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Falk v. Secretary of Army

decided: March 30, 1989.

DAVID FALK, PLAINTIFF-APPELLANT,
v.
SECRETARY OF THE ARMY, DEFENDANT-APPELLEE



Plaintiff-appellant David Falk appeals the April 6, 1988 judgment of the United States District Court for the Southern District of New York (Conboy, J.) denying his motion for summary judgment, and granting the cross-motion for summary judgment of the defendant-appellee, the Secretary of the Army, which upheld the January 19, 1982 and July 27, 1983 decisions of the Army Board for Correction of Military Records, refusing to change the reason and authority given for Falk's army discharge as due to homosexual conduct. Affirmed.

Kaufman, Oakes and Cardamone, Circuit Judges.

Author: Cardamone

CARDAMONE, Circuit Judge

In 1964 appellant resigned from the United States Army as a result of his admitted homosexual conduct and was given an undesirable discharge. Years later he initiated and pursued a number of administrative proceedings, succeeding in upgrading his discharge from undesirable to honorable, and in having his 1964 medical diagnosis changed from homosexual to immature personality disorder. On this appeal he seeks an order compelling the Army to change the reason and the cited authority (the regulation on homosexual conduct) under which his military service was terminated.

The deference accorded administrative rulings is heightened when it is a military ruling that is being reviewed, requiring therefore a greater level of justification to overturn an administrative determination of the military. The end result is to reduce the scope of an appellate court's review of a military board's decision. Such a confined scope of judicial review to a large extent dictates the result of this appeal.

I FACTUAL AND PROCEDURAL BACKGROUND

A. The 1964 Incidents

David Falk, then recently divorced and a college dropout, enlisted on April 1, 1964 in the United States Army Reserves at age 22. His commitment required 20 weeks of training and active service, followed by five and a half years of periodic duty as a reserve. Twelve weeks into active training on July 2, 1964 Falk approached his commanding officer, First Lieutenant Jack M. Morrison, at the United States Army Base at Fort Dix, New Jersey, and admitted that he had recently engaged in two homosexual liaisons, and that he considered himself a homosexual.

Lt. Jackson thereupon initiated an investigation, required at that time under Army regulation AR 635-89(4)(b). The inquiry consisted of Falk undergoing interviews with two mental health specialists, Dr. Robert J. Sadoff, and Major Roy E. Baxter, and with members of the Army's Criminal Investigation Division (CID). In the course of this investigation Falk revealed that he had participated in two homosexual encounters while on leave at a hotel in Brooklyn Heights, New York during the evenings of June 5 and June 12, 1964 with a man named Carl Miller. Falk stated that the two encounters with Miller were his first and only homosexual acts, but that he had experienced homosexual fantasies before and subsequent to meeting Miller.

When asked why he had approached his commanding officer and confessed, Falk explained in a 1964 statement to members of the C.I.D.:

Ever since this happened with Miller I have been confused and upset. . . . I also have thought a lot of what happened when I was with Miller and it excites me to the point where I must masturbate every day to relieve my tensions. I am afraid that I will be tempted to have homosexual acts with members of my unit. I did not report this to Lt. Morrison to avoid my duty in the Army. I would be content to get my problem straightened out and stay in the Army. . . . I went to him, primarily to get medical help, and to tell him my problem.

Psychiatrist Sadoff and social worker Baxter, following their interviews with Falk, issued a neuropsychiatric report on July 6, 1964, in which they concluded: "DIAGNOSIS: sexual deviate, homosexual This man's personality disorder is of such severity that he cannot be expected to respond to counseling, transfer or confinement. This man's problem (homosexuality) is of such severity that he cannot be expected to function adequately in the military."

Upon receipt of the pertinent information, Lt. Morrison was required to designate Falk's homosexual conduct as falling within one of three classes. He designated Falk as a Class II homosexual (Classes I and III are not pertinent to this appeal) that allowed Falk to accept discharge--resign--for the good of the Army pursuant to AR 635-89(6)(2)(a). Falk waived his right to a hearing and agreed to resign, and Lt. Morrison recommended an undesirable discharge. Falk was discharged on August 14, 1964, approximately the date at which the active component of his Army commitment ended.

B. Administrative and District Court Proceedings

In 1977, 13 years later, after Falk heard President Carter announce a program to review less than honorable military discharges issued during the Vietnam era, he initiated a series of administrative appeals. Three of them were directed to the Army Discharge Review Board (Discharge Board), and three later appeals were directed to the Army Board for the Correction of Military Records (Records Board). Although it is the actions of the ...


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