470 F.

2d 201

Joachim HAGOPIAN, Plaintiff-Appellee,

v.
Major General William KNOWLTON et al., DefendantsAppellants.
No. 253, Docket 72-1941.

United States Court of Appeals,

Second Circuit.
Argued Sept. 20, 1972.
Decided Oct. 31, 1972.

Frank H. Wohl, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S.

Atty., Southern District of New York, of counsel), for defendantsappellants.
Joan Goldberg, New York City (Rabinowitz, Boudin & Standard, Michael
Krinsky, Herbert Jordan, New York City, of counsel), for plaintiffappellee.
Before KAUFMAN, SMITH and MANSFIELD, Circuit Judges.
MANSFIELD, Circuit Judge:

The Superintendent of the United State Military Academy at West Point (the
"Academy"), the Commandant of the Academy, and the Secretary of the Army
appeal pursuant to 28 U.S.C. Sec. 1292(a) from an order, 346 F.Supp. 29,
granting preliminary injunction restraining them from ordering Joachim
Hagopian, a former third-year cadet, to active duty and requiring them to
readmit him to the program of instruction and training at the Academy, which
for 170 years has been engaged, at government expense, in training volunteer
members of the military service in academic, military, character and physical
development with a view to their becoming career officers in the United States
Army.

Cadet Hagopian was separated from the Academy for deficiency in conduct
after receiving 107 demerits as of May 21, 1972, 5 demerits in excess of the

102-demerit allowance prescribed as a maximum for the period December 21,

1971 to June 7, 1972.1 Separation deprives Hagopian of the opportunity to
complete his college education at the Academy and thereby to become a
commissioned officer in the United States Army. It also subjects him to transfer
to active duty "in an appropriate enlisted grade" for not less than two nor more
than four years. 10 U.S.C. Sec. 4348(b) (1972 Supp.); Regulations for the
United States Military Academy 16.01e (March 15, 1971) (hereinafter
"Academy Reg.").
3

In this action Hagopian challenges, for alleged failure to comport with

minimum due process requirements, the procedures by which demerits for
Class III delinquencies 2 are initially awarded and the procedures followed by
the Academy's Academic Board in determining whether a cadet whose
accumulated demerit awards exceed his allowance for a demerit period should
be recommended for separation. We hold that the existing measures presently
available to a cadet for contesting an individual award of demerits are sufficient
to meet minimum standards of due process, but that when an accumulation of
awarded demerits renders the cadet subject to separation, he must be granted a
fair hearing before being separated, including the right to personally appear and
to present witnesses and other evidence in his behalf. As Cadet Hagopian was
denied these rights at the meeting of the Academic Board which recommended
his separation, we affirm the judgment below.

I.
4

At the outset we emphasize that we are not here being called upon to modify
the Academy's rigorous and exacting standards of discipline, behavior and
personal decorum for cadets, standards which have traditionally been
recognized as vital elements of a training program designed to develop the
mind, body and character of prospective career officers. The ultimate objective
of that training is to insure that when our country faces the all-important task of
defending itself, Academy graduates will provide military leadership under
stress, imbued with courage, a strong sense of duty, and a willingness to
subordinate personal self-interest to the overriding needs of their country. Such
important matters, which are part of the Army's conduct of military affairs and
the standards adopted by it to prepare men for military operations, should not
be interfered with by the judiciary. See Orloff v. Willoughby, 345 U.S. 83, 73
S.Ct. 534, 97 L.Ed. 842 (1953). Nor do we here seek to depart from that basic
principle. The narrow question before us relates to a different matter. The
Army's disciplinary standards are not here challenged. The question before us is
the narrow and limited one of what minimum procedural due process must be
accorded a cadet before he may be separated from the Academy.

Since the elements of due process are flexible, requiring consideration in each
case of a variety of circumstances, it is essential to have a full understanding of
the present operation of the disciplinary system at the Academy as it relates to
the separation of a cadet for deficiency in conduct of the type which formed the
basis of the Academy's decision in Hagopian's case. Preliminarily it should be
noted that the Academy's disciplinary system as a whole is characterized as
"correctional and educational in nature rather than being legalistic and
punitive."3 Its purpose is to teach the cadets "to be prepared to accept full
responsibility for all that they do or fail to do and to place loyalty to the service
above self-interest or loyalty to friends or associates."4 Toward these ends the
awards of demerits to cadets at the Academy serve a dual function. In the daily
educational context demerits are awarded so that cadets will be deterred from
committing infractions of the Academy's standards and, hence, will develop the
kind of discipline the Academy hopes to inculcate in future Army officers. In
the far less frequent context, however, the accumulation of demerits to the point
of conduct deficiency serves as a measure used to determine whether a cadet
should be expelled from the Academy.

The award of demerits for a Class III delinquency begins with a report by an
officer, civilian instructor, or another cadet,5 forwarded to the allegedly
delinquent cadet's Tactical Officer.6 The Tactical Officer may initiate the
delinquency report himself and did so here as to 7 offenses (out of a total of 16)
for which Hagopian received 46 demerits. The Tactical Officer notifies the
cadet of any report, and he may request an Explanation of Report or the cadet
may on his own submit one to contest the delinquency.7 The Tactical Officer
reviews reports (including his own) and explanations and takes final action on
all Class III offenses.8 The individual report form with a notation of the
demerits awarded is returned to the cadet and, in addition, a Weekly Cadet
Delinquency Report is posted each week to notify the cadet of his offenses for
the past week for which demerits were awarded, as well as to notify him of
cumulative totals for the month and for the demerit period.9

If a cadet wishes to appeal any demerit award listed, he must submit a request
for reconsideration to the Tactical Officer by 8:00 A.M. of the day following
the posting of the weekly report, and the award of demerits will be considered
by the next higher authority, the Regimental Commander.10 It is also possible
for the cadet to seek further review from the Superintendent of the Academy if
he feels he has been wronged,11 or to initiate a complaint, through his chain of
command, to the Inspector General.12 In the normal course, before a cadet
exceeds his demerit allowance, these latter avenues of appeal are likely to be
used only in rare instances.

The accumulation of demerits as a result of several individual awards may

activate the other aspects of the disciplinary system with which this case deals.
If a cadet exceeds his demerit allowance for a month or for the entire demerit
period, the Tactical Officer is directed to interview the cadet to determine that
all awards are correct and just and to have the cadet sign a form to that effect.13
On such occasions the Tactical Officer counsels the cadet with a view to
assisting him to mend his ways and to avoid further infractions. Where the
deficiency in conduct is based upon the cadet having exceeded his allowance
for a full demerit period, as here, his case is forwarded through the Regimental
Commander and the Commandant of Cadets to the Academic Board,14 which
may recommend probation only if the cadet is one "whose potential warrants
retention" and which otherwise must recommend separation.15 Formal approval
of a recommendation to separate a cadet is finally taken by the Secretary of the
Army.16

The Academic Board, which makes the fateful recommendation to separate or

retain on probationary status a cadet deficient in conduct, is composed of the
Superintendent, the Dean of the Academic Board, the Commandant of Cadets,
and the heads of the several departments, totalling 18 members.17 This body has
general responsiblity, inter alia, for decisions on admissions, qualifications for
receipt of diplomas, curriculum, and probation and separation of cadets.18 A
cadet who is being considered for separation by the Board for deficiency in
conduct19 may submit any additional written material for the Board to consider
in reaching its decision,20 but may not appear before the Board personally or
through counsel and may not present witnesses in his behalf.

II.
10

On June 8, 1972, the Academic Board recommended that Cadet Hagopian be

separated from the Academy, and on June 27, 1972, the Secretary of the Army
approved the separation. This lawsuit followed on June 30, 1972, seeking
preliminary and permanent relief based on an alleged denial of procedural due
process. Hagopian concedes that the demerit award and separation procedures
prescribed by the Regulations were followed in his case and that he submitted
only one request for reconsideration of an award (which was successful) prior
to May 22 and 23, 1972, at which time he sought to dispute the factual basis for
incidents which had occurred on January 18, April 27, and May 21, 1972. The
latter requests for reconsideration were rejected. His deficiency in conduct was
referred to the Academic Board with recommendations of his Tactical Officer
and his Regimental Commander that he be separated. On May 25, 1972,
Hagopian signed the form which indicated that all reports were just and correct
and that he had submitted all required requests for reconsideration.

11

Hagopian was notified by letter dated May 31 that his deficiency in conduct
had been referred to the Academic Board for possible separation and that he
had the right to present written evidence not previously submitted. He availed
himself of this opportunity by a letter dated June 2, 1972, in which he did not
dispute his delinquencies but appealed for another chance because he now
realized his mistakes in "bucking the system." In his affidavit to the district
court Hagopian alleged that shortly after he was notified on June 7 that the
Board would be meeting the following day to consider his case he phoned the
Academy legal department seeking advice and was told by one of the attorneys
that they "were discouraged from counselling cadets who were called to appear
before conduct boards." Since Hagopian was not to appear before the
Academic Board, it is unclear whether the term "conduct boards" was meant to
include the Academic Board meeting to consider separation, or referred only to
boards convened to adjudicate demerit awards for Class I and II
delinquencies.21 1] In any event, no legal advice was given and Hagopian
confined his written efforts to the letter appealing for another chance,
presumably hoping that his promise to do better in the future might persuade
the Board members to find him to be a cadet "whose potential warranted
retention." It is undisputed, however, that if any of the demerit awards which
Hagopian challenged in his requests for reconsideration in May or the demerit
award he challenged for the first time in the district court22 had been set aside
by the Academic Board at its meeting, he would not have exceeded his
allowance for the demerit period and would, therefore, not have been subject to
separation for deficiency in conduct.

III.
12

Upon this appeal the district court's grant of preliminary relief could be
affirmed solely for failure to show any abuse of discretion on the part of the
district court, Safeway Stores, Inc. v. Safeway Properties, Inc., 307 F.2d 495,
500 (2d Cir. 1962); Dino De-Laurentiis Cinematografica, S.p.A. v. D-150, Inc.,
366 F.2d 373 (2d Cir. 1966), since the relative hardships of granting or
withholding relief tip decidedly in favor of Hagopian, who will suffer
irreparable harm if the preliminary injunction is vacated, and he has not only
raised issues presenting "a fair ground for litigation," Hamilton Watch Co. v.
Benrus Watch Co., 206 F.2d 738, 740 (2d Cir. 1953), but has demonstrated a
probability of success on the merits. Checker Motors Corp. v. Chrysler Corp.,
405 F.2d 319 (2d Cir.), cert. denied, 394 U.S. 999, 89 S.Ct. 1595, 22 L. Ed.2d
777 (1969). However, no material issues of fact appear and the parties seemed
to agree upon the argument of the appeal that the dispute centers on the
sufficiency, as a matter of law, of the Academy's procedures. Thus, despite the
absence of an agreement to consolidate trial on the merits with the hearing of

the application for preliminary relief, as permitted by Rule 65, F.R.Civ.P., we

accede to the obvious necessity for a delineation of the basic contours of the
due process requirements to be applied to the Academy's disciplinary
procedures rather than defer that decision until a further appeal which would
follow the grant of permanent relief.
13

In approaching the question of what process is due before governmental action

adversely affecting private interests may properly be taken, it must be
recognized that due process is not a rigid formula or simple rule of thumb to be
applied undeviatingly to any given set of facts. On the contrary, it is a flexible
concept which depends upon the balancing of various factors, including the
nature of the private right or interest that is threatened, the extent to which the
proceeding is adversarial in character, the severity and consequences of any
action that might be taken, the burden that would be imposed by requiring use
of all or part of the full panoply of trial-type procedures, and the existence of
other overriding interests, such as the necessity for prompt action in the
conduct of crucial military operations. The full context must therefore be
considered in each case. It could hardly be contended, for instance, that
disciplinary action on the field of battle must conform to procedures applicable
to the demotion of a civilian employee on the home front.

14
"Whether
the Constitution requires that a particular right obtain in a specific
proceeding depends upon a complexity of factors. The nature of the alleged right
involved, the nature of the proceeding, and the possible burden on that proceeding,
are all considerations which must be taken into account." Hannah v. Larche, 363 U.
S. 420, 442, 80 S.Ct. 1502, 1515, 4 L. Ed.2d 1307 (1960).
15

With respect to decisions made by Army authorities, "[o]rderly government

requires us to tread lightly on the military domain, with scrupulous regard for
the power and authority of the military establishment to govern its own affairs
within the broad confines of constitutional due process", Friedberg v. Resor,
453 F.2d 935, 937 (2d Cir. 1971). See Orloff v. Willoughby, 345 U.S. 83, 9394, 73 S.Ct. 534, 97 L. Ed. 842 (1953); Cortright v. Resor, 447 F.2d 245 (2d
Cir. 1971), cert. denied, 405 U.S. 965, 92 S.Ct. 1172, 31 L.Ed.2d 240 (1972).23
Accordingly we agree with appellants that in deciding what process is due in
both phases of this case, we should not apply automatically the full dress
standards required for hearings to revoke probation, Mempa v. Rhay, 389 U.S.
128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), or parole, United States ex rel. Bey
v. Connecticut State Bd. of Parole, 443 F.2d 1079 (2d Cir.), vacated as moot,
404 U.S. 879, 92 S.Ct. 196, 30 L.Ed.2d 159 (1971), or for proceedings which
have been described as involving the "operation of the criminalization and
incarceration process beyond the determination of guilt at trial," Sostre v.

McGinnis, 442 F.2d 178, 196 (2d Cir. 1971), cert. denied Oswald v. Sostre, 405
U.S. 978, 92 S.Ct. 1190, 31 L.Ed.2d 254 (1972). The factors involved in
expulsion from a government-service academy also differ substantially from
those found significant in proceedings to challenge the standards of due process
required for termination of welfare payments, Goldberg v. Kelly, 397 U.S. 254,
90 S.Ct. 1011, 25 L.Ed.2d 287 (1967); or of tenancy in public housing, Escalera
v. New York City Housing Authority, 425 F.2d 853 (2d Cir.), cert. denied, 400
U. S. 853, 91 S.Ct. 54, 27 L.Ed.2d 91 (1970).
16

At first blush separation of a cadet from the Academy appears similar to the
involuntary activation of a ready reservist for failure to perform satisfactorily in
the reserve, for which no hearing is required. See O'Mara v. Zebrowski, 447
F.2d 1085 (3d Cir. 1971); Antonuk v. United States, 445 F.2d 592 (6th Cir.
1971); Ansted v. Resor, 437 F.2d 1020 (7th Cir.), cert. denied, 404 U.S. 827, 92
S.Ct. 61, 30 L.Ed.2d 56 (1971). In both cases the immediate consequenceassignment to active duty-is the same. However, a closer study discloses a vast
difference in the sanctions ultimately to be applied. Although a ready reservist
may, without hearing, be ordered to active duty upon a determination by his
commanding officer, within his statutory discretion, that the reservist has not
participated satisfactorily in the reserve program (e. g., for failure to attend drill
sessions)24 the consequence is limited primarily to changing the form of service
required to satisfy his voluntarily assumed military obligation from reserve to
active. While it is true that such a reservist could be ordered to active duty even
if his total period of enlistment would be extended thereby, see Fox v. Brown,
402 F.2d 837, 841 (2d Cir. 1968), cert. denied, 393 U.S. 1114, 89 S.Ct. 1007,
22 L.Ed.2d 120 (1969), any extension which might possibly occur is still
confined at most to the amount of time necessary for the reservist to serve a
total of 24 months on active status. 10 U.S.C. Sec. 673a(b) (1972 Supp.). The
Academy cadet, on the other hand, faces the far more severe sanctions of being
expelled from a course of college instruction which he has pursued with a view
to becoming a career officer and of probably being forever denied that career.

17

Because of the factors controlling what process is due usually vary from case to
case, prior decisions on the subject cannot ordinarily furnish more than general
guidelines which might give the reader a "feel" for what is fundamentally fair
in a particular instance. In this case, however, we have the unusual benefit and
guidance of a decision of this Court in Wasson v. Trowbridge, 382 F. 2d 807
(2d Cir. 1967), which dealt with the requirements of procedural due process in a
factual context that is strikingly similar to the one with which we are now
faced. Wasson was a third-year student at the Merchant Marine Academy at
Kings Point, New York, whose dismissal, after a hearing at which he was
allowed to appear, was recommended by the Senior Board of Aptitude,

Conduct and Discipline Review following his accumulation of demerits in

excess of the maximum allowance. That Board, similar to the Academic Board
here, had the function of determining "whether or not the Cadet should be
retained." Wasson had exceeded his demerit allowance and thereby became
subject to dismissal because, in addition to demerits previously accumulated, he
had been awarded a substantial number of demerits at an earlier hearing
concerning a Class II offense. 25 He challenged the denial of counsel at both
hearings and charged that members of the panel which awarded the demerits
had participated in the investigation of the Class II offense against him. He
further alleged that he had been denied a continuance to obtain favorable
witnesses, had been given inadequate time to prepare to defend himself at the
hearing, and had never been fully advised of the evidence against him. We
reversed the district court's denial of a hearing, which had been based on the
ground that the allegations of the complaint did not amount to a denial of due
process, and held that Wasson was entitled to an evidentiary hearing on
whether "the procedures used against [him] comported with due process of
law." 382 F.2d at 813. In doing so, the Court took note of the special context in
which procedures leading to expulsion of a cadet from a military service
academy operate and set forth in broad outline and in language particularly
relevant to the present case the minimum standards of due process which would
be applicable in such a setting:
18
"While
the government must always have a legitimate concern with the subject
matter before it may validly affect private interests, in particularly vital and sensitive
areas of government concern such as national security and military affairs, the
private interest must yield to a greater degree to the governmental. . . . Few decisions
properly rest so exclusively within the discretion of the appropriate government
officials than the selection, training, discipline and dismissal of the future officers of
the military and Merchant Marine. Instilling and maintaining discipline and morale
in these young men who will be required to bear weighty responsibility in the face
of adversity-at times extreme-is a matter of substantial national importance scarcely
within the competence of the judiciary. And it cannot be doubted that because of
these factors historically the military has been permitted greater freedom to fashion
its disciplinary procedures than the civilian authorities.
19 conclude, therefore, that due process only requires for the dismissal of a Cadet
"We
from the Merchant Marine Academy that he be given a fair hearing at which he is
apprised of the charges against him and permitted a defense. . . . For the guidance of
the parties, . . . the rudiments of a fair hearing in broad outline are plain. The Cadet
must be apprised of the specific charges against him. He must be given an adequate
opportunity to present his defense both from the point of view of time and the use of
witnesses and other evidence. We do not suggest, however, that the Cadet must be
given this opportunity both when demerits are awarded and when dismissal is

considered. The hearing may be procedurally informal and need not be adversarial.
20. . The requirement of counsel as an ingredient of fairness is a function of all of the
".
other aspects of the hearing. Where the proceeding is non-criminal in nature, where
the hearing is investigative and not adversarial and the government does not proceed
through counsel, where the individual concerned is mature and educated, where his
knowledge of the events . . . should enable him to develop the facts adequately
through available sources, and where the other aspects of the hearing taken as a
whole are fair, due process does not require representation by counsel." 382 F.2d at
812 (emphasis supplied).
21

We find these standards to be of persuasive and controlling guidance in the

remarkably similar context with which we are here confronted. Applying them
here, we have little difficulty in sustaining the validity of the Academy's
procedures for awarding demerits for individual Class III delinquencies.
However, we find inadequate the present procedures which are followed in
separating from the Academy cadets who have exceeded their demerit
allowance for a prescribed period.

22

We view the award of demerits for each Class III delinquency not as the
conduct of a military operation exempt from interference but as part of the daily
operation of the Academy's disciplinary system in which the Tactical Officer is
responsible for instilling disciplined conduct in the cadets he supervises in a
manner similar to the responsibilities of public school teachers to educate their
students. Of course the student voluntarily at a military academy must be
prepared to subordinate his private interests to the proper functioning of the
educational institution he attends to a greater degree than the student at a
civilian public school. However, although the Tactical Officer must decide
whether demerits are to be awarded, he is not an adversary of the cadet but an
educator who shares an identity of interest with the cadet, whom he counsels
from time to time as a future leader. See e. g., Menechino v. Oswald, 430 F.2d
403 (2d Cir. 1970). Furthermore, the individual award of demerits invokes at
most the relatively minor immediate consequence of disciplinary punishments
or withdrawal of weekend or other privileges.26 We have found more serious
sanctions, such as a 15-day suspension from class, still not sufficient to
necessitate a hearing. Farrell v. Joel, 437 F.2d 160 (2d Cir. 1971). Not until the
cadet accumulates a total of demerits in excess of that allowed for the entire
five-month period is he subject to expulsion.

23

It would be an undue burden to impose on the routine administration of the

Academy's disciplinary system the requirements of a hearing, with the
attendance of the cadet and witnesses, before an adjudication of demerits for

such infractions as a dirty uniform or an unintentional failure to comply with

instructions were permitted. Short of expulsion, the procedures available to a
cadet (explanation of a reported delinquency, request for reconsideration, and
appeal to superior authorities) are ample to satisfy the demands of due process,
even with respect to demerits awarded by the Tactical Officer for delinquencies
reported by the Tactical Officer himself. This is so because the sanctions
imposed are slight, the nature of the proceeding is corrective and educational,
and the burden on the proceedings which a hearing would impose is excessive,
see Hannah v. Larche, supra, 363 U.S. at 442, 80 S.Ct. 1502.
24

The demands of due process, however, are greater when the accumulation of
demerits subjects the cadet to the severe sanction of expulsion rather than a
form of milder discipline, see Farrell v. Joel, supra, 437 F.2d at 162. Cf. Opp
Cotton Mills, Inc. v. Administrator, 312 U.S. 126, 152-153, 657, 61 S. Ct. 524,
536, 85 L.Ed. 624 (1941) ("The demands of due process do not require a
hearing, at the initial stage or at any particular point or at more than one point
in an administrative proceeding so long as the requisite hearing is held before
the final order becomes effective.") Although the Court in Wasson declined to
apply automatically the hearing requirements set forth in Dixon v. Alabama
State Bd. of Educ., 294 F.2d 150 (5th Cir.), cert. denied, 368 U.S. 930, 82 S.Ct.
368, 7 L.Ed.2d 193 (1961) (expulsion of a civilian student for misconduct from
a tax-supported college) to the expulsion of a cadet from a military service
academy, it did make plain that a fair hearing would be required at some point
before a cadet could be separated. Appellants maintain that "holding a full
hearing on accumulated demerits for fifteen minor infractions would be nothing
more than a meaningless litany." We disagree. The Academic Board has two
functions when it is convened to consider separation. First it must determine
whether the cadet in question has accumulated an excessive amount of validly
awarded demerits over the course of the demerit period. If so, it must then
determine whether the cadet's "potential warrants retention," so as to allow
probation rather than separation. Since the demerit period roughly coincides
with the relatively short duration of a college semester, the opportunity to
appear and contest the factual basis of demerits previously awarded without a
hearing would not be lost to the memory of either the cadet or available
witnesses. Perhaps more importantly, with respect to certain of the demerit
awards and especially with respect to the subjective evaluation of the cadet's
potential, the opportunity to personally appear and present his case may affect
considerably the credibility which the members of the Academic Board attach
to the cadet's appeal. With a cadet population of several thousand, it is unlikely
that the members of the Board, drawn from several departments, would have a
sufficient acquaintanceship with the cadet to be able to appraise him or
determine his "potential for retention" merely on the basis of his letter to it. The

opportunity to bring witnesses to appear in his behalf may also strengthen the
impact of his case above the frail impression which a written submission would
make. "Particularly where credibility and veracity are at issue, . . . written
submissions are a wholly unsatisfactory basis for decision", Goldberg v. Kelly,
397 U.S. 254, 269, 90 S.Ct. 1011, 1021, 25 L.Ed.2d 287 (1970).
25

While we adhere to the admonition in Wasson that the "hearing may be

procedurally informal and need not be adversarial," we conclude that at a
hearing at which Academy officials will determine whether or not a cadet will
be expelled the cadet must be allowed to appear and present evidence,
including witnesses, on his behalf. The importance of informality in the
prodeeding militates against a requirement that the cadet be accorded the right
to representation by counsel before the Academic Board. Unlike the welfare
recipient who lacks the training and education needed to understand his rights
and express himself, the cadet should be capable of doing so. However, we
reject any intimation that Cadet Hagopian was not entitled to seek advice or
retain counsel to assist him in preparing his defense at the hearing.

26

With respect to Hagopian's demand for the right to inspect the

recommendations of his Tactical Officer and Regimental Commander
recommending separation, which were before the Academic Board when it
made its decision, we agree with the Court's conclusion in Wasson that "
[p]articularly on the question of [his] fitness to remain a Cadet, he is not entitled
to see the confidential opinions of members of the faculty", 382 F.2d at 813.
However this renders it even more important for the cadet to have an
opportunity to appear and present the considerations in his favor. Nor do we
believe, as appellants suggest, that providing a fair hearing when a cadet
becomes subject to dismissal would deprive the informal procedures for
contesting Class III demerit awards when awarded of their impact or utility.
Few cadets are likely to be as foolhardy as to risk awaiting the convening of the
Academic Board to consider their expulsion from the Academy simply because
they will now be entitled to a fair hearing before that body. And because the
meetings of the Academic Board to consider expulsion of deficient cadets are
infrequent,27 the additional steps required here should have a minimal impact
on the functioning of the Academy and virtually none on the operation of the
Academy's disciplinary system.

27

The foregoing is intended merely to convey, for the guidance of the Academy,
the rudiments of due process required for disciplinary proceedings. It will be
for the Academy within this rough framework to determine the precise
procedures to be employed. In the meantime the judgment of the district court
is affirmed.

The demerit allowance is determined for each cadet class according to a

mathematical formula which depends on the number of days the class is on
duty status during each of the two demerit periods per year. Regulations for the
United States Corps of Cadets, 407, 408 (1971) (hereinafter "Cadet Reg."). The
Academy year is divided into two demerit periods. A cadet who exceeds his
demerit allowance for a full demerit period is deficient in conduct and may be
separated from the Academy, Cadet Regs. 408C, 409C, or placed on probation,
depending upon whether the Academic Board concludes that notwithstanding
his demerits his "potential warrants retention."

Under the Academy's disciplinary system, delinquencies are classified

according to seriousness. Class I delinquencies, for which more than 15
demerits may be awarded, and Class II delinquencies, for which 9 to 15 merits
may be awarded, Cadet Reg. 403, require action by a board within the
Department of Tactics. Disciplinary System-Standing Operating Procedure Sec.
28 (hereinafter "Disciplinary SOP"). Though part of Hagopian's demerit total
resulted from the award of 25 demerits for a Class I delinquency during this
period, he does not challenge the procedure which led to this award. Rather, he
challenges the procedure followed in awarding him the remainder of his
demerit total which arose from fifteen separate Class III delinquencies. Class
III delinquencies are of a minor nature, e. g., possession of unauthorized articles
or uniform violations, and 1 to 8 demerits may be awarded for each
delinquency by the Company Tactical Officer without the need for board
action, Cadet Reg. 403C

Cadet Reg. 401

Id

Cadet Reg. 404

Disciplinary SOP Sec. 14b

Id. Secs. 14d, 19; Cadet Reg. 405

Disciplinary SOP Sec. 14e. He refers Class I and II offenses for appropriate
board action

Id. Secs. 14h, 16a

10

Id. Sec. 20

11
12
13

Cadet Reg. 201e

Cadet Reg. 320
Disciplinary SOP Sec. 21

14

Id

15

Dean's Standing Operating Procedure, Item XXIV c. 3 (May 12, 1969)

16

Academy Reg. 16.09

17

Academy Reg. 3.01

18

Id. 3.06

19

The Board considers deficiencies in conduct in the same manner as it treats

deficiencies in studies. Academy Reg. 9.05

20

Disciplinary SOP Sec. 21; Rules of the Academic Board 5.01b

21

See note 2 supra

22

Cadet Hagopian received 5 demerits each for being in need of a haircut on both
the 25th and 26th of April. He raised the objection below that he did not have
the opportunity to rectify the cause of the first delinquency before it resulted in
a second demerit award, although he had not raised this objection prior to his
separation

23

Of course, where military "regulations prescribed specific steps to be taken to

insure due process they must be substantially observed," Friedberg v. Resor,
supra, 453 F.2d at 938. See United States ex rel. Donham v. Resor, 436 F.2d
751 (2d Cir. 1971). No claim is made in this case that the Academy failed to
follow its own procedures

24

See Winters v. United States, 281 F. Supp. 289 (E.D.N.Y.), affd., 390 F.2d 879
(2d Cir. 1968); Fox v. Brown, 402 F.2d 837 (2d Cir. 1968), cert. denied, 393
U.S. 1114, 89 S.Ct. 1007, 22 L.Ed.2d 120 (1969). See also Raderman v. Kaine,
411 F.2d 1102 (2d Cir.), petition for cert. dismissed, 396 U.S. 976, 90 S.Ct.
467, 24 L.Ed.2d 447 (1969). Compare United States ex rel. Schonbrun v.
Commanding Officer, 403 F.2d 371 (2d Cir. 1968), cert. denied, 394 U.S. 929,
89 S.Ct. 1195, 22 L.Ed.2d 460 (1969) (reservist activated with unit denied
judicial review of rejection of his claim for hardship exemption)

25

The classification of offenses at the Merchant Marine Academy is substantially

similar to the one prescribed at West Point. See note 2 supra

26

Cadet Reg. 409

27

Upon oral argument counsel for the Government advised that expulsion
hearings number approximately 8 per year