The opinion of the court was delivered by: WARD
ROBERT J. WARD, District Judge.
Plaintiff, a cadet at the United States Military Academy ("the Academy"), moves pursuant to Rule 65(a), Fed.R.Civ.P., for a preliminary injunction requiring defendant to grade his first-year final examinations and to permit him to begin the new term at the Academy when it commences on or about July 10, 1974. At the oral argument, defendant cross-moved pursuant to Rule 56, Fed.R.Civ.P., for summary judgment. Inasmuch as plaintiff's final examinations have now been graded and he has been furnished with an academic transcript covering the past year, this portion of plaintiff's motion is denied as moot. For the reasons hereinafter stated, the remainder of plaintiff's motion is denied and defendant's cross-motion is granted.
This action seeks to set aside the separation from the Academy of plaintiff, who has been found to have committed a violation of the cadet honor code by cheating on an examination. This finding was made by a board of five senior officers who, by majority vote after a full hearing, stated:
"that the allegation is supported by substantial evidence, and that Cadet Cromwell Roberts, Company G-2, Class of 1977, United States Corps of Cadets, did, at West Point, New York, on or about 28 February 1974, cheat in violation of the cadet honor code, by marking on his answer card after entering the approved solution room of an Environment 102 written partial review."
Transcript of Board of Officers Hearing, p. 172.
The Court has reviewed the record of the hearing at which nine witnesses testified and thirteen exhibits were admitted in evidence. Plaintiff was present and was represented by counsel who cross-examined the witnesses against him and called six witnesses in his behalf, including plaintiff.
In the complaint, plaintiff alleges that the cadet honor code violates due process in that the only penalty for an honor code violation is separation from the Academy and, further, that this may also amount to cruel and unusual punishment in violation of the Eighth Amendment of the Constitution. Plaintiff also alleges that the finding of the Board of Officers denied him due process in that the decision was contrary to the evidence, that he was not found guilty beyond a reasonable doubt and that there was not substantial evidence to support the Board's finding and, finally, that the Board voted 3-to-2.
A review of the record reveals that on February 28, 1974 plaintiff, then in the middle of his first year as a cadet at the Academy, was observed in the apparent act of cheating on an examination in Environment 102 by two officers monitoring the examination. The alleged cheating consisted of marking answer cards in a room, separate from the examination room, where the answers to the examination were posted. This act was reported to the cadet honor committee, an organization entirely composed of and administered by cadets at the Academy whose function is to investigate and make findings with respect to alleged violations of the cadet honor code, which provides, "A cadet will not lie, cheat or steal, nor tolerate those who do."
The honor committee found that plaintiff had cheated on the examination. Pursuant to paragraph 16.04 of the Regulations of the Academy, plaintiff had the option (at the discretion of the Superintendent) of resigning, of being tried by court-martial, or of having his case heard by a board of senior officers. Plaintiff chose the last option and, by Letter Orders dated March 27, 1974, a board of five officers was appointed, and Captain Arthur F. Lincoln, Jr. was appointed as his counsel. It should be noted that plaintiff had the right to retain civilian counsel.
Plaintiff was notified in advance of the names of the witnesses who were expected to testify against him, and of the precise act of cheating that was being alleged. His counsel was given a full opportunity to challenge the five members of the board for bias and, as noted above, to cross-examine witnesses, and to present witnesses in plaintiff's behalf.
The board of officers held its hearing on April 11, 1974. Captain Robert H. Turner testified that he was monitoring the "approved solution room", where cadets were permitted to compare their answers with the correct answers after they had finished marking their answer cards. He observed a cadet, later identified as plaintiff, to be holding his right arm in an unusually stiff position. Captain Turner then noticed that plaintiff's right hand concealed a pencil, and that he was making writing motions over his answer cards, all the while moving back and forth between a wall where the correct answers were indicated, and a desk where a template was located that would indicate the correct answers when held over the answer cards. Captain Turner observed this activity over several minutes, at a distance of from four to ten feet. He did not actually see pencil marks being made on the cards.
Captain Turner thereupon asked Major Dluzyn, then monitoring the examination room, to observe the solution room to see if anything unusual was occurring. Major Dluzyn testified and except that he did not see a pencil in plaintiff's hand.
The testimony of the two officers was corroborated by the appearance of plaintiff's answer cards, which were of the multiple choice type whereby a computer can read blackened squares corresponding to the correct answer. The cards showed six responses entered so lightly that they were not scored by the computer, five of which were correct. Three other responses, unlike all the others on the cards, were characterized as "scribbly." They too were correct.
Plaintiff testified that he had not cheated, and specifically denied that he had a pencil in his hand. His explanation for the unusual motion of his right hand over his cards was that he was pointing to the answers and he ascribed the unusual appearance ...