, J ordan, and Deller, and a review of the Administrative Record, it appears that all of the affidavits secured from said Marines relating to the acts alleged in the advance notice of proposed removal sent to plaintiff were voluntarily furnished by them; that no threats or promises were made in connection therewith; that the affidavits in question were secured through normal channels and procedures; that each of them was advised of his Constitutional rights under the Fifth Amendment to the United States Constitution and/or Article 31(b) of the Uniform Code of Military Justice prior to making a statement.

(b) While the point is arguable, it would not appear that any of the Marines stood to gain any benefits by executing their respective affidavits. The military had no control over Marine Deller when he supplied the information contained in the affidavit executed by -him, since by that time he already had been discharged from the service for participating in homosexual acts. According to acceptable testimony presented at the trial, Marines Biddles and Jordan, who were on active duty at the time they executed their affidavits, could have remained in the service if they had not admitted their experiences with plaintiff. Accordingly, it is reasonably clear that these two individuals stood to lose rather than gain by furnishing the type of affidavits executed by them.

12. Plaintiff responded to the June 29, 1961 notice of proposed removal letter by directing a letter to the Office of Civilian Personnel, Headquarters, U.S. Army, Hawaii, through the Transportation Officer, under date of July 3, 1961, which reads in pertinent part:

2. My counsel advises that before we can attempt an answer to subject letter, we shall need specific citations, in writing, to the regulation or regulations under which the removal action is proposed. Bequest we be furnished such a listing and copies of all pertinent regulations.
3. Becogmzing that the above request might entail some delay, request the ten-day period permitted to prepare an answer begin on the date above request is honored.

13. In reply to plaintiff’s July 3, 1961 letter request, a letter bearing the same date, a first endorsement by the Transportation Officer, and a second endorsement by the Deputy Director of Civilian Personnel, was sent to plaintiff which reads in pertinent part:

1st Ind
* * ‡ *
2. Under the provisions of Department of the Army Civilian Personnel Begulations S1.2-2e(3), an extension to close of business 19 July 1961 is granted for reply to Notice of Proposed Removal dated 29 June 1961.
* * * * *
2nd Ind
:¡: ‡ # # #
Inclosed for your reference are copies of Department of the Army Civilian Personnel Regulations C2 dated March 1961 and SI dated February 1961 with Change 1 dated 19 May 1961. Request acknowledgement of receipt of above cited regulations by indorsement hereon.

14. (a) The published applicable Army Regulations relating to dismissal upon charges are CPR S1.2, Sl.3 (February 1961), and CPR S1.2 (March 1961), copies of which were forwarded to plaintiff (finding 13). CPR Sl.2 states in pertinent part:

AdvaNCb Notice
2-2. Advance notices are required in connection with all actions initiated by an appointing officer which adversely affect an individual’s employment status. The purpose of such notice is to provide an explanation of the action proposed, the reasons therefor, and an opportunity for the employee to reply and have his reply considered before the action is effected. The advance notice will be an individually prepared letter. Locally developed forms, form letters, or copies of Standard Form 52 (Request for Personnel Action) will not be used to inform an employee of a proposed adverse action. The advance notice will contain the information outlined below.
Purpose of Notice
a. The purpose of the notice must be stated and the action proposed must be clearly identified, using one of the specific terms set forth in these regulations. It is not sufficient to state that it is proposed to take “suitable,” “disciplinary,” or “corrective” action since such indefinite statements may mislead the employee into believing that no drastic action is contemplated.
Relationship of Action to Efficiency of the Service
b. A requirement of both the Lloyd-LaFollette and Veterans’ Preference Acts is that adverse actions will be taken only for such, canse as will promote the efficiency of the service. Therefore, the advance notice should show the manner in which the proposed action is related either to the employee’s duty performance or to the carrying out of the mission of the installation.
* * * * *
Reasons for the Action
d. ***
(2) The incidents or events cited should be timely in relationship to the action proposed.
Opportunity for Reply
e. The advance notice must state that the employee has a right to reply and the period of time in which such reply is to be made. Where 30 days notice is required, ten working days will be allowed for preparation of a reply; where 10 working days notice is required, three working days will be allowed for preparation of a reply; where seven calendar days notice is required, two working days will be allowed for preparation of a reply; in any case at least 24 hours will be allowed. The notice must also state the name and address of the person to whom the reply is to be made; that the reply may be made personally and in writing; that affidavits and witnesses may be furnished in support thereof; and that the reply will be considered before final decision is made.
(1) The phrase “personally and in writing” means that the employee can answer personally if he so chooses, in writing, or both. The right of personal reply does not contemplate a hearing with testimony from witnesses for both sides of the controversy; rather it is an opportunity for personal refutation of the advance notice. When an employee expresses a desire to reply in person, he will be afforded an opportunity to be heard and may be accompanied by a representative if he so desires. In the event of a personal reply, a written record will be made and, if possible, the signature of the employee obtained as an indication that he agrees with the accuracy of the record.

CPE Sl.3 relates to adverse actions initiated by the appointing officer, and reads in pertinent part:

General
Coverage
8-1. a. * * *
Determining Action to be Taken
b. In some disciplinary cases (see CPE C2), a statute prescribes the penalty for a given offense and, in such cases, it is necessary only to establish that the particular offense was committed in order to determine the action to be taken. In other cases, arrest records for current employees, received in the Headquarters of the Department, are transmitted to the employing installation with instructions as to action to be taken. Such instructions will be observed even though they may be at variance with certain provision of the regulations. In most cases, however, determination as to the action to be taken is left to the discretion of the appointing officer. The following will be observed in the exercise of this discretion.
(1) Like penalties must be imposed for like offenses. In this connection, there is provided in the appendix a table of penalties which the Department views as reasonable for various offenses. While the table is provided as a guide, experience with appeals indicates that appointing officers should, in processing adverse actions, explain the reasons for any substantial deviation from the suggested penalties. Where an offense is not listed in the table, appointing officers should, through comparison with those listed, determine a reasonable penalty.
(2) In determining the action to be proposed or taken it should be established whether the employee knew, or could reasonably be expected to know, what standards of conduct or performance were expected of him.
(3) Before proceeding with an action affecting an employee’s employment or pay status, consideration should be given to the possibility of correcting the situation by counseling or training the employee, or through utilization of a reassignment or an oral or written reprimand. In many instances, such action will remedy the situation and, at the same time, will save the cost of replacement or work disruption which attends the actions of removal or suspension.
* ^ ❖ ❖ *
RESPONSIBILITIES
8-2. * * *
*****
Responsibility for Final Decision
o. The civilian personnel officer and the appropriate supervisory official will jointly consider the employee’s reply to the advance notice and determine the appropriate action to be taken (see par. 2-4). In the event of disagreement, all facts in the case will be referred to the commanding officer for final decision. The notice of decision (see par. 2-5) will be prepared in the civilian personnel office for the signature of the 'appointing officer or an individual specifically designated to act for him.
Removal
^‡ ‡
# # ‡ & #
Guidelines
c. * * *
% iii ^ * #
(2) Misconduct while off duty does not, in itself, serve as a basis for removal. There must be a showing that the misconduct affected the employee’s performance on the job, or the specific manner in which the misconduct reflected discredit upon the Department of the Army or the employing installation, or the manner in which the misconduct was otherwise detrimental to the efficiency of the service.

(b) The regulations partially quoted in (a) above, were forwarded to plaintiff in their entirety, and they were not cited or marked in any way to indicate the specific section or sections of the regulations upon which the Army was relying as the basis for plaintiff’s removal. The record does not disclose, nor has plaintiff shown, any requirement that the Army mark, underline, emphasize, or otherwise refer to particular portions of regulations applicable to a proposed removal action of the nature involved herein.

(c) A copy of the March 13,1952 Army memorandum outlining the procedure to be followed in handling cases of this kind (partly quoted in finding 8, supra) was not enclosed with the regulations mentioned in (a) and (b) above, nor furnished to plaintiff until September 13,1961. (See finding 21(d) infra.)

15. In reply to the June 29, 1961 advance notice of proposed removal, plaintiff submitted to the Transportation Officer a letter dated July 19, 1961, together with nine attachments thereto, in which plaintiff neither admitted nor denied the contentions set forth in said notice. The letter reads as follows:

This will be my reply to your letter, dated 29 June 1961, giving notice of proposed removal from my position under your supervision.
Though requested, the lack of any reference to the specific section or sections of the regulations under which my removal is sought has made it difficult, if not impossible, to present a sufficient reply to the charges made.
Your letter speaks of “immoral and indecent conduct” and alludes to “sexual relations with other men,” so my only avenue of rebuttal seemed to be to prepare a general statement on the subject of homosexuality, and to try to relate your charges to that context.
I contend, first, that the issue of individual liberty involved in the attempted restriction of homosexual conduct is a serious and delicate one. Sanctions represent interference with the sexual habits of adult members of society. These habits are means of expressing a “fundamental, vital impulse.”
I contend, second, that any legal or regulatory interference in the sexual activities of two mature persons, carried on by agreement, in privacy, is invasion of the basic rights of the individual.
Concepts of morality and decency are to be individually determined, according to the dictates of one’s own conscience. This is the “sacred realm of privacy for every man.. . . where he makes his choice and decisions, fashions his character and directs his desires; a realm of his own essential rights and liberties, including, in the providence of God, liberty to go to the devil.”
I accept the moral responsibility to account to. my God for my own conduct. I accept the moral responsibility to account to my fellow men for any conduct which causes them “demonstrable harm.” I ask only that a spirit of tolerance prevail in the exchange.
This “spirit of tolerance cannot be honed fine. It is a habit of empathy which we must persist in or abandon completely. And we dare not abandon it, for tolerance is not merely a result of freedom, it is essential to freedom’s ideal.”
My final contention is that no facts are set forth in the notice of proposed removal to support the conclusion that any alleged conduct of mine contributed detrimentally to the efficiency of the civil service of the United States. I have set out in considerable detail the reasons why the alleged conduct, appearing to be from the description, private consensual homosexual behavior, is not subject to the regulations under which my removal is proposed and, further, that there is not proof that the efficiency of the civil service of the United States was even remotely concerned therewith.
All attachments hereto are made a part hereof by this reference.
9 Attachments
1. Introduction
2. Definition
3. Homosexuality and Judeo-Ohristian Moral Tradi(tion
4. Incidence as an Argument for Individualized Morality
5. Regulatory Basis for the Removal Action
6. Privacy: An Essential Element of Liberty
1. Private Consensual Homosexual Behavior
8. Specific Rebuttal
9. Performance

It will be noted that plaintiff did not request a personal interview or hearing.

The attachments, identified above, comprised a 33-page document which, for want of any better term, may be called a “thesis.” In brief summary, using plaintiff’s own words, the letter and attachments

defended the right of all citizens to make their own decisions on the morality of sexual behavior and claimed that there was no demonstrable relevance of adult, private, consenting sexual behavior to Federal employment. More particularly, plaintiff intended to put forth his conviction that morality is a matter of personal opinion and individual religious belief, immune from trespass by the Federal government under the First Amendment guarantees; that morality is a matter in which enforced conformity to a majority view and practice is as odious as in political matters; that morality is a matter in which the private expression of personal beliefs can bear no possible relevance to eligibility for any employment.

Plaintiff contended throughout the administrative proceedings, and testified at the trial in this case, that neither he nor his attorney knew the specific regulations or sections thereof on which the Army based its charges against him and that-therefore, he was not in a position to present a sufficient reply to the charges. It is clear from plaintiff’s above-quoted statement, a reading of the advance notice of proposed removal letter in context with the applicable regulations in question, and a review of the record considered as a whole, that said notice letter was sufficiently specific to apprise plaintiff of the charges to be met; that he understood the essential nature of such charges well enough to deny them which he failed to do during the administrative proceedings; and that throughout such proceedings and until a short time before the trial of this case, plaintiff took the position that he, as well as other individuals in general, had a right to engage in the kind of acts underlying the charges leading to his removal.

16. (a) The Army issued its decision to remove plaintiff effective July 31, 1961, in a letter entitled “Notice of Decision,” dated July 27, 1961, and signed by the Director of Civilian Personnel. The letter reads in pertinent part:

1. This will refer to the letter to you dated 29 June 1961, proposing your removal based upon charges specified therein, numbered 2a through 2d. After careful consideration of these charges and your written reply thereto dated 19 July 1961, it has been decided that these charges numbered 2a through 2d which are supported by substantial evidence, are sustained and warrant your removal. Accordingly, you will be removed effective 31 July 1961.
2. Since you will have completed only approximately five (5) months of your current transportation agreement, executed by you on 9 November 1960 and which became effective 20 February 1961, your date of return to Hawaii from reemployment leave, you are not eligible for return transportation at government expense to your actual residence. Such travel must be at your own expense. In addition, you will be required to reimburse the TJ.S. Government for all expenses incurred by the government incident to your return travel from reemployment leave from Lewisburg, Pennsylvania.. However, shipment of your household goods to Lewisburg, Pennsylvania, will be authorized since you did complete your minimum period of service.
3. As a veteran preference employee, you have a right under Section 14 of the Veterans’ Preference Act to appeal this action to the Manager, Branch Office, 12 U.S. Civil Service Region, Federal Building, Honolulu, Hawaii. In order to be considered, your appeal must (a) be in writing, (b) set forth your reasons for contesting the removal, with offer of proof and such pertinent documents as you are able to submit, and (c) be submitted no later than ten calendar days after the action becomes effective.

(b) On the same date, the Director of Civilian Personnel approved and signed a Standard Form 50, entitled “Notification of Personnel Action,” effecting plaintiff’s removal. Block number 7, captioned “Civil Service or Other Legal Authority” (for plaintiff’s removal), in said form was left blank. Block 19 therein, entitled “Remarks,” states in part: “Separations: Show reasons below, as required.” Underneath the foregoing appear some letter symbols and the typed words “For immoral and indecent conduct.”

17. By letter dated August 9,1961, plaintiff appealed his removal to the 12th Regional Office of the United States Civil Service Commission at Honolulu, Hawaii. In his letter, plaintiff listed four principal points as the basis of his appeal which are summarized below:

(1) The adverse action taken against him by the agency, i.e., the Army, did not promote the efficiency of the service under Section 14 of the Veterans’ Preference Act.

(2) The advance notice of proposed removal did not state “any and all reasons, specifically and in detail,” for such action. (In what apparently was intended as support for the foregoing propositions plaintiff stated as follows:

“In determining the action to be proposed or taken it should be established whether the employee knew, or could reasonably be expected to know, what standards of conduct or performance were expected of him ... an executive agency must be rigorously held to the standards by which it professes its action to be judged . . . any removal action demands the exercise of responsible judgment so that an employee will not be penalized out of Kortion to the character of the offense. This is particy true in the case of a career employee with a previous record of completely satisfactory service ... I submit that nothing has ever been officially publicized by the Department of the Army establishing that this particular alleged conduct bore a direct relationship to the performance of official duty; I submit, further, that this was the reason why there could be no compliance with my request for specific citations; and, therefore, the reasons given for my removal cannot stand the judicial test of legality: ‘Being sufficiently definite to state in what respect or for what reason efficiency of the service would be promoted’ by the removal.”) []

(3) The incidents as alleged were not timely to the action taken by the agency.

(4) The decision of the agency “was arbitrary, capricious or so clearly erroneous as to imply bad faith.”

Plaintiff requested in his appeal letter that he be given a hearing and that 27 named military and civilian staff members be present for call as witnesses on Ms behalf. No request was made that the three Marines identified in the June 29, 1961 notice of proposed removal be called as witnesses.

The letter made no reference as to his innocence or guilt with respect to the assertedly immoral incidents and acts alleged as the 'basis for plaintiff’s removal.

18. In support of his August 9, 1961 appeal, plaintiff, on August 24, 1961, submitted to the 12th United States Civil Service Regional Office, a seven-page affidavit which was an admixture of a brief and request, wherein he made various statements, contentions, arguments, and requests, including, among others, that (1) statements be obtained from persons containing answers to certain questions posed by him, (2) he be given a hearing, and (8) the Commission have present at such hearing for examination under oath, the following individuals:

Colonel Jean P. Sams, the Transportation Officer; Lt. Col. Ben E. Perry, Chief, Program and Budget Office; and Capt. J. W. Mays, Clfief, Administrative Office, all of whom were in the Transportation Office; the Director of Civilian Personnel ; and the three Marines mentioned in the June 29,1961 notice of proposed removal. The following documents were attached to plaintiff’s affidavit: copies of his Performance Appraisals for the periods 1958-1959, 1959-1960, and 196,0-1961; 14 signed affidavits from fellow employees of plaintiff; and an unsigned affidavit which had been prepared for the signature of Colonel Jean P. Sams who had refused to execute the same. In brief, the signed affidavits cite the fact that plaintiff was an efficient employee and describe his activities in the office. None of plaintiff’s co-workers knew about his conduct outside of office hours.

19. On September 6, 19.61, the Manager of the 12th U.S. Civil Service Commission Regional Office issued a “Notice of Hearing” in which a hearing was scheduled on September 13, 1961. Plaintiff was advised that “Since the Commission does not have the power of subpoena, you must arrange for the appearance of your witnesses.” On the same date a similar notice was sent to Colonel Sams, the Transportation Officer, and in accordance with Section 22.601, Chapter Z1 of the Federal Personnel Manual, his agency was invited to participate in the hearing.

20. By letter dated September 8, 1961, plaintiff, by his attorney, notified Colonel Sams of the hearing scheduled before the Civil Service Commission on September 13,1961; requested that he attend the same and be prepared to give testimony on behalf of plaintiff; and further requested that he (Sams) arrange for the attendance of the Marines named in the June 29,1961 notice of proposed removal, who should be prepared to be cross-examined by plaintiff’s attorney. By separate letters dated September 8,1961, Army Lt. Col. Perry and Captain Mays also were notified of the hearing and requested to attend and be prepared to give testimony on behalf of plaintiff. No other action was taken by or on behalf of plaintiff to secure the presence of the three Marines involved. September 8, 1961, was a Friday, 3 regular working days before the date of the scheduled hearing. During cross-examination at the trial, plaintiff testified to the effect that he did not seek the presence of the three Marines at the hearing, through the Marine Corps Commandant who undis-putably was located in the city, or by writing letters to them, because neither he nor his attorney knew to whom such a request should be sent and did not know where the three Marines were stationed.

21. (a) The hearing before the 12th Civil Service Region was held as scheduled on September 13, 1961. Plaintiff appeared with counsel, and the Army agency was represented by Mr. Harold Eubanks, the Civilian Personnel Director. None of the persons whose attendance had been requested by plaintiff, except Mr. Eubanks, appeared. Obviously, Colonel Sams, as an Army officer, did not have jurisdiction over the three Marines to direct or compel them to attend the hearing. The record does not disclose that he, or any other representative of the Army, made any attempt or effort to arrange through proper Army and/or Marine Corps channels for the three Marines to attend the hearing. Nor is there any showing that Colonel Sams or any other Army personnel was required or authorized to take action of this kind. There is nothing in the record explaining why Colonel Sams, Lt. Col. Perry, and Captain Mays did not make an appearance in compliance with plaintiff’s request. However, the testimony at the hearing clearly indicates that the Civilian Personnel Officer was the person designated to appear as the representative of the Army agency; that prior to the hearing, the latter had received a telephone call from Colonel Sams who inquired whether it was required that he or other representatives from his office attend the hearing as witnesses; that Colonel Sams was informed that this was an optional decision for him to make, whereupon he stated that he would not attend; and that, subsequently, Captain Mays called him and advised that he would not attend the hearing. It is undisputed that all three of the above-named officers were within a reasonable commuting distance from the place where the hearing was held on the date thereof.

(b) The transcript of the hearing reflects that since the Army Staff Officers in the Transportation Office, mentioned in (a), above, were not present, plaintiff’s attorney made an offer of proof which reads in pertinent part:

* * * I would like to make an offer of proof as to what we would prove through Colonel Sams if he had attended at this hearing. The first item would be that Mr. Schlegel’s performance of his duties was efficient and was beneficial to the Classified Civil Service of the United States. Second, that the removal of Mr. Schlegel did not originate from him but was something he was ordered to do by the Army G-2. As to Colonel Ben Perry, who is the Chief of the Program and Budget Office, Transportation Office, we submit that he would testify, if he were here to testify, that the removal of Mr. Schlegel was initiated by Army G-2, that Mr. Schlegel was a competent and efficient employee and that his service contributed to the efficiency of the Classified Civil Service of the United States. Third, that he was, and is, aware of the nature of the charges which have been brought against Mr. Schlegel and that knowing of the nature of the charges, he did not, and would not, find any difficulty in his continuing to work with Mr. Schlegel and that it would not disrupt in any manner the functions of the office, his and/or Mr. Schlegel’s discharge of those functions. As to Captain Mays, he would, we make an offer of proof, that his testimony would be substantially the same as that of Lieutenant Colonel Ben Perry * * *.

The transcript also shows that plaintiff’s attorney indicated a full presentation of plaintiff’s case could not be made by reason of the fact that said officers and the three Marines were not available for examination, and requested that the hearing be reconvened “at any time and place which meets the Regional Director’s convenience” in order to afford plaintiff “the opportunity to examine any of these persons and more particularly to cross-examine Riddles, Jordan and Deller.”

(c) Colonel Sams, Lt. Col. Perry, and Captain Mays appeared as witnesses at the trial of this case and all three of them refuted the offer of proof (quoted in (b), above) by testifying to the effect that while plaintiff had been a competent and efficient employee, in light of the evidence of plaintiff’s conduct outlined in the June 29, 1961 notice of removal letter, they mutually agreed that plaintiff should be discharged, since it was their view that 'his continued presence in the Transportation Office would be detrimental to the Army, reflect discredit on the installation and Colonel Sams as Transportation Officer, have a disruptive and demoralizing effect on the office personnel, and impair plaintiff’s value in the office.

(d) During the hearing, Mr. Eubanks testified that the June 29, 1961 advance notice of proposed removal was prepared in his office and approved by him pursuant to Army regulations, prior to the time it was issued over Colonel Sams’ signature; that the July 27,1961 notice of decision to dismiss plaintiff also was prepared by representatives of his office after they had participated in discussions with Colonel Sams; that both of said notices were drafted in accordance with very precise instructions from the Department of the Army; and that he had reviewed and signed the notice of dismissal removing plaintiff because the decision to sign the Civilian Personnel Record was a Department of Army procedure.

Mr. Eubanks was questioned at length in regard to the standards the Army had applied and the authority therefor, in effecting plaintiff’s removal. Upon being asked to state the source of the standards used by him in giving the reason for plaintiff’s removal as “For immoral and indecent conduct,” Mr. Eubanks stated “Civilian Personnel Regulation S-l,” and be then specifically referred to “CPR S-1.3, Sub-paragraph 3, Removal, of the issue of CPR S-l, dated 16 February 1961.” In response to a question as to where, in the paragraph cited by him, the standards which he applied in characterizing plaintiff’s removal as being for immoral and indecent conduct were set forth, Mr. Eubanks stated: “It would fall most closely under the guidelines of that Section, Subparagraph C, Subparagraph 2,” and he then read said section into the record.

When pressed for citations to regulations or any other source material containing standards as guidelines defining “immoral and indecent conduct,” Mr. Eubanks stated that the regulation, i.e., the “misconduct regulation,” was supplemented by Department of the Army letter dated March 13, 1952 (see finding 8, and footnote 1, supra), a copy of which was forwarded to plaintiff’s attorney on the morning of the hearing, and that a supplemental Civilian Personnel Regulation, “either R-2 or R-l,” covering the “preparation of the civilian personnel actions within the Army which specify the type remarks to be documented on the official personnel action.”

(e) Plaintiff testified at the trial that prior to the hearing he had not seen the March 13,1952 letter, mentioned in (d), above; that no one had ever invited his attention to this document or made reference thereto; that when he first saw the original copy of the letter, it was stamped “Confidential” in red over the top thereof, but that a line had been drawn through this classification, and notations made on the document indicating that it had been declassified for use in his case and downgraded to “eor oeeicial use oktlt.” Defendant implicitly suggests that plaintiff did in fact see or have prior knowledge of the document in question since he had “secret clearance” to “everything” in the office and on occasions had “top secret” authority. The record will not support such a finding. The document was an internal memorandum governing procedures to be followed by Army personnel in performing their duties in the handling of certain types of cases. It is not at all clear from the record that a copy of the document was maintained in the Office of Transportation. On the contrary, there is some inconclusive indication that the document, until declassified, possibly was kept in a security file in the Office of Civilian Personnel to which plaintiff pre-sumedly did not have access. In any event, the record shows that the document was classified “Confidential” until it was declassified on August 81,1961, for use in the administrative proceedings, and it is found that plaintiff was unaware of the existence of the document until the day of the hearing.

(f) Plaintiff introduced a statement at the hearing in which he neither admitted nor denied the charges made against him, and offered an article from the Honolulu AdveRtisek newspaper which described vice (prostitution) allegedly occurring in and around military establishments on Okinawa.

22. In a decision issued on September 28, 1961, over the signature of the Director of the 12th U.S. Civil Service Eegion, the removal action of the Army agency was sustained. The decision summarizes the two main contentions set forth in the fourth and fifth unnumbered paragraphs of plaintiff’s letter of July 19, 1961 (finding 15), replying to the charges in the notice of proposed removal. It was found in the decision that the procedures followed by the Army were in strict accord with Section 14 of the Veterans’ Preference Act. The decision notes that no denial of the acts charged were contained in plaintiff’s reply letter. The decision states in part as follows:

We find no merit in the arguments presented by appellant. We hold that acts of sexual perversion such as were charged in this, case constitute indecent and immoral conduct, disqualifying an employee from further service. Decision to effect disqualification reached by the appointing officer does not constitute mere whim, caprice, prejudice, or passion, but carries out the well established policy that the individual engaging in perverse sexual relations is unsuitable for Federal employment.
In an affidavit executed 24 August 1961 the appellant has contended that his removal was motivated by direction of Army officials other than his superior. Review of the letter of .charges shows that action to effect the removal was initiated by tlie Transportation Officer, Headquarters, United States Army, Pacific, appellant’s superior. Such action was within the authority of the officer initiating the removal and was taken upon grounds that appellant’s conduct constituted sufficient cause for removal. The action of removal was completed by the Director of Civilian Personnel, Headquarters, U.S. Army, Hawaii, who is authorized to take such actions relative to the Department of Army civilian personnel in Hawaii.
*****
On substantive grounds, we find that the action of the agency was truly taken for such cause as will promote the efficiency of the service.

23. Plaintiff appealed from the September 28, 1961 decision of the 12th U.S. Civil Service Region, to the Civil Service Commission’s Board of Appeals and Review, on October 6,1961. As grounds for his appeal, plaintiff asserted that the Army’s removal action violated his rights under the United States Constitution, the Bill of Rights, and the Veterans’ Preference Act, and was in conflict with leading judicial and sociological authorities and thereby violated “basic tenets of present-day enlightened personnel administration.” There was attached to plaintiff’s appeal letter, a document entitled “Memorandum in Support of Appeal,” wherein, for the first time, he asserted a series of procedural errors purportedly committed by the Army and set forth arguments in support of his various contentions. In summary, plaintiff contended, among other things, “[t]he Department of the Army failed to follow its own stated procedures” contained in CPR Sl.3-lb(2) which provides, in substance, that in determining the action to be proposed or taken as to an employee, it should be established whether he knew, or could have reasonably been expected to know, what standards of conduct or performance were expected of him. Plaintiff also contended that “[t]he charge ‘immoral and indecent conduct’ defies definition and is therefore void for vagueness.” In support of the foregoing, plaintiff made a number of arguments and cited various legal decisions.

24. In a letter dated November 27,, 1961, the Board of Appeals and Review requested the Army to answer plaintiff’s allegations of procedural error. On January 24, 1962, the Army replied to the request with a detailed response to each of the procedural errors averred by plaintiff.

25. On January 20, 1962, the Board of Appeals and Review issued a decision affirming the September 28,1961 decision of the 12th U.S. Civil Service Region, sustaining the removal action taken against plaintiff by the Army. The Board’s decision reads in pertinent part:

The Twelfth Region held that the procedural requirements of the law and regulations were met in effecting your removal; and that, on substantive grounds, the action of the agency was taken for such cause as will promote the efficiency of the service.
In your appeal to this Board, you contend that (1) the Department of the Army failed to follow its own stated Írocedures in taking the action against you, (2) the >epartment failed to comply with the provisions of section 868, Title 5, United States Code Annotated, which you state requires that a preference eligible may be removed from the classified civil service of the United States “only (sic) for such cause as will promote the efficiency of such (sic) service,” and the charge “immoral and indecent conduct” has not been proved to constitute a clear and present danger to a substantial interest of Government, (3) the Department did not afford you due process of law, in that you were denied the right to confront and to cross-examine your accusers, and (4) the charge of “immoral and indecent conduct” defies definition and is therefore void for vagueness.
In regard to your first contention noted herein, * * *. After carefully reviewing the entire record in your case, including your allegations and argument in support thereof that certain regulations of the Department were not followed, and the Department’s comments in regard thereto, the Board has found that in taking the adverse action against you the Department did not violate your rights under the cited sections of its regulations.
With respect to the second contention, the Board has found that the removal of an employee on a charge of “immoral and indecent conduct,” when supported by substantial evidence, is a discharge for “such cause as will promote the efficiency of the service” within the meaning of Section 14 of the Veterans’ Preference Act of 1944, as amended, (5 USCA 863). In paragraph 3 of the notice of proposed removal dated June 29,1961, you were notified: “Your conduct as charged in paragraph 2 above is of such a nature that it reflects discredit upon this installation, the Department of the Army, and the ethical stature of Federal employees. This conduct, specifically as it pertains to your sexual relations with other men, defiles our social standards, and this Command has an obligation to protect its employees against associations that might be detrimental to their standards of moral ethics.” While not professing to be a guardian of the public morals, this Board is in agreement with the above statement as it pertains to your former employment with the Department of the Army.
In regard to the third contention, under Section 14 of the Veterans’ Preference Act, a preference eligible has a right to a hearing before an office of the Civil Service Commission. However, the Commission has not been given the power of subpoena in connection with the holding of an administrative hearing under Section 14 and, accordingly, it is discretionary with the employing agency as to what officials or witnesses it may produce at a hearing — or for that matter, as to whether it will be represented at a hearing. * * *
In regard to the fourth contention, the Board has found that the charge of “immoral and indecent conduct,” as supported by specific and detailed specifications thereunder, was not under the circumstances vague or lacking in the specificity and detail required by the law and the Commission’s regulations.
As the result of its consideration of your case, the Board has concluded that the Department of the Army complied with the procedural requirements of Section 14 of the Veterans’ Preference Act and the Commission’s regulations pursuant thereto, Part 22, in effecting your removal. The Board has also found that the charge of “immoral and indecent conduct,” as supported by specifications “a” through “d” of paragraph 2 of the notice of proposed removal dated June 29,1961, is substantiated by the evidence; and that your removal on the basis of the sustained charge and specifications was warranted and effected for such cause as will promote the efficiency of the service within the meaning of Section 14 of the Veterans’ Preference Act. Accordingly, the decision of the Twelfth U.S. Civil Service Region * * * is hereby affirmed.

26. Plaintiff’s petition did not contain a denial of the allegations and charges set forth in the June 29,1961 advance notice of proposed removal. Plaintiff, for the first time, denied these matters in pretrial proceedings conducted in the instant case. He again denied the same while testifying at the trial, but refused to answer questions in regard to the acts charged and involved herein on the ground that it was an invasion of his privacy.

CONCLUSION OR Law

Upon the foregoing findings of fact 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. 
      
       Plaintiff Aid not deny these charges until the trial of this case before Commissioner Stone. See finding 26, mira.
      
     
      
       OPR C2.1 — 3 a. provides: Each employee Is responsible for acquainting himself with the standards of conduct expected of him, and to conduct himself, both on and oil the job, in a manner which will insure that his activities reflect credit on the Federal Government and the Department of the Army.
     
      
       In the Norton case, the court said (p. 10, slip opinion) : “The homosexual conduct of an employee might bear on the efficiency of the service In a number of ways. Because of the potential for blackmail, It might jeopardize the security of classified communications.”
     
      
       Acopy of this memorandum was introduced at the hearing on plaintiff’s appeal from the agency decision to remove him from his position and marked “Hearing Exhibit #5.” A copy of said document, as marked, was received in evidence in the instant proceeding as plaintiff’s Exhibit 18, 1 — 21. At the lower right hand corner of page 1 of this document there appears a typed notation “H. E. EUBANKS, DIR. OF CIV PER'S — 31 Aug 61,” and at the bottom of the same page there is a hand-printed notation “FOR OFFICIAL USE ONLY.” A copy of this memorandum, bearing the same notations shown above, except the hearing exhibit identification number and an additional handwritten notation “classified confidential declassified for this case only” at the upper right hand corner of page 1 thereof, was also received in evidence in this proceeding as plaintiff’s Exhibit 19. Finding 21(d), infra, contains additional details concerning the memorandum and discloses the significance thereof.
     
      
       Copies of the signed statements of Deller, Jordan and Riddles dated January 24, 1961, February 8, 1961, and April 21, 1961, respectively, were received in evidence in the instant proceeding as plaintiff's Exhibit 18 (the administrative record) 1 — 2,1—3, and 1 — 5, respectively, subject to the ruling in paragraph 3, Schedule IX, Part A, attached to the Pretrial Conference Memorandum filed on January 10, 1967. under this ruling, said signed statements were received in evidence as being documents contained within the administrative record, but they were not admitted as proof of the truth of the contents of the documents. During the trial, copies of the statements of Jordan and Deller were marked for identification as defendant’s Exhibits 6 and 8, respectively, offered in evidence, and rejected since neither of these individuals testified at the trial, Jordan being deceased and Deller not being called as a witness. A copy of the statement signed by Riddles who testified at the trial (see finding 11(a), infra), was received in evidence as defendant’s Exhibit 5.
     
      
       As stated In footnote 2, supra, Riddles’ statement was received in evidence, bnt Jordan’s was not admitted.
     
      
      
         See finding 9 (b), footnote 2 thereto, and finding 10.
     
      
       This letter and the attachments thereto were included in the administrative record and it was received in evidence for limited purposes (see Pretrial Conference Memorandum filed January 10, 1987, Schedule II, Part A, p. 3) as plaintiff’s Exhibit 18,1-9.
     
      
       Plaintiff’s submissions during the course of tbe administrative proceedings and the instant case clearly imply that he did not know that the acts with which he was charged violated the standards of conduct that the Army required him to meet. As mentioned in footnote 2, defendant’s Exhibit 8, i.e., the statement of Francis E. Deller, was not admitted in evidence, but was received for limited purposes as a part of the administrative record (plaintiff’s Exhibit 18, 1-2). Although the document is not in the record in the instant case as proof of the truth of the contents thereof, the statements contained therein stood un-refuted by plaintiff when the document was considered by the Army agency and the Civil Service Commission during the administrative proceedings. Therefore, it is considered proper and significant to point out that plaintiff’s position is not supported by the administrative evidence since Deller’s statement reads in part: “[F]inally one night, after having several drinks, I did spend the night with him and we both went to bed in the same bed. When we went to bed Schlegel laid his hand on me and started fondling my penis and asking me if I would “give in” to him. I immediately got out of bed and slept all night on the sofa. * * * Thd next morning he appeared to he rather upset and, ashed, me to never tell anyone about him trying to "make me". He expressed, a fear of losing his fob with the U.8. Army if his homosexual tendencies were known." [Emphasis supplied.]
     
      
       Plaintiff’s affidavit and the attachments thereto were received in evidence as plaintiff’s Exhibit 6, (a) through (r).
     
      
       A copy .ol the transcript was received in evidence in the instant proceeding as plaintiff's Exhibit 10.
     
      
       The regulations cited and/or read into the record by Mr, Eubanks are set forth in finding 14(a), supra.
     
      
       A copy of plaintiff’s appeal letter and attached memorandum was received in evidence as plaintiff’s Exhibit 12 (which is the same as plaintiff's Exhibit 18, 1-23 and 1-24, received as part of the administrative record).
     
      
       Plaintiff's requested finding 13 contains several unnumbered findings involving these contentions and primarily consists of a recital of such contentions with arguments in support thereof, as set forth in plaintiff’s October 6, 1961 memorandum. Some of the proposals in such finding bearing on these same subject matters and certain regulations relating thereto, consist of verbatim copy of the transcript covering questions asked by plaintiff’s attorney, and answers given by Colonel Sams and plaintiff at the trial. The findings proposed on the basis of said memorandum and transcript testimony are intermingled with each other, as well as with argument. In view of the foregoing, plaintiff’s requested findings in question were rejected as not meeting the requirements of Rule 57(c) (1) in a satisfactory manner.
     