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November 20, 1984

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

The opinion of the court was delivered by: MCCURN


McCURN, District Judge.

 Plaintiff Paul M. Kolesa commenced this action in May of 1981, challenging an order of the Secretary of the Navy whereby Kolesa was disenrolled from the Naval Officers' Training Corps ("NROTC") program and directed to commence two years active duty in the Navy as an enlisted man. Presently before the court is the Secretary's motion for entry of final order of dismissal or in the alternative for summary judgment. For reasons set forth herein, the court grants summary judgment for the Secretary.


 The events that preceded Kolesa's commencement of this action are set forth in some detail in this court's prior decision, Kolesa v. Lehman, 534 F. Supp. 590, 591-93 (NDNY 1982). Familiarity with the court's prior decision is assumed. Summarized, in 1977 Kolesa executed an 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. As part of the agreement, Kolesa acknowledged that "if I fail to complete the four year course of instruction . . . I may be ordered to active duty by the Secretary of the Navy to serve in an enlisted status for a period not to exceed four years." In addition, Kolesa executed a drug usage statement in which he denied ever having used either marijuana or other stimulants, and forswore "the abuse of drugs both now and in the future."

 In September of 1980, during a pre-commissioning physical examination, Kolesa informed the examining officer that he had tried marijuana, hashish, and an over-the-counter stimulant. These admissions were reported to NROTC authorities, and in December Kolesa received notice that a Board of Review would be convened "to investigate the alleged use of illegal drugs and recommend to the professor of Naval Science a proper course of action."

 Allegedly acting upon the prior advice of Lt. Ballard, one of the Review Board Members, Kolesa submitted a written statement to the Board in which he admitted having "tried" marijuana, but represented that "(this) experimentation is now in my past. . . ."

 The Board of Review thereafter issued a decision in which it found that Kolesa had used illegal drugs, and that Kolesa had "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." The Board then 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." On February 27, 1981, the Secretary affirmed the Board's recommendation that Kolesa be disenrolled, and ordered him to report for two years active duty as an enlisted man, no later than May 31, 1981.

 Kolesa then commenced this action and obtained a temporary restraining order, which has been continued by written consent of the parties. As stated in this court's prior decision, Kolesa's principal non-abandoned claims were that the Review Board hearing violated his right to procedural due process in that (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 the right to have counsel represent him at the hearing; and (3) that Lt. Ballard improperly advised him before the hearing, yet continued to act both as witness and judge on the Review board, thereby depriving plaintiff of the right to an impartial decision-maker.

 Upon the Secretary's earlier motion to dismiss or for summary judgment, the court held, first, that "due process did not require that Kolesa be represented by counsel at the Board of Review hearing," 534 F. Supp. at 594, and granted judgment in favor of the defendant as to that claim. Id. at 595. Secondly, the court discussed certain principles pertaining to Kolesa's two remaining claims, but it refrained from deciding the Secretary's motion with respect to such claims. Instead the court directed the plaintiff to apply for review of the Secretary's decision in accordance with 32 C.F.R. § 723.1-11 before the Board for the Correction of Naval Records ("BCNR"). As the court explained:

 It is the opinion of this Court that an airing of plaintiff's claims in a BCNR hearing will cure any constitutional deficiencies that may have attended his Board of Review hearing, will provide the Secretary with a useful, second look at an important decision, and will accord with the accepted judicial practice of avoiding unnecessary resolution of constitutional issues.

 534 F. Supp. at 595. The court did, however, retain jurisdiction over this case, and provide for the continued effectiveness of the stipulated restraining order.

 Now represented by counsel, Kolesa applied for correction of his naval records and obtained a hearing before the BCNR. At the hearing, Kolesa stated that he had used marijuana or hashish only two or three times, and only once after entering college; that he did not report his prior marijuana use on the NROTC application papers because the relevant question inquired about ...

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