Reaching the same result is the case of Winters v. United States, 281 F. Supp. 289, 295-296 (E.D.N.Y.1968), aff'd 390 F.2d 879 (2d Cir. 1968), cert. den. 393 U.S. 896, 89 S. Ct. 188, 21 L. Ed. 2d 177, wherein the Court noted that the enlistment contract in question contemplated military service "as the law may require" and concluded that said contractual language anticipated service under prospectively enacted as well as then existing law. I take judicial notice of the fact that the form enlistment agreement DD 4, in use at the time of plaintiff's enlistment in the Pennsylvania Air National Guard in 1966, contained similar language in which the plaintiff agreed to serve the military "under the conditions prescribed by law."
It must be concluded both that § 673 of Title 10, U.S.C. subjected plaintiff to no substantially different consequence for his failure to perform satisfactorily in the Ready Reserve than had theretofore existed under prior law and that plaintiff's enlistment contract contemplated service upon the terms of the later enacted statutory provision in any event. The contractual claim of plaintiff must therefore be dismissed as legally insufficient.
Nor can plaintiff seriously contend that he was not apprised of any change in his military obligations resulting from the enactment of Section 673a. The United States has established that the plaintiff acknowledged his awareness of the new directives issued pursuant to the new statutory provision shortly after their issuance. Viewing defendants' motion to dismiss as one for summary judgment upon plaintiff's contractual claim, the Court finds that plaintiff offered no evidence to dispute the fact that plaintiff knew fully of his changed obligations.
Plaintiff also contends that he was wrongfully induced to re-enlist in the Ready Reserve for the additional period from January 10, 1969 to January 10, 1970 by the misrepresentation that he was not then eligible to apply for Standby Reserve. Since Section 269 of Title 10, U.S.C. confers the right to transfer to Standby Reserve only upon five-year Reservists who have spent a portion of time upon active duty other than for training, I fail to see wherein such a representation, if made, would have been erroneous with respect to the plaintiff herein, whose active duty allegedly has been spent in the service of the Ready Reserve. In any event, such a contention will not be entertained by the Court for numerous reasons, none the least of which is that plaintiff cannot be heard to raise it at this late date, after plaintiff has served a portion of his re-enlistment and served it unsatisfactorily. It is not relevant to the present order compelling plaintiff to active duty for failure to perform his Reserve obligations satisfactorily.
Plaintiff's remaining contentions are that the Pennsylvania Air National Guard was bound to compute his drill absences on the basis of his anniversary year rather than upon the military fiscal year, that he was the object of discrimination for personal reasons and that due consideration was not given to his personal hardship as prescribed by Section 673a. In raising these issues plaintiff bades the Court to transgress the well settled boundaries which circumscribe civil review of military action. The Court will inquire into an activation order under 10 U.S.C. § 673a for unsatisfactory performance in the Reserves only so far as to determine whether the military has acted within its jurisdiction under valid law. Winters v. United States, 281 F. Supp. 289 (E.D.N.Y.1968), aff'd 390 F.2d 879 (2d Cir. 1968), cert. den. 393 U.S. 896, 89 S. Ct. 188, 21 L. Ed. 2d 177 (1968); Fox v. Brown, 402 F.2d 837 (2d Cir. 1968).
With respect to the contention that plaintiff's absences from drills should have been computed on the basis of his anniversary year, plaintiff alleges no statutory provision or military regulation which prescribes such a basis for computation. The statutory indication, in fact, appears to be the contrary. Section 275(b) of Title 10 U.S.C. provides:
"Under regulations to be prescribed by the Secretary of Defense, each military department shall prepare and maintain a record of the number of members of each class of each reserve component who, during each fiscal year, have participated satisfactorily in active duty for training and inactive duty training with pay. Aug. 10, 1956, c. 1041, 70A Stat. 13; Sept. 2, 1958, Pub.L. 85-861, § 1(5)(B), 72 Stat. 1439."
In complying with this provision, the Pennsylvania Air National Guard would most conveniently maintain its records of a Reservist's unsatisfactory drill attendance on the military fiscal year. There is no indication that the Pennsylvania Air National Guard has transgressed the law or military regulation in choosing the military fiscal year as a basis for computing plaintiff's drill absences.
Plaintiff alleges merely that he was "advised" the computation was to be made upon his anniversary year. It is not stated upon what authority, by whom or by what means plaintiff was so advised. Regardless, I do not think this is a proper matter for civil adjudication any more than are questions of military discretion. If such a matter were reviewable by a civil court, any member of the military could circumvent the limitation upon review of acts of military discretion simply by asserting that it was represented to him that his superiors would act otherwise.
Plaintiff's contention that he has been the object of a discriminatory exercise of military discretion clearly falls within the realm of non-justiciable issues. In answer to the contention, it is sufficient to set forth the words of the Supreme Court of the United States in the case of Orloff v. Willoughby, (1953) 345 U.S. 83, at page 93, 73 S. Ct. 534, at p. 540, 97 L. Ed. 842:
"We know that from top to bottom of the Army the complaint is often made, and sometimes with justification, that there is discrimination, favoritism or other objectionable handling of men. But judges are not given the task of running the Army. The responsibility for setting up channels through which such grievances can be considered and fairly settled rests upon the Congress and upon the President of the United States and his subordinates. The military constitutes a specialized community governed by a separate discipline from that of the civilian. Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters. While the courts have found occasion to determine whether one has been lawfully inducted and is therefore within the jurisdiction of the Army and subject to its orders, we have found no case where this Court has assumed to revise duty orders as to one lawfully in the service."