ON APPEAL FROM A JUDGMENT OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (Civ. A. No. 76-3326)
Before Hunter, Weis and Sloviter, Circuit Judges.
Joseph Neal, appellant, a member of the United States Marine Corps for more than fourteen years, was denied permission to reenlist. The questions he has presented on appeal are: (1) Whether the actions taken by the Marine Corps and the Navy with respect to Neal's reenlistment request violated their statutory mandates and relevant military regulations and procedures; (2) Whether the administrative determination not to permit Neal to reenlist in the Marine Corps was arbitrary and capricious and without any substantial and reasoned basis in fact; and (3) Whether the procedures followed by the Marine Corps and the Navy violated Neal's due process rights.*fn*
The facts in this case are fully described in the opinion of the district court, and therefore will be summarized only briefly here. See Neal v. Secretary of the Navy, 472 F. Supp. 763, 766-769 (E.D.Pa.1979). Neal originally enlisted in the Marine Corps on May 18, 1960; he reenlisted on November 18, 1964 and on October 24, 1970. He served on active duty including service in Cuba in the early 1960's and two tours of duty in Vietnam. He received numerous decorations for his actions and service in Vietnam,*fn1 and also received the Good Conduct Medal four times for conduct denoting "honesty and faithful service in keeping with the highest traditions of the Marine Corps."
In July 1973, he was promoted to the rank of gunnery sergeant, and in February 1974, he was appointed to recruiting duty, a selection which demonstrated confidence in his ability and performance.*fn2 In connection with his promotion, Neal was required to and did submit a request to reenlist a third time in May 1974. Neal's term of duty would have expired in October 1974, but was extended for two months to permit him to complete a training course at the Army Corps of Engineers joint services school.
Neal's request to reenlist for five years was referred to the Enlisted Performance Board ("EPB") on August 24, 1974. The EPB provides the Commandant of the Marine Corps with advice and recommendations on enlisted personnel matters which he can either approve or disapprove. The EPB which considered Neal's reenlistment was convened pursuant to the Precept for the Enlisted Performance Board then in effect, dated October 26, 1973, which provided that the EPB would consider and make recommendations on, inter alia, the reenlistment of Marines where the reenlistment would result in service beyond 20 or 30 years.*fn3
The primary challenge which Neal presses in this lawsuit concerns the proceedings conducted by the EPB. Neal was informed, through a communication to his commanding officer, that the EPB was reviewing Neal's application for reenlistment, that a psychiatric evaluation was required, and that the EPB would consider two Naval Investigative Service ("NIS") reports dated September 18, 1972 and January 8, 1974. Neal was also informed that any written statement concerning these reports which he submitted before September 11, 1974 would be considered by the EPB in its review. However, neither Neal nor his commanding officer was permitted to see these reports nor were they able to obtain any additional information about them. Additionally, Neal was not advised to seek the assistance of counsel nor informed of the availability of counsel.
The two NIS reports concerned two incidents in which Neal was allegedly involved in homosexual behavior. Neal submitted a handwritten letter, dated September 5, 1974, setting forth his own version of the incidents which he correctly guessed were the subject of those reports. His letter contained his firm denial of any participation in homosexual acts and reflected his concern at being stigmatized as a homosexual. The EPB was also provided with a psychiatric evaluation of Neal, prepared for the purpose of evaluating his fitness to reenlist, which found him "(f)it for full duty (and) recommended for same."
In its consideration of Neal's reenlistment request, the EPB reviewed, inter alia, the 1972 NIS report regarding an investigation of allegations that Neal had made homosexual advances towards another Marine while stationed in Okinawa, which investigation was dropped without the filing of any charges against Neal; the 1974 NIS Report which consisted of a police file showing the arrest of Neal by California police on charges of assault with a deadly weapon and sexual perversion, which charges were dismissed with prejudice when the alleged victim did not appear at trial; and other material which Neal was unaware would be considered, including a 1970 NIS Report regarding an interview of Neal concerning the suspected homosexuality of another Marine, references to a California police report that Neal had been contacted by the Oceanside Police Department on two occasions when he was drunk, which had been incorporated into the 1974 NIS Report, and the report of a March 1971 incident when Neal was disciplined after resisting apprehension by military police at Jacksonville, North Carolina. Neither Neal nor any other witnesses appeared before the EPB.
The EPB recognized that Neal's performance since 1970 had been "generally described as excellent," but recommended against Neal's reenlistment finding that his "personal conduct over the last five years had been prejudicial to the Marine Corps and not in keeping with the high standards expected of Marine (staff noncommissioned officers)." The one-page EPB opinion relied heavily on the three NIS reports. The EPB recommended that, based on "all the relevant facts", Neal be allowed no further service beyond his present term of service. The Commandant approved the EPB recommendation, and on November 20, 1974 Neal was informed of the denial of his reenlistment request but not of the reasons for the denial. On December 23, 1974 Neal was honorably discharged with a reenlistment code of RE-3C which bars reenlistment except by authorization of the Commandant.
Neal made efforts to learn the basis for the EPB decision since he was not furnished with a copy of its opinion. His counsel requested a copy of Neal's entire service record but was not supplied with the EPB opinion nor informed of its existence. Neal received edited versions of the NIS reports in March 1976, at which time he first learned of the existence of the 1970 NIS Report. The deleted portion of the 1974 NIS Report regarding contact by the California police when Neal was allegedly drunk was not made available to him until January 24, 1978. It was not until October 21, 1976 that Neal received a copy of the EPB opinion.
On June 11, 1976, Neal petitioned the Board for the Correction of Naval Records ("BCNR") to correct his record and to alter his reenlistment code so as to enable him to reenlist.*fn4 Although the BCNR originally declined to exercise jurisdiction asserting that it lacked the authority to review or to change reenlistment codes, the BCNR undertook such review after this suit was filed to compel it to consider Neal's case. In that connection a three judge panel of the BCNR examined documentary material including Neal's reenlistment application, his Marine Corps record, applicable statutes, regulations and policies and advisory opinions from, inter alia, the Marine Corps Personnel Management Division and the Marine Corps Judge Advocate Division.
On April 5, 1978 the BCNR informed Neal that the majority of the panel members had determined that "the evidence submitted was insufficient to establish probable material error or injustice," and that his application for relief was denied in all respects. The BCNR stated that it was proper for the reenlistment to be denied on the basis of the EPB finding that Neal's "overall record cast doubt on (his) eligibility for continued service, based on the implied risk of continued involvement with military and civilian authorities and associated discredit to the Marine Corps."
The BCNR panel found that there was no right to appear before the EPB, to have adverse witnesses available for cross examination, or to have legal counsel assigned for the EPB hearing. It concluded that there was "insufficient evidence to show that (Neal) suffered any substantial prejudice as a result of the fact that (he was) not shown the Naval Investigative Service (NIS) reports prior to their consideration by the (EPB)," since Neal had not demonstrated that the EPB was under the mistaken impression that Neal had been convicted of any misconduct. Instead the panel found that the EPB considered the reports "in the context of investigative status only, and ... recorded that status in terms such as ... "allegedly' and "charges never materialized'." Moreover, "the (EPB's) recommendation and the subsequent decision of the Commandant were not punitive in nature, and resulted in a fully honorable separation." Finally, the panel found that Neal had been aware of the general subject of two NIS investigations and his statement had addressed the principal allegations of those investigations.
The third member of the BCNR panel dissented on the ground that the EPB proceedings were infected by a procedural error. The dissenting member believed "that the NIS reports considered by the Enlisted Performance Board contained adverse comments which clearly contributed to the recommendation of that Board that (Neal) be denied the opportunity to reenlist; and that it was procedurally improper for the Enlisted Performance Board to have considered said reports without having first given (Neal) an opportunity to examine them and to comment on their content." The dissent would have given Neal relief by convening another EPB to determine whether Neal should be permitted to reenlist and would have permitted Neal to appear before such a Board with counsel. If, thereafter, reenlistment were recommended, the dissent thought backdating of the reenlistment should be considered. Since the majority did not find error or injustice and determined that the application should be denied without a hearing,*fn5 the application was denied.
Neal's Complaint in this case was amended to take account of the changed posture of the case after the BCNR review. It attacked the procedures followed by both the BCNR and the EPB as being violative of prescribed regulations and his constitutional rights. Neal requested that the Marine Corps be ...