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KOLESA v. LEHMAN

March 17, 1982

Paul M. KOLESA, Plaintiff,
v.
John F. LEHMAN, Jr., Secretary of the Navy, Defendant



The opinion of the court was delivered by: MCCURN

MEMORANDUM-DECISION AND ORDER

Plaintiff, a scholarship student in the Naval Reserve Officers Training Corps at the University of Rochester, New York ("NROTC") was disenrolled from the NROTC program and ordered to commence two years active duty in the United States Navy as an enlisted man following a hearing before a Review Board which found that plaintiff had used illicit drugs and shown only marginal military performance in the NROTC program. Rather than pursue an appeal to the Board for the Correctional Naval Records ("BCNR") pursuant to 10 U.S.C. § 1552 and 32 C.F.R. §§ 723.1-.11, plaintiff brought this action on May 26, 1981 to prevent the defendant Secretary of the Navy from ordering plaintiff to active enlisted duty. This Court granted a TRO on May 29, 1981, and thereafter the parties filed a written consent to continue the restraint until entry of final judgment.

On March 9, 1982, this matter was before the Court on defendant's motion to dismiss the complaint or, in the alternative, for summary judgment. During the hearing it became apparent that the material facts were not in dispute; accordingly, the Court informed the parties that the case would be considered submitted on cross-motions for summary judgment with respect to plaintiff's due process claims. Having considered the pleadings and exhibits on file, together with the briefs and argument of counsel, the Court agrees with the Secretary that plaintiff has failed to exhaust his available remedies before the BCNR, and for that reason, the Court declines to rule on plaintiff's constitutional claims at this time. For the reasons stated below, the Court will retain jurisdiction and continue the TRO in effect in order to maintain the status quo and give plaintiff a reasonable opportunity to present his complaint to the BCNR.

 FACTS

 Plaintiff enrolled in the NROTC in September 1978, during his sophomore year at the University of Rochester. At about that time, plaintiff executed a NROTC Scholarship Service Agreement in which he agreed to enlist in the Naval Reserve for a period of six years in exchange for a college education at the Navy's expense. Upon successful completion of his academic and NROTC curriculum, plaintiff agreed to accept a commission in the Navy or Marine Corps, if offered, and to serve a minimum period of active duty. Under the terms of the Agreement, the Secretary of the Navy retained the right to release plaintiff from his contractual obligations and separate him from the training program in the event that the Secretary determined that the best interests of the naval service require such actions. Defendant's Exhibit A.

 In connection with his enrollment, plaintiff also executed a drug usage statement, NAVCRUIT FORM 1100/11, in which he denied ever having used either marijuana or other stimulants, and categorically rejected "the abuse of drugs both now and in the future." Defendant's Exhibit A.

 Plaintiff's scheduled graduation date was May 1981, and on September 25, 1980, he reported for a pre-commissioning physical examination. During his examination, plaintiff told the doctor that he had tried marijuana, hashish and an over-the-counter stimulant. These admissions were subsequently reported to the NROTC authorities on December 1, 1980.

 Meanwhile, on November 17, 1980, plaintiff received a Military Aptitude Warning letter from his commanding officer. The letter informed plaintiff of his low aptitude grades during the past two semesters and of his "marginal performance" during the current semester. The letter further advised plaintiff that he was required to fulfill certain stated requirements and that, if his deficient aptitude continued, he would be called before a Review Board in accordance with regulations, CNETINST 1533.12A, para. 210, and face possible disenrollment and an order to active duty. Defendant's Exhibit D.

 On December 6, 1980, following receipt of both the medical report and the Military Aptitude letter, the commanding officer requested that a Board of Review be convened pursuant to CNETINST 1533.12A, Art. 210. The notice sent to plaintiff stated that the purpose of the Board "will be to investigate the alleged use of illegal drugs and recommend to the Professor of Naval Science a proper couse of action." Court Exhibit 1, P 2. The notice informed plaintiff of both the seriousness of the charge-"... the use of illegal drugs ... is a major breach in discipline," and of the possible consequences: "If it is found that he did use illegal drugs he may be disenrolled from the NROTC Program. Also, because of his advanced standing he may be required to serve on active duty for two years in an enlisted status." Id., P 1. Plaintiff was also informed that his class advisor, Lieutenant Robert Ballard, would sit on the three-member Board of Review. Id. Finally, the notice informed plaintiff of his rights (1) to appear before the Board, (2) to submit written statements and documents, and (3) to call witnesses on his behalf. Id., P 3.

 The Review Board hearing was held on December 16, 1980. The parties agree that plaintiff was not represented by legal counsel at the hearing and that he was not advised, prior to the hearing, of any right to be so represented. Plaintiff alleges, however, that sometime before the hearing he met with Lt. Ballard and was told how to conduct himself at the hearing. Plaintiff also avers that Lt. Ballard advised that if plaintiff submitted a written statement indicating that his drug use was now behind him and that he would never do it again, no disciplinary measures would be taken. Complaint, P 9; Affidavit of Paul Kolesa, P 4 (May 26, 1981).

 In any event, plaintiff did submit a written statement to the Board. In his statement, plaintiff recites his strong academic record and his active participation in certain NROTC activities. Plaintiff also explained that the "gung-ho attitude" of his peers heightened his sense of being an "outsider" and as a result, he was less aggressive in NROTC activities than he was inclined to be. Defendant's Exhibit C. With respect to the drug charges, plaintiff stated that while he admitted to having "tried" or experimented with marijuana, he had never been a "user or pusher," and "(t)his experimentation is now in my past and I will now throw my emphasis on upcoming exams and the spring volleyball season." Id. Plaintiff closed with the hope, "that this statement clears the air on my past and that the board can see fit to retain me as a scholarship student," and "consider me a capable candidate for the Navy officer program." Id.

 In addition to plaintiff's written statement, the Review Board also considered his academic and midshipman records. Lt. Ballard noted that while plaintiff's academic record was above average, his military aptitude and class rank were consistently at or near the bottom of the NROTC class. The Board also noted that because of a class scheduling conflict, plaintiff had not attended Naval Science drill since the end of his sophomore year. After reviewing the Military Aptitude Warning letter and the medical report, the Board questioned plaintiff concerning the drug charge. According to the written summary of the Board's decision, plaintiff stated that he first used marijuana during his senior year in high school and that he "continued to use/experiment with it about twice a year since then." Defendant's Exhibit E. Moreover, plaintiff "acknowledged that he made a false statement while being processed for a scholarship during his sophomore year in that he indicated no prior use of illegal drugs." Id.

 The Review Board issued its decision on December 17, 1980. The Board found that plaintiff had used illegal drugs, and recommended that: "based upon his use of illegal drugs and his marginal military performance that he be disenrolled from the NROTC Program and ordered to active duty upon completion of his degree in May of 1981." Id. On February 27, 1981, the Secretary of the Navy, or a subordinate acting at the Secretary's direction, affirmed the Board's recommendation that plaintiff be disenrolled, and ordered plaintiff to embark on two years of active enlisted duty upon graduation from the University of Rochester. It is undisputed that plaintiff never sought review by the BCNR.

 In this Court, plaintiff contends that the Secretary's decision deprived him of a protected property interest without due process of law in that he did not receive a full and fair hearing by the Board of Review. Specifically, he asserts that the Review Board hearing violated his right to due process in the following respects: (1) the notice was inadequate because it did not inform him that his military performance and his 1978 drug use statement were at issue; (2) he was denied that right to have counsel represent him at the hearing, and (3) that Lt. Ballard improperly advised plaintiff before the hearing, yet continued to act as both witness and ...


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