Opinion for the court filed by Judge DAVIS.
In March 1975, appellant Leonard P. Matlovich, after some twelve years of excellent service in the military, wrote to the Secretary of the Air Force, through his commanding officers, that he had concluded that his "sexual preferences are homosexual as opposed to heterosexual." He added that in his view his sexual preferences would in no way interfere with his Air Force duties and that he considered himself fully qualified for further military service. He asked that the provision in AFM 39-12 (Change 4) Oct. 21, 1970, para. 2-103, relating to the discharge of homosexuals be waived in his case.
As a result of the investigation, involuntary administrative discharge proceedings were begun against Matlovich on the ground of his homosexual activity. An Administrative Discharge Board met in September 1975 and held a four-day hearing at which appellant was represented by counsel. In addition to general testimony on homosexuality, appellant presented evidence on his own service in the Air Force and his ability to continue to give effective service. It was stipulated that he had committed homosexual acts during his current enlistment period. The Board so found and recommended that he be given a general discharge for unfitness, based on his homosexual acts.
Matlovich's commanding officer at Langley Air Force Base
Appellant immediately applied to the Air Force Board for the Correction of Military Records (AFBCMR) to overturn his discharge and also amended his complaint below (see note 3) to seek reinstatement, as well as a declaratory judgment that the discharge was invalid. The AFBCMR refused to correct appellant's records and the Secretary of the Air Force adopted that tribunal's findings and recommendations.
Thereafter both sides filed motions for summary judgment in the court below. It was stipulated, among other things, that the Air Force had in the past retained Air Force members on active duty who had engaged in homosexual activity.
After argument, Judge Gesell granted appellees' motion for summary judgment in an oral opinion. He held, first, that there is no constitutional right to engage in homosexual activity; second, that under the standards he deemed to govern judicial review of military determinations there is a rational basis for the Air Force policy of separating airmen found to have engaged in homosexual conduct; and, third, that appellant had not proved that an exception had to be made in his case. At the same time the judge recognized the superior quality of Matlovich's service
On this appeal from the District Court's award of judgment to the appellees, the parties first present to us the basic issue of whether private consensual homosexual activities between adults is protected by the Constitution. The Government urges that that question has been settled negatively by Doe v. Commonwealth's Attorney, 425 U.S. 901, 96 S.Ct. 1489, 47 L.Ed.2d 751 (1976), summarily affirming 403 F.Supp. 1199 (E.D.Va.1975); that ruling, though summary, is said to be binding on us under the rule of Hicks v. Miranda, 422 U.S. 332, 344-45, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975). Appellant's response is that, after Doe, the Supreme Court indicated that the issue was still open. See Carey v. Population Services Int'l, 431 U.S. 678, 688 n.5, 594 n.17, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977).
We do not reach these questions because a narrower problem looming before us requires remand of this case to the Air Force, and after further action by that Service renewed consideration by the District Court. The Air Force regulation expressly contemplates that exceptions can be made to the general policy of separating homosexuals (see note 1, supra), and the record shows that the Air Force has in the past retained members on active duty who had engaged in homosexual activity. With respect to Matlovich the Air Force said that it had considered whether to make an exception in his case but had decided against it. But what disturbs us is that it is impossible to tell on what grounds the Service refused to make an exception or how it distinguished this case from the ones in which homosexuals have been retained. The regulation (AFM 39-12, para. 2-103) gives only the most general of guidance when it limits exceptions to those "where the most unusual circumstances exist and provided that the airman's ability to perform military service has not been compromised." Also, "an exception is not warranted simply because the airman has extensive service" (emphasis added) or because of intoxication. No other pertinent standards are laid down.
In this instance the Administrative Discharge Board was given by its Legal Advisor only the most general of instructions on this point. After paraphrasing the exception provision of the regulation, the Legal Advisor said: "What constitutes most unusual circumstances cannot be defined with any great degree of precision. It must be based upon your experience with human nature, your understanding of the orderly conduct of the affairs of man, the very nature of the military environment as a separate and distinct segment of society with the full knowledge that military members are governed by a more strict set of rules of conduct and standards than is required and expected of the general public. The same rules apply to your understanding of what constitutes compromise of a military member's ability to perform military service. You must consider all these factors that have been legally presented to you during this hearing." No more light is shed by the Administrative Discharge Board's conclusory finding, without any real explanation, that no exception should be made.
In confirming the Correction Board's determination, the Secretary of the Air Force likewise said that an outstanding record was not enough and found no other "unusual circumstances" — but, again, he gave no hint (aside from a reference to instances involving intoxication, young airmen, and undue influence of a superior) what "unusual circumstances" there could be or what was missing in Matlovich's case.
What we have, then, is a serviceman with an admittedly outstanding record of considerable duration,
We are at sea as to the circumstances — aside from the exception for youths — in which the Air Force makes exceptions to its policy of eliminating homosexuals and when it refuses to make an exception. The absence of articulated standards, policies, or considerations — plus the absence of any reasoned explanation in this particular case — makes it impossible to decide whether or not there has been an abuse of discretion in this instance or whether improper factors have played a material role. We suppose that everyone would admit that the Air Force could not decide, under its all-inclusive but unarticulated rubric, to retain only black homosexuals or only white ones, or homosexuals of one religion but not of others, or homosexuals of one ethnic background but not of others, or only homosexuals who were proteges of senior officers. We do not suppose that such blatantly improper distinctions entered into the decision in this case, but the almost-total lack of specificity in the Air Force's determinations leads one to consider the possibility, for instance, whether Matlovich's failure of retention may have been affected by his "going public" with his homosexuality and the publicity surrounding his case, and that if his homosexuality had been discovered and handled by the Air Force, without public notice, the result might have been different.
We do not say at this stage, because we do not know, that the Air Force cannot justify appellant's discharge.
The normal rule where a discretionary administrative decision is to be reviewed by a court (other than on a de novo basis) is that the agency must give sufficient indication of the grounds for its exercise of discretion that the reviewing tribunal can appraise that determination under the appropriate standards of review (and the applicant for relief can challenge it). This basic concept has been reiterated time and again — in differing formulations and contexts but always centering on the need for the court, and the complaining party, to be given some helpful insight into the agency's reasoning. See, e. g., United States v. Chicago, M., St. P. & P. R.R., 294 U.S. 499, 510-11, 55 S.Ct. 462, 467, 79 L.Ed. 1023 (1935) ("We must know what a decision means before the duty becomes ours to say whether it is right or wrong"); SEC v. Chenery Corp., 332 U.S. 194, 196-97, 67 S.Ct. 1575, 1577, 91 L.Ed. 1995 (1947) ("It will not do for a court to be compelled to guess at the theory underlying the agency's action * * * ); Baltimore & Ohio R.R. v. Aberdeen & Rockfish R.R., 393 U.S. 87, 92, 89 S.Ct. 280, 21 L.Ed.2d 219 (1968); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285-86, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974); Dunlop v. Backowski, 421 U.S. 560, 571-72, 573-74, 95 S.Ct. 1851, 44 L.Ed.2d 377 (1975); Kleppe v. Delta Mining, Inc., 423 U.S. 403, 409, 96 S.Ct. 816, 46 L.Ed.2d 591 (1976); Environmental Defense Fund, Inc. v. Ruckelshaus, 142 U.S.App.D.C. 74, 86, 88, 439 F.2d 584, 596, 598 (1971); Greater Boston Television Corp. v. F.C.C., 143 U.S.App.D.C. 383, 393, 444 F.2d 841, 851 (1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971); Standard Rate & Data Service, Inc. v. United States Postal Service, 189 U.S.App.D.C. 315 at 324, 584 F.2d 473 at 482; Public Media Center v. F.C.C., 190 U.S.App.D.C. 425 at 434-435, 587 F.2d 1322 at 1331-1332 (1978).
The fundamental principle of reasoned explanation embodied in these (and comparable) decisions serves at least three interrelated purposes: enabling the court to give proper review to the administrative determination; helping to keep the administrative agency within proper authority and discretion, as well as helping to avoid and prevent arbitrary, discriminatory, and irrational action by the agency; and informing the aggrieved person of the grounds of the administrative action so that he can plan his course of action (including the seeking of judicial review).
We know of no reason why this umbrella principle should be inapplicable to the Air Force's decision not to retain appellant — as its regulation expressly contemplated that it could do. The explicit provision for exceptions to the overall policy of separating homosexuals is binding on the
The general Defense Department Regulations on enlisted administrative separations of all types — applicable to each of the armed services — describes an administrative discharge board (such as acted in this case) as "appointed to render findings based on facts obtaining, or believed to obtain, in a case and to recommend retention in the Service or discharge, with reason for and the type of separation or discharge certificate to be furnished." 32 C.F.R. § 41.3(h) (1976). The enlisted man entitled to or granted such a board can have counsel and present available witnesses (through oral testimony or by deposition). 32 C.F.R. § 41.5(c).
The same assumption that a reasoned explanation should exist and be given permeates the provisions on discharges for unsuitability and misconduct. The former prefaces its listing of specific grounds of unsuitability (including "homosexual or other aberrant sexual tendencies") with the general requirements that the type of discharge shall be "as warranted by the member's military record" and separation should be directed "when it has been determined that an individual is unsuitable for further military service." 32 C.F.R. § 41.7(g). Similarly, determination of the type of misconduct separation calls for appraisal of "the particular circumstances in a given case" and separation for specific types of misconduct (including "sexual perversion * * * homosexual acts") follow "when it has been determined that an individual is unqualified for further military service." 32 C.F.R. § 41.7(i).
These Defense Department directives are implemented and pointed up by Air Force regulations — including those contained in the portion of the Air Force Manual governing separation of enlisted personnel for unsuitability, unfitness or misconduct — which consistently stress the need for reasoned explanations and determinations in these circumstances. The letter of notification to the airman should give "specific reasons for the proposed discharge" which shall include an "itemization of the factual details which constitute recommendation for the allegations of unsuitability, unfitness or misconduct upon which recommendation for elimination is based." AFM 39-12, paras. 2-18(a)(3), 2-60(a)(3), 1-25(c)(2), 2-9(a)(3), 1-25(a)(2). The administrative discharge board is primarily a "fact-finding and recommending board." Its obligation is to "develop and review all information concerning the matter under consideration
Following the board proceedings, the convening authority gives his recommendation and forwards the complete file to the discharge authority. If the former disagrees with the board he must give his "reasons therefor." AFM 39-12, para. 1-31a. As for the discharge authority, the Air Force directives make it plain that he can agree with the board without making his own independent findings but that he cannot himself depart from the board to the detriment of the airman; if he thinks more severe action is warranted, or if he thinks higher authority should consider the matter in any case, he can forward the case "with his recommendation and reasons therefor" for Secretarial decision. AFM 39-12 (Change 6) May 12, 1972, at 29, Table 2-B-1, n.1.
In the light of these Defense Department and Air Force directives, we cannot escape the conclusion that the military has itself provided that in cases of this type a reasoned explanation should be made for any detrimental action ordered. The whole system of regulations is infused with this concept.
It is established, of course, that the federal courts have the power and the duty to inquire whether a military discharge was properly issued under the Constitution, statutes, and regulations. See, e. g., Harmon v. Brucker, 355 U.S. 579, 78 S.Ct. 433, 2 L.Ed.2d 503 (1958); Van Bourg v. Nitze, 128 U.S.App.D.C. 301, 307, 388 F.2d 557, 563 (1967); Hodges v. Callaway, 499 F.2d 417, 423 (5th Cir. 1974). In connection
Appellees seem to suggest that, in the nature of things, these principles cannot be used for the retention exception at issue here — that it is impossible for the service to specify "where the most unusual circumstances exist" and what constitutes a compromise of the airman's "ability to perform military service." We cannot accept such a contention. This problem is no more difficult than that presented in the conscientious objector cases,
There are two means by which an administrative entity can develop standards for rational action in an area of formal or informal adjudication. The first is by advance promulgation of written rules, directives or formulated criteria; the other is through case-by-case decision making. See Environmental Defense Fund, Inc. v. Ruckelshaus, 142 U.S.App.D.C. 74, 86, 88, 439 F.2d 584, 596, 598 (1971); Standard Rate and Data Service, Inc. v. United States Postal Service, 189 U.S.App.D.C. 315, 584 F.2d 473 (1978) (concurring opinion of Judge Leventhal). There are advantages to the former method — in Judge Leventhal's words, supra, "rulemaking assures that any modification in position will represent a generalized approach to a general problem, avoiding the uneasiness that results from the greater possibility of discrimination in a case-by-case approach" — but, as in Environmental Defense Fund, Inc. and Standard Rate & Data Service, Inc., supra, we leave to the Air Force the choice of the path it will pursue to clarify its policy on retention of homosexuals and the application of those standards to this case. In either event, the Secretary of the Air Force may do so through such permissible means as he considers appropriate.
Accordingly, the decision granting summary judgment to the Government is vacated and remanded with instructions to remand to the Air Force for further proceedings consistent with this opinion. Appellant can of course seek judicial relief from any adverse determination made on this remand.
Vacated and remanded.
Mutatis mutandis, precisely those words can be used in the present case. We are not and cannot be clear that improper or unequal considerations did not enter into the decision against retaining this appellant.
We find neither of these statements in any of the Air Force's determinations in this case — and it is understood by now that counsel's post hoc rationalizations cannot substitute for the agency's own failure. Van Bourg v. Nitze, supra, 128 U.S.App.D.C. at 309, 388 F.2d at 565; Standard Rate & Data Service, Inc. v. United States Postal Service, supra, 189 U.S.App.D.C. at 323, 584 F.2d at 481. Moreover, even if the general standard outlined by counsel were adopted by the service, we would expect some more specific spelling out of the reasons why the balance went against Sgt. Matlovich.