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UNITED STATES EX REL. HENKELS v. POWERS

June 25, 1971

UNITED STATES ex rel. Frederick Paul HENKELS, Jr.
v.
Col. James POWERS, Commander, et al.


Edward R. Becker, District Judge.


The opinion of the court was delivered by: BECKER

EDWARD R. BECKER, District Judge.

 I. STATEMENT OF FACTS

 Relator, a student at Drexel University and a member of the United States Army by virtue of his participation in advanced R.O.T.C., *fn1" has petitioned this Court for a preliminary injunction restraining the Army from: (1) ordering him to six-week officers' summer camp at Indiantown Gap, Pennsylvania, *fn2" pending the Army's disposition of his request for discharge as a conscientious objector; and (2) disciplining the relator for failure to attend R.O.T.C. summer camp. Relator has also filed with the Court a petition for a writ of habeas corpus seeking a conscientious objector discharge from the Army.

 A preliminary injunction hearing was held on June 23, 1971, at which time counsel for relator and counsel for the government stipulated to the following relevant facts:

 On April 12, 1971, relator filed an application for discharge with the Commander of the R.O.T.C. detachment at Drexel University. On April 23rd, pursuant to Army regulations, relator was interviewed by an Army psychiatrist and an Army chaplain. On April 29th, the so-called O-3 interview (the final step in the interview process) was conducted by a Captain Bartholemew to determine the merits of relator's claim. Captain Bartholemew was subsequently transferred to Ft. Benjamin Harrison, Indiana, and through oversight, his report was not completed until May 24th. This report was forwarded the following day to the next step in the chain-of-command, the United States First Army at Ft. George Meade, Maryland. On June 18th, relator's application was returned to his R.O.T.C. detachment because of relator's failure to sign the application in the appropriate places. *fn3" Relator thereupon signed his application and it was again forwarded to the First Army on June 22, 1971.

 On May 1, 1971, in the interim in which relator's application was being processed, relator received orders to report for summer camp on June 12th. These orders were subsequently rescinded, and new orders were issued on June 3rd ordering relator to report on June 26, 1971.

 Relator represented to the Court that an application for discharge as a conscientious objector, filed in accordance with A.R. 135-25, normally is processed, and a decision rendered, within sixty days from the date of filing. The government, however, disputes this point and cites language contained in A.R. 135-25, which states:

 
"Normally a minimum period of ninety days is required to finalize the processing of an application submitted in accordance with this regulation." (emphasis added)

 Relator concedes that he is on notice of this regulation. Relator's application is presently at the First Army. From there, the application must be forwarded to the Commander of the United States Army Reserve Components, Lieutenant Colonel H.W. Wheeler, at Ft. Benjamin Harrison, Indiana, who in turn convenes a board of review for a final disposition of relator's claim. It is clear that the final determination cannot be made by June 26th, the day on which relator is due to report to summer camp. *fn4"

 II. DISCUSSION

 A. The Question of Exhaustion.

 Relator concedes that he has not exhausted his administrative remedies prior to asking this Court for relief. His prayer for a preliminary injunction is bottomed principally upon the theory that exhaustion is not necessary because of the inordinate delay in processing his application.

 Relator relies upon the case of Halpin v. Mier, Civ. No. 70-2435 (E.D. Pa., May 3, 1971), for the proposition that unjustified delays in processing an application for discharge permit the courts to consider the administrative remedies exhausted and to enjoin the Army from activating a serviceman. In Halpin, Judge A. Leon Higginbotham, Jr. enjoined the Army from activating a reservist for failure to attend meetings, when the evidence showed that the reservist had filed an application for discharge sixteen months previously which the Army had not acted upon. While we agree with the principles enunciated in Halpin, we find the facts of the instant case readily distinguishable. In Halpin, there was a sixteen -month delay. Here the application was filed only two and a half months ago; yet, A.R. 135-25 prescribes a ninety-day minimum period for processing an application. Even if we were to accept relator's version of a sixty-day processing period, when he files an application in April and claims inordinate ...


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