Findings of Fact 154 Ct. Cl. 1. This is to certify that Jessie F. Murray, Master Sergeant, AF 14 073 711, Army and Air Force Recruiting Office, Raleigh, North Carolina, has been a patient on the psychiatric service of the USAH, Fort Bragg, North Carolina since 28 December 1951 and has been observed since this date by the undersigned. Available at the time of his hospitalization were sworn statements by Bobby D. Hedgepeth, Rex B. Howard and Master Sergeant Remus E. Adams to the effect that Master Sergeant Murray was observed to have invited Mr. Hedgepeth and Mr. Howard to participate in fellatio. 2. This man was born on 17 August 1909, the oldest of 6 children. His birth and development were normal and there is no history of early neuropathic traits. He completed high school and took 2 years of college work at Duke University but was forced to leave because of the economic situation at home. He apparently lived a normal life during these years. He then worked for the WPA and civil service as a clerk. He enlisted in the Air Corps in April 1942 and was discharged honorably in October 1945 after having worked the bulk of that time as a teletype operator and clerk in a control room. After discharge he worked for the Veteran's Administration in Durham, North Carolina until he reenlisted in the Air Corps on 23 November 1948. Since that time he has worked at the Recruiting Office in Raleigh, North Carolina. He has received two promotions in the last 13 months. At present he is keeping steady company with a girl friend whom he hopes to marry this spring. His first heterosexual experience was at the age of 18. He describes a relatively active and normal heterosexual life since that time. He masturbated at an early age, but denies this activity since adolescence. This patient denies that he was ever attracted to members of his own sex before 6 or 7 months ago during a particularly strained period after having been jilted by an old girl friend whom he had planned to marry. At this time (6 months ago) the patient had fellatio performed upon himself by several different men, a total of 5 or 6 times. The patient was relatively intoxicated during each of these episodes. He denies that he would participate in such activities when completely sober. He denies any activities other than these few episodes mentioned. In reference to the sworn statements mentioned in paragraph one, the patient insists that he was merely offering the fellatio to Mr. Hedgepeth and Mr. Howard not with the intention of performing the activity himself but of getting someone 185 Findings of Fact else to perform the activity if Mr. Hedgepeth and Mr. Howard were interested. The patient denies ever having performed fellatio himself; he insists the only homosexual activity he has ever participated in were the aforementioned episodes of fellatio performed upon him. He denies the excessive use of alcohol and claims he has been drunk only on infrequent occasions. He denies the use of any drugs. 3. During his stay in the hospital, the patient was at all times clear, coherent, relevant, in contact and oriented. There was no evidence of any disturbance of thinking or feeling. There was no sign of any mental derangement or psychosis. He has at all times been pleasant and cooperative and helpful with the psychiatric staff. There has been no evidence noticeable that the patient willfully concealed or distorted the facts of his case. 4. DIAGNOSIS: No psychiatric illness. 5. It is believed Sergeant Murray is not a homosexual. 6. There is no evidence of any mental disease, defect or derangement that interferes with this man's ability to distinguish between right and wrong or his ability to adhere to the right. He is sane and responsible and is mentally competent to assist counsel and cooperate in his own defense. 7. The medical recommendation is that this man be retained in military service. 8. There are no medical contraindications to administrative disposition. 5. Following the report of psychiatric examination, plaintiff returned to duty at the Raleigh Recruiting Station where he discovered that the nature of the complaints against him had become generally known among both the military and civilian personnel. At his request, his commanding officer effected his transfer in early 1952 to Dobbins Air Force Base, near Atlanta, Georgia. 6. In late 1953 it became common knowledge at Dobbins Air Force Base that master sergeants were being selected in order of their Air Force service classifications for shipment to Korean assignments. Because it appeared to him that he had been passed over, plaintiff inquired of the base adjutant what difficulties existed, and was told that it had been noted on his personnel record that he was not eligible for shipment pending a decision by the commanding officer of Dob Findings of Fact 154 Ct. Cl. bins Air Force Base. Plaintiff asked the adjutant if the delay in action on his reassignment was due to the previous complaints against him concerning homosexuality, and the reply was in the affirmative. The adjutant stated that he believed the problem would be resolved favorably, and shortly thereafter plaintiff was assigned for shipment to Korea. 7. Plaintiff left Dobbins Air Force Base in November and arrived in Korea in December 1953 and was assigned to the Air Installations Squadron, Seoul City, Fifth Air Force, until mid-February 1954, when he was assigned detached service with the Armed Forces Assistance to Korea program. Throughout his entire military service, plaintiff was assigned to administrative and personnel duties. Under date of March 31, 1954, plaintiff in Korea voluntarily made a written statement to an agent of the Air Force Office of Special Investigations at the request of the agent, concerning passive participation in two acts of fellatio while he was stationed at Dobbins Air Force Base. He advised that a certain proprietor of a floral shop at Atlanta, Georgia, had performed the acts upon him on two different occasions. He also stated that on the second occasion, he took with him an airman, whose name he could not remember, and that he believed that the proprietor performed fellatio upon the airman. Under date of April 15, 1954, plaintiff again voluntarily made a written statement at the request of the same OSI agent in Korea. This statement was made in considerable detail, and covered facts concerning his military service as well as family and personal history. Plaintiff stated that while stationed at the Raleigh Recruiting Station he had been the passive participant in acts of fellatio on 4 or 5 occasions. He asserted that the complaints made against him at Raleigh resulted from his refusal to permit enlistment of ineligible applicants sponsored by Sergeant Adams, one of the complainants. He stated that in response to inquiry of the two prospective recruits, the other complainants, he had told them they could resort to prostitutes for a certain charge at a certain hotel in Raleigh, or go to the basement of another hotel and find a homosexual without expense. 185 Findings of Fact He then related the circumstances of the affidavits presented against him, his hospitalization for and clearance by psychiatric examination, and subsequent transfer to Dobbins Air Force Base. He stated that while shopping for flowers for a sick girl friend at a certain floral shop in Atlanta, Georgia, in February 1953, the male proprietor invited him to return that evening to see his champion dachshund dog. When plaintiff returned the proprietor gave him a drink of liquor, made sexual advances, and performed fellatio upon him. Plaintiff further stated that on two subsequent occasions when he had been drinking liquor, he went alone to the floral shop, and the proprietor performed fellatio upon him. He then related how he later took a young airman with him to the same shop at the request of the airman, and how they both resorted to having fellatio performed upon them by the proprietor. He stated that he had never been the active participant in such acts. He expressed great remorse for these mistakes, a determination to refrain from such acts, and a plea that he be permitted to remain in the Air Force. 8. As previously related in these findings, plaintiff was honorably discharged in Korea from his enlistment on August 21, 1954, and was immediately permitted to reenlist for six years. Under Air Force procedures and practices in effect at all times pertinent in this case, an airman was not to be transferred or reenlisted if either a board action or an investigation was pending concerning homosexual activity on his part. Defendant has conceded that no such board proceedings nor administrative action was pending against plaintiff at the time of his reenlistment on August 21, 1954. After his reenlistment in Korea, plaintiff remained on duty there until November 1954, when by operation of the so-called point system, he became eligible for and was transferred to the United States and to duty assignment at Shaw Air Force Base in South Carolina. Subsequent to his last reenlistment, plaintiff served in addition to his regular duties as a member of an Air Force character guidance council in Korea, and was also selected as the airman of the month by a board of officers and awarded a one-week paid vacation in Hong Kong. Special publicity was accorded to plaintiff's Findings of Fact 154 Ct. Cl. reenlistment on August 21, 1954, by an article and picture in the Fifth Air Force newspaper circulated in the Pacific area. After plaintiff's return to the United States and assignment to Shaw Air Force Base, he made a request for national security clearance. 9. Thereafter an investigation of plaintiff was conducted by the 6th District Office of Special Investigations at the request of the Provost Marshal, Ninth Air Force, Shaw Air Force Base, South Carolina, to determine "if homosexual tendencies still existed." As a result of the investigation, plaintiff was advised on November 29, 1955, by his commanding officer at Shaw Air Force Base that it was intended that action would be requested against plaintiff pursuant to Air Force Regulation 35-66. In accordance with that regulation, plaintiff was tendered the option of applying for a discharge or appearing before a board of officers. Plaintiff elected to appear before a board. On December 1, 1955, a recommendation was duly made by plaintiff's commanding officer to the commanding general of Shaw Air Force Base to appoint a board of officers to determine whether plaintiff should be discharged pursuant to AFR 35-66, and such appointment was duly made by orders dated December 9, 1955. Commencement of proceedings of the board was delayed until March 28, 1956, because of hospitalization of plaintiff for a spinal operation at Maxwell Air Force Base, Alabama. 10. The duly appointed board of officers held its proceedings on March 28 and 29, 1956, at Shaw Air Force Base, South Carolina. The board consisted of five majors and a first lieutenant, the latter of whom was the legal member. Plaintiff was present in person and represented by counsel. The board received in evidence the affidavits of Hedgepeth, Howard, and Adams, previously mentioned in finding 3 herein, plaintiff's counsel stating that there were no objections thereto. The board recorder then offered into evidence a photostatic copy of a written statement, dated September 25, 1953, purportedly in the handwriting of and signed by one Larry R. Hart, in which the assertions were made that the affiant |