The opinion of the court was delivered by: DOOLING
MEMORANDUM (Incorporating Findings of Fact) and ORDER
A hearing has now been held upon remand of the present case to this Court on the question whether the procedures used in the plaintiff's disciplinary proceedings at the United States Merchant Marine Academy comported with due process of law which, as the Court of Appeals has held (382 F.2d 807, 812) "requires for the dismissal of a Cadet from the Merchant Marine Academy that he be given a fair hearing at which he is apprised of the charges against him and permitted a defense." The Court of Appeals directed attention specifically to three points (382 F.2d at 813), first, whether the Regimental Board of Investigation which heard the plaintiff's case had such prior contact with his case that they could be presumed to have been biased; second, whether plaintiff was seriously prejudiced by a denial of a postponement of his hearing in order to obtain favorable witnesses; and third, whether the Board failed to disclose to plaintiff the evidence against him or any of it and the reasons for so doing if it was done.
At the time in question plaintiff was a Second Classman (i.e., a Junior) at the Merchant Marine Academy at Kings Point, New York [46 U.S.C. § 1126(b)(1)]. The Disciplinary Regulations of the Corps of Cadets emphasized that standards of discipline must necessarily be high since offenses tolerable in civilian life are intolerable aboard ships where human life and valuable property can be jeopardized by want of discipline. The Regulations say that it is "a stern disciplinary necessity that makes the * * * Academy require of her Cadets a character for trustworthiness that allows no evasion."
Article 200.00, after stating that a high standard of discipline must be maintained at the Academy, states that, "It is considered serious misconduct for any Cadet, alone or in concert with others, to adopt any measure - oral or written - for the purpose of violating or evading any Academy rule or regulation. No Cadet, alone or in concert with others, shall commit any act contrary to the rules of good order or discipline, or endeavor to induce others to commit such an Act." Article 200.03 of the Disciplinary Regulations defines as deficiencies in conduct violations of regulations, the commission of acts to the prejudice of good order and military discipline, or the failure to measure up to the standards of a Cadet and gentleman; it provides that deficiency shall be punished in accordance with established regulations and that the demerits awarded shall determine a Cadet's Conduct Grade. The classification of offenses and the general procedural structure are outlined in the opinion of the Court of Appeals and need not be repeated. See 382 F.2d 807, 810-811.
The hearing on remand explored the precise course of the investigation, the hearing before the Regimental Board of Investigation, and the procedure before the Senior Board of Aptitude, Conduct and Discipline Review; the hearing went also into the extent of the matter known to the investigating officer which was not disclosed to plaintiff and which, if it had been disclosed to plaintiff, he contends he might have attempted to meet through the production of witnesses.
The episode giving rise to the disciplinary proceedings was serious in its total dimension, in part because it involved a mass movement by a relatively large number of Cadets of several classes, and it struck at the Cadet Regimental chain of command. The episode evidently grew out of a background of dissatisfaction with activities of the Cadet Regimental Commander and Regimental Executive Officer; it took the shape of what was - in general correctly - characterized as "an unauthorized mass movement to Regimental Row for the purpose of throwing the Regimental Commander and Regimental Executive Officer in the Sound."
The episode took place on the evening of March 30, 1967. The Report of Deficiency on plaintiff is dated April 10, 1967; plaintiff's hearing before the Regimental Board of Investigation took place on April 13, 1967; the meeting of the plaintiff with the Senior Board of Aptitude, Conduct and Discipline Review took place on May 8, 1967; and the Senior Board's report recommending dismissal was made on May 11, 1967.
The episode occurred on the evening of March 30th which was a Thursday. Apparently the Regimental Commander, Captain O'Leary, learned of the episode some time after it occurred on March 30, and as early as six-thirty on the following morning he had talked to Midshipman van Oss, the Cadet Regimental Commander who had been one of the two objectives of the mass movement of the preceding evening. Formal organized attention to the matter was deferred however until 10 or 11 A.M. on Friday, March 31st, at which time the regular weekly meeting between the Cadet Command Board and the Regimental Commander and other Academy Officers took place. The officer staff of the Regimental organization included three Lieutenant Commanders, Boyle, Litchfield and Hannigan, each of whom commanded one of the three battalions making up the Academy's complement, and their assistants, two of whom were Lieutenants De Filippi and McCammon; Captain O'Leary, too, had an assistant. There were also, apparently night watch officers.
At the meeting with the Regimental Officers on March 31 six of the eight Cadet members of the Command Board were present, including van Oss and the Cadet Regimental Executive Officer, Teague. Of the Regimental Officers of the Academy, Captain O'Leary was present as were Commanders Litchfield and Hannigan, Lieutenants Junior Grade McCammon and De Filippi, Chief Warrant Officer McCaffrey and Mr. Ash. The meeting lasted until it broke up for lunch, and the conferees discussed the previous evening's episode for about an hour.
Captain O'Leary, the senior officer present, and the person responsible for Academy discipline, was emphatic that the offense of the previous evening was one against organization and discipline rather than against the Cadet Officers, and that it was important to determine who had led and who had participated in it. van Oss was, or said he was, unable to identify any of the people involved and no Cadet's name was mentioned except that of Cadet Pillsbury. The Cadet Command Board emphasized the importance or, at least, the value of determining why the episode had occurred.
The meeting broke up with the Command Board under a general impression that it had the role of coming up with a decision, or suggesting a solution and communicating it to the officer staff of the Academy later in the day, after the last class of the day. Evidently in consequence of this some kind of arrangement was worked out among the Cadets under which it was contemplated that Cadet Pillsbury, then a second classman, would report to Captain O'Leary and present himself as a person who was responsible as a leader or instigator because he had been present and although an upper classman had - effectively - participated and had not done anything to suppress the occurrence or bring it to an end. The thought was that such an avowal would head off broader proceedings and end the matter. Pillsbury went to the Administration Building probably around two o'clock with that mission in mind.
At about 2:00 P.M. the officer staff, or apparently at least Captain O'Leary, Commanders Litchfield and Hannigan, Lieutenants De Filippi and McCammon and Chief Warrant Officer McCaffrey, reconvened further to consider the matter. Cadet Pillsbury came to the officers at that time and avowed his participation in the episode. It quickly became apparent, however, that the Cadet Command Board was not in control of the situation, and that the project on which he was embarked was impossible of accomplishment. In consequence of that at a later hour, probably somewhere about 3:00 P.M. he went to Captain O'Leary's office and in confidence told him and Commander Hannigan the full story as he believed it to have occurred. There appears to be no doubt that in Pillsbury's recital plaintiff Wasson's name appeared prominently and in a leadership role, and that Cadets of the Third Battalion, Commander Hannigan's Battalion, were deeply involved in the mass movement.
After the close of the two o'clock meeting, over the Academy's public address system, two sections of the Third Battalion, Sections 363 and 368, were directed to report to the Administration Building. All cadets of the two sections who were at the Academy assembled in the Administration Building. Commander Hannigan then called out the Section 368 cadets and some 5 or 10 minutes later dismissed them as not substantially involved. The Section 363 cadets were directed to remain.
Plaintiff Wasson was in Section 363, but he had left the Academy some time around noon with the rest of the Academy Sailing Team for a competition that was to be held on the weekend at the United States Naval Academy. Plaintiff did not return to the Academy until late on the night of Sunday, April 2d or in the very early morning hours of Monday, April 3d. He was not therefore - as were the other Section 363 cadets - interrogated on March 31.
Each of the Section 363 cadets was called separately into the Board Room for interrogation. Captain O'Leary, Commanders Litchfield and Hannigan, Lieutenants McCammon and De Filippi and Chief Warrant Officer McCaffrey were present. The six members of the Cadet Command Board and Cadet Pillsbury were in the room and remained throughout the interrogation of the Cadets but played no active part in the further proceedings.
Commander Hannigan was the interrogator, and he had a relatively few questions, four or five, which he addressed to each cadet. Questions were occasionally interjected by Commander Litchfield and possibly by Lieutenant De Filippi. (Both Commander Litchfield and Lieutenant De Filippi had also asked some questions during the early morning meeting, and Commander Litchfield if not Lieutenant De Filippi had asked some questions of Pillsbury during his session with the officer staff.) Commander Hannigan's questions were simple and direct. The cadet was asked whether he had been present in Regimental Row at the time of the occurrence, whether he had participated in it, why he had participated in it, how he had found out that it was making up, and who else was present. Apparently none of the cadets implicated anyone other than himself, and it appears that none of them named plaintiff Wasson as having been present. The interrogation was brief and some of the twenty-one or so cadets interrogated remembered that they were asked whether they had laid their hands on anyone, or whether they had touched the Cadet Regimental Commander.
On Sunday, April 2, Pillsbury was called into Captain O'Leary's office rather casually and again went over the same ground covered in his talk with Captain O'Leary and Commander Hannigan on Friday. Commander Litchfield was on duty on Sunday, April 2, and it appears that he very likely was in Captain O'Leary's office, heard some or all of the repetition of the story by Pillsbury to Captain O'Leary, and may have asked one or more questions about it. There is some indication that Commander Litchfield heard some part of Cadet Galik's interview with Commander Hannigan on Monday, April 3d but this is far from clear and it does not appear that Commander Litchfield's participation in either of the two interviews had any particular dimension or significance.
Commander Hannigan as the officer in command of the Third Battalion properly became the investigating officer. He pursued the investigation with some direction from and some participation by Captain O'Leary. Commander Hannigan made incomplete notes of his interviews with the cadets; his notes include two handwritten memoranda of his interview with plaintiff.
Commander Hannigan's investigation was systematic; it involved interviews with all of the cadets in Section 363 and apparently some interviews with cadets in other sections. (It appears that there were seven sections in Commander Hannigan's Third Battalion but the only sections under suspicion were Sections 363 and 368, and, as noted above, the cadets in Section 368 were dismissed from inquiry as a result of the March 31 preliminary consideration of the matter.) Commander Hannigan interviewed some thirty of the cadets and made and preserved twenty-two pages of handwritten notes, some of which are mechanical pages containing lists of names or rewritings of interviews reflected in rougher form on other pages. The interviews were held either in Commander Hannigan's office or in a room in the Administration Building. Usually a Mr. Armbruster was available to Commander Hannigan to act in part as a messenger or summoner of the cadets. At one or two of the interviews Captain O'Leary may have been present.
The notes are in general legible and portray a conscientious and dispassionate effort to get to the bottom of a complex incident that evidently had its roots in dissatisfaction with cadet-imposed disciplinary measures or procedures or reports. Commander Hannigan testified that the broad inference that he drew from his investigation was that there were ringleaders and that the principal ones were Cadets Hamann and Wasson, who were roommates, and in addition to them Cadets Ellard, Pillsbury, Smith, Adams and Martucci. The interview notes indicate that Commander Hannigan interviewed all of the cadets except Adams and Martucci who were later charged.
Eleven cadets were charged in all. Commander Hannigan was responsible for the preparation of the Reports of Deficiency on the individual cadets. Each Report of Deficiency sets forth the charge, which in plaintiff's case was "disorderly and improper conduct," and the specifications, which in the case of plaintiff consisted of six items.
Probably on Monday April 10, 1967, plaintiff's name appeared on the Mast List which is published every day at about noon, and on that same day he received from the Administration an envelope containing the Report of Deficiency (including the charge and specifications) together with a copy of the order convening a Regimental Board of Investigation and disclosing the membership of the Board. The Mast List was marked so as to indicate that plaintiff was required to file a responsive statement to the charge and plaintiff did prepare and submit a responsive statement under date of April 11, 1967. This was in accordance with Article 200.07(b) of the Disciplinary Regulations, which describe the Mast List procedure and provide that a responsive statement if submitted must be in writing and "shall consist of a straightforward account of the facts relating specifically to the charge. It should not contain irrelevant or improper material, and it must not be a medium for the submission of counter-charges. If the statement places responsibility on another cadet he must be named."
The Regimental Board of Investigation convened under Article 200.07(c)(3) and Article 200.08(a) did not include Commander Hannigan as he was the reporting and investigating officer but its members were Lt. Commander Litchfield of the 1st Battalion, Lt. Commander Boyle of the 2nd Battalion, and Lt. (j.g.) De Filippi of the 2nd Battalion; Chief Warrant Officer McCaffrey served as secretary of the Board.
After plaintiff received the Report of Deficiency he consulted with Professor Lazarra at the Academy. Professor Lazarra is an instructor in physics, and is not an attorney. Plaintiff asked Professor Lazarra for his assistance and advice which was fully and freely given, and given without charge of course. Professor Lazarra suggested that plaintiff consult with a lawyer and accordingly on April 12 plaintiff applied in writing to Captain O'Leary as Regimental Officer for a postponement of the Regimental Board in order to enable him to obtain and consult with legal counsel of his choice. On the same day Captain O'Leary as Regimental Officer replied that plaintiff's request for a postponement in order to consult legal counsel was disapproved.
Professor Lazarra also suggested and possibly drafted a protest against the appointment of Lt. Commander Litchfield, Lt. De Filippi and Chief Warrant Officer McCaffrey to the Regimental Board of Investigation. At any rate plaintiff and Cadets Hamann, R. J. Smith, Rollins, Reichart and Ellard together signed a written application, dated April 12, to the Regimental Officer for the appointment of a new Board in accordance with Article 200.08(a) on the ground that Lt. Commander Litchfield, Lt. J. G. De Filippi and Chief Warrant Officer McCaffrey had taken an active part in the investigation and interrogation of the incident which resulted in the charges, thus disqualifying them from participation in the Board. It appears that on April 12 plaintiff Wasson in person took the joint application to Captain O'Leary and that Professor Lazarra accompanied plaintiff when he presented it to Captain O'Leary. At that time Captain O'Leary left his office and went out to Professor Lazarra and told him that he thought the Professor was giving bad advice to Wasson and advice contrary to Academy regulations. From Captain O'Leary's viewpoint the participation of Hamann and Wasson in the protest against the membership of the Regimental Board of Investigation was improper since neither of them had been present at the Academy on March 31, and neither one of them had been a participant in the March 31 proceeding in which Messrs. Litchfield, De Filippi and McCaffrey had been present with the other officers. While Captain O'Leary did not consider that the other cadets who joined in the protest had a material ground of protest, he regarded their participation in the protest as standing in a different light, since they had been interrogated on March 31; Captain O'Leary advised Reichart, when Reichart spoke to him, that he would be prepared to appoint night watch officers in place of those who had been nominated in the case of Reichart and the others.
To plaintiff Wasson Captain O'Leary replied on the same day that he had deliberately taken trouble to appoint a Board not involved in the investigation and interrogation of those involved in the incident and that to his knowledge the officers appointed to plaintiff's Board had never spoken to plaintiff or been present when plaintiff was interrogated as claimed in the memorandum that he signed. Captain O'Leary advised that it was his decision that the Board in plaintiff's case would remain as constituted. In the cases of Rollins and Reichart Captain O'Leary did appoint a substitute Board. Rollins and Reichart had also pressed the point before Commander Hannigan; he recommended against their request, indicating that it would mean the substitution of less experienced officers for the ones then on the Board, but he yielded to their insistence. Commander Boyle remained on the Boards that heard the cases of Rollins and Reichart but Messrs. Duncan and Benetto (?) were substituted for Messrs. Litchfield and De Filippi.
Plaintiff's Board hearing occurred on April 13 at about three o'clock or so in the afternoon. Commander Litchfield presided over the Board as Chairman. Plaintiff came in carrying a brief case and he was asked to remove that from the room. He did so, and came back carrying only the notes that he meant to use.
At the outset plaintiff was told that he would be asked questions but that he need not answer any of the questions, and that if he did not do so that fact would not be held against him. The charge and specifications were then read to him and he read his statement in response to the charge and specifications. Plaintiff was asked whether he had anything to add to his responsive statement or to change it. Then there were questions and answers, and at the end he was asked to state anything additional which he had to say, and he made a closing statement.
At some point in the proceeding Lt. Commander Litchfield recalls that plaintiff was asked whether he had any witnesses whose testimony he wished to offer and that plaintiff appeared somewhat surprised at the question but did not ask for an opportunity to present witnesses or indicate that he would have presented witnesses had he known that it was his right to do so. Commander Litchfield recalled that the only request that plaintiff had made of the Board was for permission to smoke and that permission was granted. Plaintiff's testimony was that he said, when he was asked whether he had any witnesses to present, that if he had known that he would be permitted to present witnesses, and had been granted the time to obtain them, he would most certainly have presented witnesses, and plaintiff says that Lt. Commander Litchfield then said, in substance, that it was not important anyway, and that the hearing was then closed. Neither Lt. Commander Boyle (who was not ...