has complied with all of the regulations pursuant thereto.
Petitioner and two friends, one of whom was in the same status as petitioner; i.e., awaiting to take the oath of enlistment the following day, and the other a previously enlisted member of Troop F, together on March 13, 1970, ate clams and drank beer, and on March 14th all three were reported to the clerk of Troop F as being ill from food poisoning and unable to attend the drill session.
Petitioner and his friends were informed by telephone that a doctor's excuse would be necessary in order to be excused. (Petitioner claims he placed a call to a physician on the 14th before calling the unit; described his illness, and was told to rest. That he was also informed by the physician that he would sign an excuse on Monday night since he did not have office hours on Saturday). On March 15th the second day of drill session, the duty officer called the homes of the petitioner and his friends finding that they were not at home and that their parents were unaware of the whereabouts of the three.
Petitioner did not appear for drill either on the 14th or 15th of March.
On the 16th Captain Erdle of Troop F informed Captain Bankert, the Unit Commander of the Harrisburg Unit, that petitioner was unacceptable and not accepted within the "60-day letter."
Petitioner's doctor's excuse was received March 18th, 1970 at Troop F Headquarters.
Pursuant to AR 135.91 Section 6h, Captain Bankert forwarded petitioner's personnel records jacket to the Department of the Army, Headquarters, First United States Army, Fort George G. Meade, Maryland, and in addition notified the petitioner by letter of March 20, 1970, 1 AA Form 841, that a request for activation orders had been initiated. The form letter advised petitioner that "Any request for delay or relief from active duty orders must be submitted within five (5) days after receipt of this notification. Except for reasons of emergency or temporary illness or injury, a delay may not be authorized once your active duty orders have been published." No delay had been sought during the five day period.
On April 30, 1970 petitioner was notified by letter of a pending order to active duty. The letter informed petitioner that he had 15 days within which to appeal. By letter and documentation of May 12, 1970, petitioner exercised his right of appeal. The Headquarters disapproved the appeal by letter of May 22, 1970 and noted his activation duty as June 19, 1970. Final determination was made on June 18, 1970 by the Department of the Army, and petitioner was ordered by telegram to report on June 19, 1970.
The facts indicate, and the petitioner was so informed, that upon issuance of the "60-day letter" petitioner was obligated to "locate and join" another component within the 60-day period. An extension of the 60-day period was effectuated in order that petitioner could be afforded the opportunity to take the new oath of enlistment as required by the National Guard components to perfect his enlistment. Petitioner had been aware of the necessity of taking the oath in order to enlist in the National Guard.
Petitioner was also aware that it was the individual Reservist's responsibility to "locate and join" a new unit. Even if petitioner had been ill on Saturday March 14th and on Sunday Morning March 15th, he could have fulfilled his obligation to attend the Sunday drill session while absent from his home.
Captain Erdley did not act outside the scope of his authority nor abuse his discretion by refusing "acceptance" of the petitioner. AR 135-91 Section 8f; AR 135-91 Section 4d(2).
It is therefore adjudged that defendants' motion to dismiss will be granted. The findings of fact and conclusions of law are deemed to be incorporated herein.
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