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KEISTER v. RESOR

September 30, 1971

Richard E. KEISTER, Jr., Private (E-2), Petitioner,
v.
The Honorable Stanley RESOR, Secretary of the Army and Commanding Officer, First United States Army, Fort George G. Meade, Maryland and Commanding Officer, 1185th USAR Staging Station, 1135 Ranck Mills Road, Lancaster, Pa., Respondents


Ditter, District Judge.


The opinion of the court was delivered by: DITTER

In this case petitioner seeks release from an involuntary call to active duty with the military.

 Petitioner, Richard E. Keister, Jr., is a member of the U.S. Army Reserve. On July 25, 1970, he reported to Camp Drum, New York, for a two-week period of active duty for training. By his own admission, Private Keister became intoxicated and left Camp Drum on August 1, 1970, six days before his training duty was to end. The Army reported him as AWOL as of August 3, 1970. Under military regulations, absence from training duty is excused only if a satisfactory reason is presented within 14 days. *fn1" Petitioner claims that some time in August he orally informed one of the officers of his reserve unit that he had not completed the training period because of alleged psychiatric problems.

 Petitioner's absence not having been excused, on September 8, 1970, his commanding officer certified him as an unsatisfactory participant in the Army Reserves and requested that petitioner be ordered to active duty under provisions of Army Regulation 135-91. By letter dated September 16, 1970, Keister stated he was appealing his commanding officer's action. He also asked to be discharged because of psychiatric problems. This letter, which had no supporting certificates or affidavits, was not delivered within the 14 days allowed to submit an excuse but was more than 30 days late. On or shortly after November 27, 1970, petitioner was notified that he would be ordered to active duty and that he had the right to appeal within 15 days. On December 8, 1970, he did appeal, referring to his letter of September 16, 1970, to state his excuse for failure to complete training duty and enclosing a psychiatric report dated September 28, 1970.

 Keister contends that he is eligible for discharge and therefore the Army should release him. In addition, he maintains that he was denied due process by the procedures followed by the Army to activate him. Although it is well established that federal courts will not overturn discretionary determinations made by the military within its jurisdiction, *fn2" such decisions must follow the applicable regulations *fn3" of the service involved and may not violate the provisions of the Constitution.

 I. Eligibility for Discharge

 First, Keister contends that a reservist who is found to be an unsatisfactory participant must be discharged prior to entering active duty if eligible for release by reason of psychiatric problems. The Army on the other hand maintains that Keister's eligibility can only be determined after psychiatric evaluation which will be conducted as part of petitioner's induction examination.

 Department of Defense Directive 1215.13 provides that those reservists who do not maintain satisfactory participation in the activities of their units may be ordered to active duty. Paragraph IV C 1 states as an exception to the activation of unsatisfactory participants that ". . . individuals eligible for discharge from the reserve components for dependency, hardship or other cogent reasons authorized by regulations of the Military Department concerned will, upon application be discharged." The key word is "eligible". Here, the "Military Department concerned," the U.S. Army, has yet to decide whether Keister is eligible for discharge or not. Under the directive, the Army has the decision in the first instance.

 Petitioner claims that he has established a prima facie case of eligibility for discharge by reason of his own statements and the reports of two psychiatrists. I do not agree. In the first place, Keister is obviously not qualified to evaluate his own condition and give an expert opinion. Secondly, there is nothing to indicate that his doctors were applying Army standards in their evaluation of his mental status.

 One of the petitioner's doctors, Robert L. Sadoff, M.D., states in his Psychiatric Report re Richard Keister, dated September 28, 1970:

 
Mental Status Examination reveals Richard to be an average size male who appears his stated age and presents his difficulties in a clear and relevant manner, without evidence of psychotic thought disorder, hallucinations or delusions. He is well oriented and his memory is not impaired. He is moderately anxious during the interview and shows great concern for himself, his future and his mental state. He is mildly depressed and motivated for psychiatric treatment of his difficulties.

 He then says immediately following in the Diagnostic Impression:

 
Acute and chronic anxiety reaction, with depressive features, originating several years ago, but aggravated recently by military stress.

 Doctor Sadoff repeats this impression in a letter dated February 2, 1971, but then adds: "He appears to be free of psychosis, but quite anxious and nervous." A report by Doctor Morgan, who examined Keister on April 19, 1971, *fn4" restates Doctor Sadoff's opinion and goes on to say that he (Dr. Morgan) does not believe Keister will become an "acceptable" soldier and that rehabilitation is a waste of money. However, neither doctor's report indicates any familiarity with the criteria used by the Army to judge a man's psychiatric condition, the application of such criteria, or a decision based thereon. Therefore, these reports do not establish eligibility for discharge or anything else, *fn5" and in any event, the Army is not required to accept a civilian doctor's opinion: Byrne v. Resor, 412 F.2d 774, 775 (3rd Cir. 1969)

 At my request, Keister was examined by an Army doctor shortly after the present petition was filed to see if there were any psychiatric problems which were so apparent that discharge would immediately be ordered. Such was not the case. Keister now complains that his interview with the doctor was too brief and that he applied the wrong standards. Petitioner contends that he should be evaluated under the Army's "procurement standards" but that the doctor considered him on the basis of its "retention standards." Since this examination was made at my request and was not intended to affect the rights of either party, there is no merit in this contention.

 I construe Department of Defense Directive 1215.13, which is applicable in this case, to authorize the Army to evaluate petitioner's complete mental and physical condition before deciding whether or not he is eligible for discharge. The most appropriate place to conduct the necessary examination will be at the reception station for entry upon active duty, and I can only assume such reception stations are thoroughly familiar with the standards to be applied to Private Keister.

 In what amounts to another argument as to his eligibility for discharge, petitioner contends that since his commanding officer did not immediately forward the request for discharge contained in Keister's letter of September 16, 1970, as prescribed by Army Regulation 135-91 18(e), and since none of the higher military authorities have acted favorably upon it, the Army has violated its own regulations. The letter of September 16, 1970, attempted to excuse his failure to complete training and it requested a discharge. The record shows, however, that this letter was forwarded during the Army's administrative preparation to handle Keister's ...


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