The U.S. Army Band's annual participation in the Combined Federal Campaign, a government-wide charity fund drive, was apparently lagging in the fall of 1977. Only about three-quarters of the 250 band members had pledged to donate a fraction of their salaries to the effort.
Somebody -- no one is sure who at this point -- had what he thought was a good idea to promote 100 percent participation, and match or better the participation rates of other units at Fort Myer in Arlington. Why not post the names of no contributors on a bulletin board so everyone would know who was not giving his "fair share?"
But the idea went over badly with some band members, and now 49 of them are suing the Army, asking for $1,000 apiece in damages. Posting their names, the band members argue, invaded their privacy and violated rights guaranteed them by the First Amendment and the Federal Privacy Act.
The Army, for its part, has conceded that the list was posted in violation of Army regulations. But has called the posting an "unfortunate act," not a violation of federal privacy rights.
In a letter to Sgt. 1st Class Benjamin Riddles, one of the complaining band members, an Army inspector general wrote that there was "no intent to publicize the names" and that the list was placed on the bulletin board "erronously by an unknown person. When this posting was discovered, the list was removed."
U.S. District Court Judge Aubrey E. Robinson Jr. ruled in October that the band members who wanted to press their suit could do so as part of a class action.
But the lawyers for the three bandsmen who originally brought the suit -- Riddles and Spec. 6 Michael R. Dudley, both Army Band chorus members, and Spec. 6 Raymond N. Miller, a saxophonist -- have now charged that the Army has interfered with the band members' right "to make a free and uninhibited choice between inclusion in the class and 'opting out' of it."
The lawyers, Diane B. Cohn and John Cary Sims of Ralph Nader's Public Citizen Litigation Group, have submitted a sealed document to Robinson alleging that "at least to some extent class members have been deprived of the free choice to which they are entitled." It could not be learned what specific allegation the lawyers made.
A total of 65 band members' names were on the noncontributors' list and 16 have notified Robinson that they do not want to be a part of the suit.
Cohn and Sims have asked Robinson to "forbid reprisals of any sort (by the Army) and forbid any suggestion or statement that a decision to be included in this lawsuit could in any way lead to less favorable treatment of an individual by the Army."
The lawyers also asked that the 16 who have decided not to join in the suit be given another 20 days to consider changing their minds.
Riddles charged in an affidavit that the Combined Federal Campaign violates his religious beliefs and "mocks the very spirit of charity by publicly establishing the amount which one is expected to give and then designating that amount as an individual's 'fair share.'" Cards with suggested donations were handed to prospective givers, the suit charged.
Riddles and Dudley, in a separate affidavit, said Army Band officials had "badgered" them to make contributions.
"Repeated statements were also made that contributions were needed to give the Army Band 100 percent participation in CFC," Dudley said of the 1976 giving campaign. "It was at this point that what was once charity now appeared to be nothing more than a contest and a way for those people in charge of our organization to assure that they would stay in the good graces of those further up the chain of command."
The band members' suit alleges that in each of the last three years the Army Band has announced that 100 percent of its members have participated in the Combined Federal Campaign. The band could do this, the suit charged, by accepting small contributtions from some people in the name of nongivers, without their consent. The Army has denied this allegation.