The opinion of the court was delivered by: BRIEANT
Plaintiff, a third-year cadet at the United States Military Academy, West Point, New York ("USMA") in this District, seeks a preliminary injunction pending trial of the action to prevent his final separation from USMA, enjoining and restraining defendants from ordering plaintiff to active duty in the United States Army and requiring defendants to reinstate plaintiff in USMA as a cadet in good standing so that he may continue his studies and training, all pending a trial of the action.
He is to be expelled because he received 107 demerits, disciplinary in nature, during the period from December 21, 1971 to June 7, 1972, in which 102 was the maximum number allowed. The complaint seeks declaratory and injunctive relief against defendants in their individual and official capacities. Plaintiff is a citizen of the United States and of the State of Massachusetts. Jurisdiction is based on 28 U.S.C. §§ 1331, 1361, 2201 and 2202.
Plaintiff asserts that the procedures by which he was cashiered from West Point violate his Fifth Amendment rights to due process of law.
The litigation seeks to test whether under currently held constitutional notions, procedures followed at USMA generally, and in this case, amount to a deprivation of due process. Plaintiff's constitutional claims cannot be dismissed without an evidentiary hearing. Wasson v. Trowbridge, 382 F.2d 807 (2d Cir. 1967). The test to be applied is twofold; are the duly constituted procedures valid, and were they applied according to their terms in plaintiff's case. (Wasson, supra.)
USMA is an educational institution of outstanding prestige and honorable tradition. It trains volunteer members of the military service, at Government expense, in a course of academic, military, physical and character training, designed to prepare them for service as career officers in the United States Army. Preparation to accept full responsibility for all that they do or fail to do, and the placing of loyalty to the Service above self-interest, or loyalty to friends or associates, is a paramount goal of this course of training. The disciplinary system at USMA is characterized as "correctional and educational in nature, rather than being legalistic and punitive." Section 401, Chapter 4, Regulations, U.S. Corps of Cadets, as amended to November 1, 1971, hereinafter cited as "Regs.").
Relying on the foregoing expressions of policy, a cadet receiving a "Class III Delinquency" or an award of demerits for misconduct at the lowest level of culpability, should not be expected, at his peril, to make every such award of demerits a cause celebre to be argued or litigated to the fullest reach of due process. Rather, he should be expected to accept his demerits, and consequent punishment, in the correctional and educational spirit in which imposed. It is against the interests of the academy, public and the cadet to encourage him at great risk to protest and cavil over every adverse determination.
Delinquencies are classified. "Class I and II Delinquencies" may generally be described as of a serious nature. Class I Delinquencies may only be awarded by the Commandant, and Class II by the Regimental Commander, subject to the approval of the Commandant. A Class I Delinquency results in 15 demerits and a Class II Delinquency in from 9 to 15 demerits, depending on gravity.
Class III Delinquencies, with which this action is concerned, represent "offenses of a lesser nature for which final action will be taken by the Company Tactical Officer." Such offenses include: [Regs. § 403(c)]
Possession of unauthorized articles;
Failing to comply with general or specific instructions or published memoranda (unintentional);
Rusty, missing, dirty or torn articles of any kind;
Violations of uniform regulations;
Violations of prescribed standing classroom ...