Not Reported in F.Supp.

                       Justin C. ELZIE, Plaintiff,
                                   v.
              The HONORABLE LES ASPIN, et al., Defendants.
                          No. CIV. A. 93-1853.
           United States District Court, District of Columbia.
                              Nov. 2, 1993.
                                  ORDER

     SPORKIN
     *1 This matter is before the court on Plaintiff's Application for Preliminary Injunction. 
Plaintiff, Justin Elzie, a sergeant in the United States Marine Corps, brings this action
against Defendants claiming that his discharge from the Marine Corps is unlawful
because it was based solely on his declaration that he is a homosexual.  Plaintiff filed his
Application for Preliminary Injunction on September 5, 1993 seeking the following relief: 
1) restoration to active duty in the Marine Corps;  2) an injunction against Defendants
from discharging him from the Marine Corps during the pendency of this action, on the
basis of his status as a homosexual;  and 3) restoration to full participation in the
Voluntary Separation Incentive and Special Separation Benefit ("VSI/SSB") program.
     On October 25, 1993, this Court issued an order, stipulated and agreed to by the
parties, that restored Plaintiff to active duty in the Marine Corps and treated him as the
Marine Corps would treat any other Marine.  It is presumed that this agreement by the
parties was generated by the decision in Meinhold v. Department of Defense, 808 F.Supp.
1455 (C.D.Cal.1993) which enjoined the Department of Defense "from discharging or
denying enlistment to any person based on sexual orientation in the absence of sexual
conduct which interferes with the military mission of the armed forces of the United
States."  Id., at 1458.
     On October 29, 1993, the United States Supreme Court stayed that injunction, as
it applied to persons other than Mr. Meinhold, pending disposition of the appeal by the
Ninth Circuit.  Department of Defense v. Meinhold, 1993 U.S. Lexis 6922 (Oct. 29, 1993). 
Once the Supreme Court lifted the injunction, the Department of Defense notified Plaintiff
that it intended to reinstitute its action against him and remove him from active duty status
in the Marine Corps. This prompted Plaintiff to seek to have his Application for Preliminary
injunction heard.  Accordingly, this hearing was held on November 1, 1993.
     The Court finds it necessary to issue a temporary restraining order to give it time
to review the important issues presented by this case.  It is clear from the hearing that
Plaintiff's being placed on "inactive duty" will deprive him of very valuable rights to which
he would otherwise be entitled as a Marine with 11 years of exemplary service to his
country.  For example, it is clear that upon being discharged he will lose his medical
benefits, his salary, his opportunity to participate in the VSI/SSB program, and a portion
of his retirement pay.  The Court believes that Plaintiff has made a strong showing that
he has been deprived of rights under the First and Fifth amendments to the United States
Constitution.  Because of these findings, namely, a strong showing on the merits and the
possibility of irreparable injury, the Court issues this temporary restraining order which will
expire on November 11, 1993 at 11:30 a.m.
     Accordingly, it is hereby
     *2 ORDERED that Defendants shall be temporarily restrained for 10 days in that
Defendants may not take any adverse action against Plaintiff, based solely on his status
as a homosexual.  So long as Plaintiff discharges his duties and responsibilities as a
United States Marine Corps sergeant he shall be allowed to remain on active duty in the
Marine Corps during the period of this temporary restraining order.
END OF DOCUMENT