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February 16, 1972

Arthur G. MELLINGER, III, NG-23-911-226
Melvin LAIRD, Secretary of Defense, et al.

Masterson, District Judge.

The opinion of the court was delivered by: MASTERSON

MASTERSON, District Judge.

 This is another in the long series of cases involving the activation of military reservists for failure to participate satisfactorily in their units of the Ready Reserve. *fn1" Private Mellinger enlisted in the Army National Guard on March 22, 1964, thereby incurring a six year obligation which would have expired on March 21, 1970. About 3 1/2 months before his discharge, however, the Army ordered Mellinger to active duty for a period of 15 months, 9 days. The Army activated Mellinger pursuant to 10 U.S.C. § 673(a) and (b) which read as follows:

"(a) Notwithstanding any other provision of law, the President may order to active duty any member of the Ready Reserve of an armed force who --
(1) is not assigned to, or participating satisfactorily in, a unit for the Ready Reserve;
(2) has not fulfilled his statutory reserve obligation; and
(3) has not served on active duty for a total of 24 months.
(b) A member who is ordered to active duty under this section may be required to serve on active duty until his total service on active duty equals 24 months. If his enlistment or other period of military service would expire before he has served the required period under this section, it may be extended until he has served the required period."

 By Executive Order No. 11366, the President delegated his authority under this statute to the Secretary of Defense who, in turn, authorized promulgation of A.R. 135-91, which established policies and procedures governing satisfactory participation. In Paragraph 12, the Regulation states that:

"A member fails to participate satisfactorily when he accrues in any 1-year period a total of five or more unexcused absences from scheduled unit training assemblies . . ."

 Paragraph 5(d)(12) provides that:

"A member present at a scheduled unit training assembly will not receive credit for attendance thereat unless he is in the prescribed uniform, presents a neat and soldierly appearance, and performs his assigned duties in a satisfactory manner as determined by the unit commander."

 And, A.R. 600-20, paragraph 31 establishes, in part, the criteria of a "neat and soldierly appearance."

"The hair to include sideburns will be well groomed, cut short or medium length and neatly trimmed at all times."

 Private Mellinger found himself within the orbit of this statute and accompanying Regulations on November 9, 1969 when he received his fourth and fifth unexcused absences within a one year period. On that date he participated unsatisfactorily in the morning and afternoon training periods. Ironically he received these critical absences on the last day of the one year period in which his first charged unexcused absence (which occurred on November 10, 1968) could have been counted toward the required total of five. *fn2" The behavior which prompted Captain Snelbecker, Mellinger's Company Commander, to impose two unexcused absences consisted of Mellinger's unjustified lateness at the morning training period and his long and untidy hair and sideburns at the afternoon session. *fn2"

 More specifically, the evidence before us indicates that on November 9, 1969 Private Mellinger arrived about 40 minutes late for the scheduled morning drill because he overslept. *fn3" Although Mellinger telephoned his Unit to explain that he would be late, *fn4" and it was apparently informal company policy to grant excused absences upon a telephone call (prior to the commencement of scheduled activities), *fn5" nevertheless, Mellinger received a point. Captain Snelbecker explained that Mellinger's lateness was not excused because he, in particular, had been late on other occasions with impunity, and that as the Commanding Officer, he felt a crackdown was necessary. *fn6"

 At the afternoon session, Captain Snelbecker cited Mellinger because his sideburns and hair failed to comply with established military standards. It is undisputed that well before November 9, 1969, the defendants mailed a diagram which clearly depicts acceptable lengths of sideburns and hair to every reservist, including Mellinger. *fn7" Aside from the diagram, it is also undisputed that Captain Snelbecker personally told Mellinger at the morning assembly that his hair and sideburns were too long and ordered him to at least trim his sideburns before the afternoon inspection. *fn8" Since November 9th was a Sunday, a day on which it would be extremely difficult to find a barber, Captain Snelbecker decided to tolerate the long hair provided Mellinger made an attempt, using readily available razors, to comply with the regulation on sideburns. *fn9" Besides Private Mellinger, Captain Snelbecker warned the entire unit that they should make an effort to comply with the established standards before the impending inspection. *fn10" Although other members of the Unit took their Commanding Officer's instructions seriously and immediately trimmed their sideburns during the noontime break, *fn11" Mellinger did nothing. *fn12" As a result, Captain Snelbecker imposed a fifth unexcused absence. *fn13" And Mellinger's active duty orders soon followed on December 3, 1969.

 A month later, Mellinger filed this action in federal court alleging various statutory and constitutional deprivations which, he claims, render his orders to active duty unlawful. He seeks habeas corpus, mandamus, or injunctive relief. On January 16, 1970, we issued a writ of mandamus under 28 U.S.C. § 1361, in effect staying Mellinger's activation orders until he was afforded an opportunity to exhaust his appellate remedies within the military. Presently before this court are three motions; one by the defendants who would have us dismiss his complaint and vacate the mandamus order, and the other two by the plaintiff who seeks either a permanent writ (or injunction) forbidding his activation or, in the alternative, continuation of the temporary mandamus pending the convention of a three judge court to hear various challenges to the constitutionality of 10 U.S.C. § 673. For the reasons developed ...

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