The opinion of the court was delivered by: HERMAN
Before the court is an Army Reservist's complaint seeking an injunction, assailing an involuntary call to active duty pursuant to Executive Order No. 11366, 10 U.S.C. § 673a. Petitioner John R. Shadle, Jr. claims the court has jurisdiction under the Constitution of the United States, Article I, § 8; Federal Rules of Civil Procedure 4(d) and 4(e); and 28 U.S.C.A. §§ 1331, 1391(e).
No constitutional impairment is set forth or claimed, nor has there been a breach of federal law averred. The essence of petitioner's claim is based upon a breach of the Enlistment Contract of the Armed Forces of the United States with which petitioner is seeking injunctive relief in the form of an affirmative act to direct the rescission of the involuntary activation order. The court construes the complaint as one pursuant to 28 U.S.C. § 1361 which reads as follows:
"The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or an agency thereof to perform a duty owed to the plaintiff." Smith v. Resor, 406 F.2d 141 (2d Cir. 1969); United States ex rel. Schonbrun v. Commanding Officer, 403 F.2d 371 (2d Cir. 1968).
Petitioner enlisted in the United States Army Reserve on August 19, 1968 and was subsequently ordered to report for active duty (basic training) on May 15, 1969. Petitioner completed the prescribed tour of active duty on September 22, 1969 and was thereafter assigned to the HHC 1st Bn 313th Inf. 157th Bde Army Reserve Unit, in Harrisburg, Pennsylvania, on October 1, 1969. Upon assignment to the Harrisburg unit in October, and until January 6, 1970, petitioner satisfactorily pursued his Armed Forces Reserve commitment, missing only the training session of December 7, 1969 which was denoted as a Multiple Unit Training Assembly and charged as two unexcused absences. A member fails to participate satisfactorily when he accrues in any one-year period a total of five (5) unexcused absences or more, as set forth in Army Regulation 135-91 Section 12.
On January 6, 1970 petitioner sought leave to transfer to another Reserve component nearer his home in Selinsgrove, which is situated approximately fifty miles from Harrisburg. The Unit Commander of the 313th Army Reserve Unit assented to a transfer and granted a "60-day letter" pursuant to AR 135-91 Section 6 which provides, in pertinent part:
"A member who changes his residence to a location too distant to continue participation with his assigned unit will, prior to departure, be counseled and provided a Letter of Instructions Concerning Change of Residence (app A) (Copy attached hereto). He will be allowed a period of 60 days of excused absence from training in which to locate and join another Reserve component unit. The responsibility for locating a suitable vacancy will rest with the individual concerned. The 60-day period will commence on the date following his date of departure. Should the member fail to join a unit within the 60-day period, he will be ordered to active duty for a period of 24 months less any previous period of active duty * * * he may have already served * * *."
The "60-day letter" was issued to the petitioner as per his request and dated January 6, 1970.
There are two Reserve components within a reasonable proximity of petitioner's home, one in Lewisburg and the other in Sunbury, Pennsylvania. Petitioner, in the early part of February, contacted initially the Lewisburg Unit which was his preference but found there were no openings. He thereafter, in the middle to latter part of February, contacted the Sunbury Unit, a component of the Pennsylvania Army National Guard, Troop F, 104th Armored Cavalry, and was informed that openings existed in that unit.
Petitioner's papers were not in order and Sergeant McCale, the duty officer of the Sunbury Unit, suggested that he return again after his papers could be forwarded from the Harrisburg Unit. Sergeant McCale informed petitioner that the "60-day letter" was about to expire and informed him an extension would be necessary, until March 14th, 1970, at which time petitioner would necessarily attend the Guard's drill period and take the oath of enlistment. In addition, the Sergeant informed petitioner that upon taking the oath of enlistment conducted by the commanding officer he would become a member of the Guard and thus severed from his former unit. In the interim period petitioner's "60-day letter" was extended to March 14th.
Petitioner again met with Sergeant McCale on March 11th at which time numerous incomplete papers were signed consisting of the Enlistment Contract, Statement of Enlistment in the National Guard, Armed Forces Security Questionnaire, Declaration of Benefits Received and Waivers, and others. Again petitioner was informed of his duty to report to the weekend drill session beginning on March 14th for purposes of completion of his Enlistment Contract. The Enlistment Contract, though signed by petitioner, by its terms necessitated the taking of the oath, the confirmation of the officer conducting the oath, and an attestation by said officer that the enlistee 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 ...