Spires V James

Case 3:16-cv-01905-VAB Document 1 Filed 11/18/16 Page 1 of 14
UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF CONNECTICUT
HUBERT EDWARD SPIRES,
Civil Action No.: _____
Plaintiff,
v.
November 18, 2016
DEBORAH LEE JAMES,
Secretary of the Air Force,
Defendant.
COMPLAINT
For nearly seventy years, the United States Air Force has denied Plaintiff H. Edward
Spires the dignity of an honorable discharge because he is gay. At age 91, Mr. Spires asks the
military to upgrade his discharge from Undesirable for reason of homosexuality to
Honorable, to reflect his faithful service to his country and his equality in the eyes of the
country he served. Mr. Spires is in poor health and nearly died several weeks ago while in the
intensive care unit for pneumonia. Upon his death, Mr. Spires wishes to be buried with military
honors, but this will be possible only with a discharge upgrade.
The Air Force discharged Mr. Spires in 1948. He was ineligible for a discharge
upgrade until 2011 when the Under Secretary of Defense issued a memorandum implementing
Congresss 2010 repeal of the Don't Ask, Don't Tell statute for the purposes of discharge
upgrades and record correction. Previously, that statute had prohibited gays and lesbians from
serving openly in the military. Since 2011, Mr. Spires has submitted two discharge upgrade
applications to the relevant Air Force board, one in 2014 and another in 2016. The Air Force
denied both applications on the ground that it cannot locate his records due to a 1973 fire. In fall
1
2016, the Air Force apparently elected to reconsider its most recent denial, but it has not
indicated by when it will complete its process.
In this action, Mr. Spires seeks judicial review of the Air Forces 2014 and 2016
decisions as arbitrary, capricious, unauthorized by law, and unreasonably delayed in violation of
the Administrative Procedure Act and of his rights under the Due Process Clause of the Fifth
Amendment to the U.S. Constitution. He requests an order directing the Air Force to upgrade his
discharge status to Honorable, or in the alternative, to complete its review within fourteen
days.
JURISDICTION AND VENUE
1.
This Court has jurisdiction under 28 U.S.C. 1331, 1361. This action arises
under the Fifth Amendment to the U.S. Constitution and the Administrative Procedure Act, 5
U.S.C. 706.
2.
Venue lies in this district pursuant to 28 U.S.C. 1391(e)(1)(C) as Plaintiff
resides in the District of Connecticut, no real property is involved in the action, and Defendant
Deborah Lee James is sued in her official capacity as an officer of the United States.
PARTIES
3.
Plaintiff H. Edward Spires is a veteran of the United States Air Force. He is a
citizen of the United States and resides in Norwalk, Connecticut.

4.
Defendant Deborah Lee James, Secretary of the Air Force, is sued here in her
official capacity. Defendant has the power to act through the Air Force Board for Correction of
Military Records (AFBCMR) to change any record of a former member of the Air Force when
necessary to correct an error or to remove an injustice.
FACTUAL ALLEGATIONS
5.
H. Edward Spires was born on November 8, 1925 in Lancaster, Ohio.
6.
In 1946, at age twenty, Mr. Spires enlisted in the United States Army Air Force.
He completed Basic Training at Sheppard Air Force Base in Wichita Falls, Texas.
7.
After Basic Training, Mr. Spires was assigned to be a Chaplains Assistant at
Lackland Air Force Base in San Antonio, Texas. His duties included typing letters to distressed
families, setting up chapels for services, playing the organ at Catholic masses, and assisting his
Chaplain with communication with other members of the Chaplaincy Corps. When not busy with
these obligations, Mr. Spires practiced the organ for upcoming Catholic services.
8.
Mr. Spires consistently received positive performance reviews and had no
disciplinary problems. In just a year and a half, he was promoted from Private to Sergeant, which
requires four separate promotions.
9.
In September 1947, Congress established the U.S. Air Force as a separate military
service branch, independent of the U.S. Army. Mr. Spires became a member of the Air Force,
although his duties and rank did not change.
10.
While stationed at Lackland, Mr. Spires maintained a large circle of friends in the
civilian community in San Antonio, many of whom were gay.

11.
Around October 1947, Mr. Spires recalls hearing rumors that the base
Commander, Colonel Hokes, called a meeting with aides to discuss cleaning up the base of
homosexuals.
12.
At an off-base Halloween party in October 1947, Mr. Spires dressed as That
New Oxydol Sparkle, a reference to a then-popular advertisement for laundry detergent.

Someone at the party recognized him and mistook his costume for drag.
13.
Shortly after the party, a Master Sergeant brought Mr. Spires to the Judge
Advocates office and asked Mr. Spires if he was a homosexual. Mr. Spires did not initially
answer, so the Master Sergeant threatened to throw him into the stockade and tell the other
prisoners that Mr. Spires was a homosexual.
14.
Over the course of an hour-long interrogation, the Master Sergeant repeatedly
asked Mr. Spires if he was gay and requested information about his relationships with many
people in the address book that the Master Sergeant confiscated from Mr. Spiress pocket. Mr.
Spires describes the event as horrific and unbearable.
15.
After an hour, the Master Sergeant offered to end the interrogation and let Mr.
Spires leave if he signed a statement saying that he had passively participated in homosexual
acts. Mr. Spires signed the statement in order to make the questioning stop, but refused to give
names of any other gay soldiers.
16.
The next week, Mr. Spires reported to the Judge Advocates office and a Board of
Inquiry. The Air Force held hearings to determine Mr. Spiress fitness for service. During the
hearings, the Air Force did not offer Mr. Spires defense counsel, so he acted as his own lawyer.
17.
As the base learned of Mr. Spiress upcoming court-martial, other soldiers
taunted, verbally assaulted, and threatened Mr. Spires with physical violence. Only Mr. Spiress
direct supervisor, Father Major John Habitz, stood up for him.
18.
After the hearings, Mr. Spiress chain of command sent him to a psychiatrist who
asked if he had ever had [his] dick sucked. When Mr. Spires replied yes, the psychiatrist
indicated to Mr. Spires that he had just outed himself as a homosexual.
19.
On or about March 17, 1948, the Air Force gave Mr. Spires an Undesirable
discharge for reason of homosexuality. He was given a set of civilian clothes and sent home to
his parents in Ohio.
20.
After being discharged, Mr. Spires felt ashamed and rarely spoke to anyone about
his military service. Out of fear that someone would discover the reason for his discharge, he
destroyed all of his military records in his possession, including dog tags, letters, and transcripts
of his court martial.
21.
Mr. Spires began working at F& R Lazarus & Company, a department store in
Columbus, Ohio doing interior and window display. He left Columbus in 1957 for New York
City, where he worked as a display manager at one of Bloomingdales branch stores.
22.
After working at Bloomingdales for three years, he started his own decorative arts
business called Fabulous Fakes, which turned out to be a success.

23.
In 1970, Mr. Spires moved to Connecticut with his partner, David Rosenberg,
after Mr. Rosenberg was offered a job as a high school English teacher in Greenwich.
24.
He closed Fabulous Fakes after 10 years and began working with the theater
department at Fairfield University. Mr. Spires enjoyed a second career in the theater, making
props and scenery for community theaters across Connecticut and Ohio. He retired in 1985, at
age sixty.
25.
On October 2, 2005, Mr. Spires and his partner of 47 years, David Rosenberg,
were united in a civil union. The ceremony was attended by a group of approximately 25 friends,
including Bob Duff, current Majority Leader of the Connecticut Senate.
26.
On January 8, 2009, several months after Connecticut legalized same-sex
marriage, Mr. Spires married Mr. Rosenberg in their Connecticut home. John Hunt, a justice of
the peace, officiated the ceremony.
27.
Mr. Spiress spouse is a veteran of the United States Army. Mr. Rosenbergs
command also questioned him about his sexuality, but he denied being gay and was allowed to
stay in the Army. Mr. Rosenberg received an Honorable discharge in 1956.

28.
On September 23, 2014, Mr. Spires submitted an application to the AFBCMR,
asking for his discharge to be upgraded to Honorable, due to the repeal of Dont Ask, Dont Tell
(DADT). This application complied in full with the requirements set out in 32 U.S.C. 865.3.
29.
By letter dated October 1, 2014, the Department of the Air Force, Air Force
Review Boards Agency, rejected Mr. Spiress application on the ground that his military records
could not be located (copy attached as Exhibit A).
30.
Mr. Spires then requested a full copy of his service records from the National
Personnel Records Center (NPRC), the division of the National Archives Records
Administration responsible for preserving military service records.
31.
In a letter dated December 4, 2015, the NPRC replied that [i]f the record were
here on July 12, 1973 it would have been in the area that suffered the most damage in the fire on
that date and may have been destroyed. The NPRC further explained that complete records
cannot be reconstructed (copy attached as Exhibit B).
32.
The July 12, 1973 fire at the NPRC destroyed approximately 16-18 million
Official Military Personnel Files (OMPF), including records of certain Air Force personnel
discharged between September 25, 1947 and January 1, 1964. National Archives at St. Louis,
https://www.archives.gov/st-louis/military-personnel/fie-1973.html.
33.
Despite being a subdivision of the National Archives and Records Administration,
which is responsible for maintaining our nations most important historical documents, including
military personnel records, the NPRC decided against equipping their paper records storage
facilities with sprinklers, smoke detectors, or firewalls. Walter W. Stender & Evans Walker, The
National Personnel Records Center Fire: A Study In Disaster, 37 Am. Archivist 521 (1974). A
1975 report by the Comptroller of the United States to the House Committee on Government
Operations regarding the fire suggests it was caused by careless smoking.
34.
The NPRC also provided Mr. Spires an NA Form 13038, Certification of Military
Service, to be used for any official purpose (copy attached as Exhibit C).
35.
With the Certification of Military Service, Mr. Spires submitted another
application to the AFBCMR in March 2016. On this application, Mr. Spires accidentally
checked the box stating that he had been in the Marines Corps instead of the Air Force.
36.
In April 2016, the AFBCMR returned Mr. Spiress application, stating that they
could not process Marines Corps applications (copy attached as Exhibit D).
37.
On September 9, 2016, the AFBCMR sent Mr. Spires another letter informing
him that it had assigned a docket number to his case, placed it in the Boards case management
system, and requested his records. However, the letter did not state a date by which it would
complete its adjudication and cautioned that obtaining records can be time consuming
depending on the complexity of the request and the availability of the records.
38.
On October 28, 2016, in response to an inquiry by the office of Rep. Joyce Beatty,
a U.S. Congresswoman from Ohio, the AFBCMR orally advised that it had rejected Mr. Spiress
second application as well.
39.
Notwithstanding the AFBCMRs April 2016 written denial and its October 2016
oral denial, on November 9, 2016, undersigned counsel spoke with AFBCMR Executive
Director John Vallario, who stated that the Board was still processing the 2016 application.
40.
In an email exchange between undersigned counsel and Mr. Vallario dated
November 15, 2016, Mr. Vallario stated that the Board would expedite review of Mr. Spiress
case but did not state a date by which the Board would complete its adjudication.
41.
By statute, the Board has eighteen months to adjudicate each application it
receives. 10 U.S.C. 1557(b).

42.
Mr. Spires is ninety-one years old and in poor health. A bad case of pneumonia
recently caused him to be hospitalized for three weeks and placed on a breathing tube for a week.
He completed breathing therapy at the hospital before he was able to return home three weeks
later. He continues to have difficulty breathing.
43.
He is not entitled to a burial in a VA national military cemetery or to have
military honors at his funeral due to his Undesirable discharge.

44.
Mr. Spires does not want to pass knowing he that he will not be honored with a
military burial and that the Air Force still refuses to acknowledge the sacrifices he made to serve
his country with honor.
STATUTORY AND REGULATORY BACKGROUND
45.
The Air Force discharged Mr. Spires on March 17, 1948. At the time, Army
Regulation (AR) 615-368 (as amended May 14, 1947) governed discharge on the basis of
homosexuality, because Army regulations still covered aspects of Air Force activity in 1948. See
Joint Army and Air Force Adjustment Regulation (JAAFAR) 1-11-40 (1948).
46.
Pursuant to AR 615-368, homosexuality was grounds for an Undesirable
discharge, otherwise known as discharge by reason of undesirable habits and traits of

character.
47.
A veterans discharge status affects eligibility for various benefits and support
services administered by the U.S. Department of Veterans Affairs (VA). Veterans with an
Undesirable discharge (today known as an Other than Honorable discharge) are generally
ineligible to receive disability, employment, housing, education, burial, and other VA benefits.
48.
Congress has authorized the Secretary of the Air Force, acting through the
AFBCMR, to correct the discharge of any former member of the Air Force. 10 U.S.C. 1552.
49.
An Air Force veteran may request a discharge upgrade from the AFBCMR to
correct an error or injustice in his discharge characterization. 32 C.F.R. 865.2. The application
must be made within three years of the date of discharge, but the AFBCMR may waive the
limitations period in the interest of justice. Id. 865.3.
50.
In the 1994 National Defense Authorization Act, Congress prohibited, for the first
time, discrimination against closeted homosexual members of the Armed Services and prohibited
the questioning of service members regarding their sexuality. Pub. L. No. 103-160, 571, 107
Stat. 1547 (1994). This policy was colloquially called Dont Ask, Dont Tell (DADT).
51.
Between 1994 and 2010, federal law stated: The prohibition against homosexual
conduct is a longstanding element of military law that continues to be necessary in the unique
circumstances of military service. 10 U.S.C. 654(a)(13) (2000).
52.
In 2010, Congress passed the Dont Ask, Dont Tell Repeal Act, which allowed
gays, lesbians, and bisexuals to serve openly in the United States Armed Forces. Pub. L. No.
111-321, 124 Stat. 3515 (2010).
53.
In accordance with the Dont Ask, Dont Tell Repeal Act, the Under Secretary of
Defense directed the Boards of Military Correction to normally grant requests for discharge
upgrades or changes to narrative reasons for discharge when the following conditions are met:
(1) the original discharge was based solely on DADT or a similar policy in place prior to
enactment of DADT and (2) there were no aggravating factors in the record, such as
misconduct. Memorandum dated Sept. 20, 2011, Under Secretary of Defense Clifford L.
Stanley (DADT Memo) (copy attached as Exhibit E).
54.
To apply for a discharge upgrade before the AFBCMR, an applicant must
complete a form DD 149, which should include, at least, (1) The name under which the member
served. (2) The members social security number or Air Force service number. (3) The
applicants current mailing address. (4) The specific records correction being requested. (5)
Proof of proper interest if requesting correction of another persons records. (6) The applicants
original signature. 32 U.S.C. 865.3.
55.
A veteran aggrieved by an agency action, including a final AFBCMR decision,
may seek judicial review in U.S. District Court pursuant to the Administrative Procedure Act. 5
U.S.C. 702, 706.
CLAIMS FOR RELIEF
FIRST CLAIM FOR RELIEF
Administrative Procedure Act, 5 U.S.C. 706
56.
The allegations of the preceding paragraphs are incorporated by reference as if
fully set forth herein.

57.
Defendants 2014 and 2016 denials of Mr. Spiress applications for a discharge
upgrade and change of reason for separation each constitutes final agency action.
58.
Defendants 2014 decision ignored its own rules when it returned Mr. Spiress
application for lack of a service number.

59.
Defendant denied Mr. Spiress 2014 application on the basis that he lacked
official records, despite the fact that the Department of Defense, through the NPRC, lost his
records when they were destroyed in a fire.
60.
Defendants April 2016 decision returning Mr. Spiress application because he
inadvertently marked the box for Marines rather than Air Force was arbitrary, capricious,
and unauthorized by law.
10
61.
Defendants 2016 denial failed to consider important evidence, including the
NPRC Certification of Military Service, which the NPRC stated may be used for any official
purpose.
62.
Defendant and the NPRC had a duty of care to preserve Mr. Spiress military
service records.
63.
Mr. Spires is entitled to the benefit of an adverse inference that the records
destroyed in the NPRC fire demonstrate that the ground for his undesirable discharge was
homosexuality, by operation of the spoliation of evidence doctrine.
64.
The basis for Mr. Spiress discharge, AR 615-368 (as amended May 1947), is
widely recognized as the regulation used to purge gay and lesbian servicemembers in the 1940s
and thereafter.
65.
Defendants 2014 and 2016 denials were contrary to the DADT Memo
implementing the repeal of 10 U.S.C. 654.

66.
Under the APA, a federal agency is required to act within a reasonable time . . .
to conclude a matter presented to it. 5 U.S.C. 555(b), and Congress authorized U.S. District
Courts to compel agency action that is unlawfully withheld or unreasonably delayed. 5 U.S.C.
706(1).
67.
To the extent Defendant is still reviewing Mr. Spiress March 2016 application, it
has unreasonably delayed adjudication of a matter that was first brought before it over two years
ago, does not involve an overly lengthy and voluminous record, and applies to a 91 year-old
veteran with failing health.
68.
Defendants decisions on Mr. Spiress 2014 and 2016 applicationss were
arbitrary, capricious, unauthorized by law, an abuse of discretion, and unreasonably delayed, all
11
in violation of the Administrative Procedure Act, 5 U.S.C. 706.

SECOND CLAIM FOR RELIEF
Fifth Amendment to the U.S. Constitution
Violation of Procedural Due Process
69.
The allegations of the preceding paragraphs are incorporated by reference as if
fully set forth herein.

70.
The due process protections of the Fifth Amendment to the U.S. Constitution
require that a federal administrative agency conduct adjudications in a fair and orderly manner.
71.
In rejecting Mr. Spiress 2014 application, the AFBCMR failed to follow its own
regulations setting forth minimum standards for discharge upgrade applications.

72.
Defendant did not conduct a fair adjudication of Mr. Spiress discharge upgrade
application because the AFBCMR denied his application on the basis of lack of service records,
when, in fact, the Department of Defense, through the NPRC, knew his records had been
destroyed in a fire.
73.
The AFBCMRs policy categorically prohibiting adjudications when records are
unavailable and its failure to inform veterans of alternate methods to obtain proof of service after
their records were lost in the fire at the NPRC in July 1973, substantially diminishes access to
adjudication for veterans whose records were affected by the fire.
74.
By failing to adequately inform veterans and implement a system of case-by-case
review, the AFBCMR has failed to give these veterans meaningful access to adjudications, as
required by the Department of Defenses directive that boards consider applications
individually and fashion relief appropriate to the facts and circumstances of each case.
Department of Defense Directive 1332.41 3.2.1 (March 8, 2004).
75.
Defendants rejection of the 2016 application disregarded material evidence and

12
failed to recognize an adverse inference by operation of the spoilation of evidence doctrine,

depriving Mr. Spires of fundamental fairness in administrative adjudications, as guaranteed by
the Due Process Clause of the Fifth Amendment.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff respectfully requests that this Court grant the following relief:
(1)
Order the Defendant to upgrade Mr. Spiress discharge status to Honorable and to
correct the narrative reasons for separation;
(2)
In the alternative, hold unlawful and set aside the AFBCMRs 2014 and 2016
decisions, and remand with instructions for further proceedings;
(3)
In the further alternative, order Defendant to complete its reconsideration of his

2016 application within fourteen days;
(4)
Award reasonable attorneys fees and costs; and
(5)
Grant such other and further relief this Court deems just and proper.
Dated: November 18, 2016

New Haven, Connecticut
Respectfully Submitted,
By: /s/ Michael J. Wishnie
Erin Baldwin, Law Student Intern
Miriam Becker-Cohen, Law Student Intern
Rachel Tuchman, Law Student Intern
Helen White, Law Student Intern
Aaron Wenzloff, ct28616
Michael J. Wishnie, ct27221
Veterans Legal Services Clinic
Jerome N. Frank Legal Services Org.
Yale Law School
P.O. Box 209090
New Haven, CT 06520-9090
t. (203) 432-4800
michael.wishnie@yale.edu
13
aaron.wenzloff@ylsclinics.org
Counsel for Plaintiff
14
Case 3:16-cv-01905-VAB Document 1-1 Filed 11/18/16 Page 1 of 11
EXHIBIT A
EXHIBIT B
EXHIBIT C
EXHIBIT D
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Document 1-1 Filed 11/18/16 Page 8 of 11

AF CARO
PAGE
20/33
DEPARTMENT OF THE AIR FORCE

. WASHINGTON DC
Office of the Assistant Secretary
19 Apr2016
AFBCMR
1500 West Perimeter Road
Joint Base Andrews NAF Washington, MD 20762-7002
Mr. Hubert E. Spites
6 Toilsom.e Ave
Norwalk, CT 06851
davarlen@aol .com
Dear Mr. Spires
This is in. response to your recent applica.ti.on to the Air Force Board for Correction of Military
Records (AFBCMR), DD .Form 149,-Docket # BC-2016-0130 l. This is not a decision by the Board and
your application is being rerurned because it cam1ot be processed as a viable application. We thoroughly
review all applications to ensure the m.andatoi'y infonnation is included; however, we have found the
following issue with your DD Fonn 149:
Your DD Form 149 application. for correcti.on of your records was received at the AFBCMR
on 28 March 2016. Since the ti.me in question is pertaining to your Marine Corps
enlistment, this board cannot make a decision on your case. Please forward your application
to the address l1ighlighted on the back of the DD FM 1.49.
Based on the foregoing we are closing your application to the AFBCMR since it is not viable.
When. you have taken the action indicated above, return your application to:
SAFIMRBR
550 C Street Westt Suite 40
Randolph AFB, Texas 78150-4742.
Upon receipt of the required information we will open your case for renewed processing. TMs is
not a decision of the Board. Additional infonna.tion from our web site:
http://WWW_.afpc.af.mil/afveteraninformationlAFBCMR, Administrative Operations
FL~l.44
Revi.sed 2 Dec J5
Attachment
DD Fon:n 149
r ----.--.
EXHIBIT E
CIVIL COVER SHEET
JS 44 (Rev. 08/16)
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFS
DEFENDANTS
Hubert Edward Spires
Deborah Lee James, Secretary of the Air Force
(b) County of Residence of First Listed Plaintiff
Fairfield
County of Residence of First Listed Defendant
(EXCEPT IN U.S. PLAINTIFF CASES)

NOTE:
(c) Attorneys (Firm Name, Address, and Telephone Number)
(IN U.S. PLAINTIFF CASES ONLY)

IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
Attorneys (If Known)
Michael J. Wishnie, Veterans Legal Services Clinic, Jerome N. Frank

Legal Services Organization, Yale Law School, P.O. Box 209090, New
Haven, CT 06520-9090; Phone: (203) 432-4800
II. BASIS OF JURISDICTION (Place an X in One Box Only)

1
U.S. Government
Plaintiff
Federal Question
(U.S. Government Not a Party)
U.S. Government
Defendant
Diversity
(Indicate Citizenship of Parties in Item III)
III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an X in One Box for Plaintiff

(For Diversity Cases Only)
PTF
Citizen of This State
1
Incorporated and Principal Place

of Business In Another State
Citizen or Subject of a
Foreign Country
Foreign Nation
Click here for: Nature of Suit Code Descriptions.
TORTS
110 Insurance
120 Marine
130 Miller Act
140 Negotiable Instrument
150 Recovery of Overpayment
& Enforcement of Judgment
151 Medicare Act
152 Recovery of Defaulted
Student Loans
(Excludes Veterans)
153 Recovery of Overpayment
of Veterans Benefits
160 Stockholders Suits
190 Other Contract
195 Contract Product Liability
196 Franchise
REAL PROPERTY
210 Land Condemnation
220 Foreclosure
230 Rent Lease & Ejectment
240 Torts to Land
245 Tort Product Liability
290 All Other Real Property
PERSONAL INJURY
310 Airplane
315 Airplane Product
Liability
320 Assault, Libel &
Slander
330 Federal Employers
Liability
340 Marine
345 Marine Product
Liability
350 Motor Vehicle
355 Motor Vehicle
Product Liability
360 Other Personal
Injury
362 Personal Injury Medical Malpractice
CIVIL RIGHTS
440 Other Civil Rights
441 Voting
442 Employment
443 Housing/
Accommodations
445 Amer. w/Disabilities Employment
446 Amer. w/Disabilities Other
448 Education
and One Box for Defendant)

PTF
DEF
Incorporated or Principal Place
4
4
of Business In This State
Citizen of Another State
IV. NATURE OF SUIT (Place an X in One Box Only)

CONTRACT
DEF
1
FORFEITURE/PENALTY
PERSONAL INJURY
365 Personal Injury Product Liability
367 Health Care/
Pharmaceutical
Personal Injury
Product Liability
368 Asbestos Personal
Injury Product
Liability
PERSONAL PROPERTY
370 Other Fraud
371 Truth in Lending
380 Other Personal
Property Damage
385 Property Damage
Product Liability
PRISONER PETITIONS
Habeas Corpus:
463 Alien Detainee
510 Motions to Vacate
Sentence
530 General
535 Death Penalty
Other:
540 Mandamus & Other
550 Civil Rights
555 Prison Condition
560 Civil Detainee Conditions of
Confinement
625 Drug Related Seizure

of Property 21 USC 881
690 Other
BANKRUPTCY
422 Appeal 28 USC 158
423 Withdrawal
28 USC 157
PROPERTY RIGHTS
820 Copyrights
830 Patent
840 Trademark
LABOR
710 Fair Labor Standards
Act
720 Labor/Management
Relations
740 Railway Labor Act
751 Family and Medical
Leave Act
790 Other Labor Litigation
791 Employee Retirement
Income Security Act
SOCIAL SECURITY
861 HIA (1395ff)
862 Black Lung (923)
863 DIWC/DIWW (405(g))
864 SSID Title XVI
865 RSI (405(g))
FEDERAL TAX SUITS

870 Taxes (U.S. Plaintiff
or Defendant)
871 IRSThird Party
26 USC 7609
IMMIGRATION
462 Naturalization Application
465 Other Immigration
Actions
OTHER STATUTES
375 False Claims Act
376 Qui Tam (31 USC
3729(a))
400 State Reapportionment
410 Antitrust
430 Banks and Banking
450 Commerce
460 Deportation
470 Racketeer Influenced and
Corrupt Organizations
480 Consumer Credit
490 Cable/Sat TV
850 Securities/Commodities/
Exchange
890 Other Statutory Actions
891 Agricultural Acts
893 Environmental Matters
895 Freedom of Information
Act
896 Arbitration
899 Administrative Procedure
Act/Review or Appeal of
Agency Decision
950 Constitutionality of
State Statutes
V. ORIGIN (Place an X in One Box Only)

1 Original
Proceeding
2 Removed from
State Court
6 Multidistrict
Litigation Transfer
(specify)
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
Remanded from
Appellate Court
4 Reinstated or
Reopened
5 Transferred from
Another District
8 Multidistrict
Litigation Direct File
Administrative Procedure Act, 5 U.S.C. 706
VI. CAUSE OF ACTION Brief description of cause:
Arbitrary and capricious denial of Plaintiff's discharge upgrade from Undesirable to Honorable
CHECK IF THIS IS A CLASS ACTION

VII. REQUESTED IN
UNDER RULE 23, F.R.Cv.P.
COMPLAINT:
VIII. RELATED CASE(S)
(See instructions):
IF ANY
JUDGE
DATE
CHECK YES only if demanded in complaint:

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JURY DEMAND:
DEMAND $
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SIGNATURE OF ATTORNEY OF RECORD
/s/ Michael J. Wishnie
11/18/2016
FOR OFFICE USE ONLY
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JS 44 Reverse (Rev. 08/16)
INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet
The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as
required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is
required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of
Court for each civil complaint filed. The attorney filing a case should complete the form as follows:
I.(a)
(b)
(c)
Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use
only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and
then the official, giving both name and title.
County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the
time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land
condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)
Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting
in this section "(see attachment)".
II.
Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X"
in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.
United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box.
Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment
to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes
precedence, and box 1 or 2 should be marked.
Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the
citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity
cases.)
III.
Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this
section for each principal party.
IV.
Nature of Suit. Place an "X" in the appropriate box. If there are multiple nature of suit codes associated with the case, pick the nature of suit code
that is most applicable. Click here for: Nature of Suit Code Descriptions.
V.
Origin. Place an "X" in one of the seven boxes.

Original Proceedings. (1) Cases which originate in the United States district courts.
Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441.
When the petition for removal is granted, check this box.
Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing
date.
Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.
Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or
multidistrict litigation transfers.
Multidistrict Litigation Transfer. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C.
Section 1407.
Multidistrict Litigation Direct File. (8) Check this box when a multidistrict case is filed in the same district as the Master MDL docket.
PLEASE NOTE THAT THERE IS NOT AN ORIGIN CODE 7. Origin Code 7 was used for historical records and is no longer relevant due to
changes in statue.
VI.
Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional
statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service
VII.
Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.
Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket
numbers and the corresponding judge names for such cases.
Date and Attorney Signature. Date and sign the civil cover sheet.

AO 440 (Rev. 12/09) Summons in a Civil Action
UNITED STATES DISTRICT COURT

for the
DistrictDistrict
of Connecticut
__________
of __________
Hubert Edward Spires
Plaintiff
v.
Deborah Lee James, Secretary of the Air Force
Defendant
)
)
)
)
)
)
)
Civil Action No.
SUMMONS IN A CIVIL ACTION

To: (Defendants name and address) Deborah Lee James, Secretary of the Air Force
A lawsuit has been filed against you.

Within 21 days after service of this summons on you (not counting the day you received it) or 60 days if you
are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.
P. 12 (a)(2) or (3) you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of
the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiffs attorney,
whose name and address are: Michael J. Wishnie
Veterans Legal Services Clinic
Jerome N. Frank Legal Services Organization
Yale Law School, P.O. Box 209090
New Haven, CT 06520-9090
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.
You also must file your answer or motion with the court.
CLERK OF COURT
Date:
Signature of Clerk or Deputy Clerk

AO 440 (Rev. 12/09) Summons in a Civil Action (Page 2)
Civil Action No.

PROOF OF SERVICE
(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))
This summons for (name of individual and title, if any)
was received by me on (date)
I personally served the summons on the individual at (place)

on (date)
; or
I left the summons at the individuals residence or usual place of abode with (name)
, a person of suitable age and discretion who resides there,
on (date)
, and mailed a copy to the individuals last known address; or
I served the summons on (name of individual)
, who is
designated by law to accept service of process on behalf of (name of organization)

on (date)
; or
I returned the summons unexecuted because
; or
Other (specify):
.
My fees are $
for travel and $
for services, for a total of $
0.00
I declare under penalty of perjury that this information is true.
Date:
Servers signature
Printed name and title
Servers address
Additional information regarding attempted service, etc:
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Spires V James

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Case 3:16-cv-01905-VAB Document 1 Filed 11/18/16 Page 1 of 14

UNITED STATES DISTRICT COURT

Case 3:16-cv-01905-VAB Document 1 Filed 11/18/16 Page 2 of 14

Venue lies in this district pursuant to 28 U.S.C. 1391(e)(1)(C) as Plaintiff

Plaintiff H. Edward Spires is a veteran of the United States Air Force. He is a

citizen of the United States and resides in Norwalk, Connecticut.

Case 3:16-cv-01905-VAB Document 1 Filed 11/18/16 Page 3 of 14

H. Edward Spires was born on November 8, 1925 in Lancaster, Ohio.

After Basic Training, Mr. Spires was assigned to be a Chaplains Assistant at

Mr. Spires consistently received positive performance reviews and had no

civilian community in San Antonio, many of whom were gay.

At an off-base Halloween party in October 1947, Mr. Spires dressed as That

New Oxydol Sparkle, a reference to a then-popular advertisement for laundry detergent.

Case 3:16-cv-01905-VAB Document 1 Filed 11/18/16 Page 4 of 14

Over the course of an hour-long interrogation, the Master Sergeant repeatedly

As the base learned of Mr. Spiress upcoming court-martial, other soldiers

Case 3:16-cv-01905-VAB Document 1 Filed 11/18/16 Page 5 of 14

business called Fabulous Fakes, which turned out to be a success.

On January 8, 2009, several months after Connecticut legalized same-sex

Case 3:16-cv-01905-VAB Document 1 Filed 11/18/16 Page 6 of 14

stay in the Army. Mr. Rosenberg received an Honorable discharge in 1956.

On September 23, 2014, Mr. Spires submitted an application to the AFBCMR,

Despite being a subdivision of the National Archives and Records Administration,

Case 3:16-cv-01905-VAB Document 1 Filed 11/18/16 Page 7 of 14

With the Certification of Military Service, Mr. Spires submitted another

In an email exchange between undersigned counsel and Mr. Vallario dated

Case 3:16-cv-01905-VAB Document 1 Filed 11/18/16 Page 8 of 14

By statute, the Board has eighteen months to adjudicate each application it

receives. 10 U.S.C. 1557(b).

He is not entitled to a burial in a VA national military cemetery or to have

military honors at his funeral due to his Undesirable discharge.

Pursuant to AR 615-368, homosexuality was grounds for an Undesirable

discharge, otherwise known as discharge by reason of undesirable habits and traits of

Case 3:16-cv-01905-VAB Document 1 Filed 11/18/16 Page 9 of 14

Case 3:16-cv-01905-VAB Document 1 Filed 11/18/16 Page 10 of 14

To apply for a discharge upgrade before the AFBCMR, an applicant must

A veteran aggrieved by an agency action, including a final AFBCMR decision,

The allegations of the preceding paragraphs are incorporated by reference as if

fully set forth herein.

application for lack of a service number.

Defendants April 2016 decision returning Mr. Spiress application because he

Case 3:16-cv-01905-VAB Document 1 Filed 11/18/16 Page 11 of 14

Defendants 2016 denial failed to consider important evidence, including the

implementing the repeal of 10 U.S.C. 654.

Defendants decisions on Mr. Spiress 2014 and 2016 applicationss were

Case 3:16-cv-01905-VAB Document 1 Filed 11/18/16 Page 12 of 14

in violation of the Administrative Procedure Act, 5 U.S.C. 706.

The allegations of the preceding paragraphs are incorporated by reference as if

fully set forth herein.

regulations setting forth minimum standards for discharge upgrade applications.

The AFBCMRs policy categorically prohibiting adjudications when records are

By failing to adequately inform veterans and implement a system of case-by-case

Defendants rejection of the 2016 application disregarded material evidence and

Case 3:16-cv-01905-VAB Document 1 Filed 11/18/16 Page 13 of 14

failed to recognize an adverse inference by operation of the spoilation of evidence doctrine,

In the further alternative, order Defendant to complete its reconsideration of his

Award reasonable attorneys fees and costs; and

Dated: November 18, 2016

Case 3:16-cv-01905-VAB Document 1 Filed 11/18/16 Page 14 of 14

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