by MARTU O 1571R. 2F(5)(h) informing him of his right to submit a statement which would accompany the Commanding Officer's "recommendation". Thus, the commanding officer failed to follow the Marine Orders then in effect by his failure to inform Private Ryan of his second " recommendation " on September 17, 1971 and failure to give Private Ryan the opportunity to rebut and respond to his Commanding Officer's second request for involuntary active duty orders.
It is of course crucial to Private Ryan's claim that I find that the second letter of September 17, 1971 constituted a second "recommendation". While the September 17 letter makes reference to the prior letter of March 17, 1971, it should be noted that the Marine Corps took no action to issue active duty orders for Private Ryan until after the September 17 letter. Whether the failure of the Marine Corps to take any action between March and November of 1971 relates to the persuasiveness of Private Ryan's letter of March 5, 1971 or to the added weight of Lt. Col. Barkley's second letter is not material. If Ryan's letter of March 5, 1971 was so persuasive that the Marine Corps had decided not to activate him at that time, then the September 17 letter of Barkley must surely be construed as a second "recommendation", requiring that Ryan be given an opportunity to respond pursuant to MARTU O 1571R. 2F(5)(h). On the other hand, if the Marine Corps had decided to activate Ryan prior to the September 17 letter but was awaiting further evidence, then when that additional evidence in the form of a second "recommendation" was supplied, the reservist must be notified of the additional evidence and be given a second opportunity to respond in accordance with MARTU O 1571R. 2F(5)(h). The failure of the Marine Corps to permit the affected reservist to respond to subsequent "recommendations" would allow abuses in a case such as the instant one where a reservist is notified that he is being activated because of his performance at one meeting and responds to that initial complaint; when in fact the activation is based on conduct at a second meeting which the reservist would have no reason to know was the basis for the activation "recommendation" and thus was not the subject of any response.
My finding that the September 17, 1971 letter constituted a second "recommendation" does not run afoul of the now well-established rule that courts have no power to review discretionary judgments of the military made within the military's valid jurisdiction.
Thus, here, I intimate no view as to whether Private Ryan's performance at the meetings of February 21, 1971, May 1, 1971 and September 11, 1971 was or was not satisfactory as defined by the Marine Corps Regulations. On the other hand, it is equally well-established and here conceded by the Government that a court does have jurisdiction to determine whether or not the military's orders "were promulgated in violation of the military's own regulations". O'Mara v. Zebrowski, 447 F.2d 1085, 1087 (3rd Cir. 1971).
I have found above that the September 17, 1971 letter of Lt. Col. Barkley to the Marine Corps Commandant was a "recommendation" within the meaning of Marine Corps Order P1001R. 43, para. 2102(2.) (a and b). Further, Private Ryan was neither sent a notice nor given an opportunity to submit a statement with respect to the September 17, 1971 "recommendation" as specified in MARTU O 1571R. 2F(5)(h). Accordingly, the active duty orders issued to Private Ryan following the September 17, 1971 letter of "recommendation" must be quashed as void, as the orders resulted from a violation of the Marine Corps' own regulations and not from the discretionary authority of Lt. Col. Barkley to declare Ryan's performance "unsatisfactory". Thus, for all the above reasons, I hereby find that the orders requiring Private Thomas E. Ryan to report for active duty are void and remand this matter to the jurisdiction of the Marine Corps. If the Marine Corps desires to activate Private Ryan, it is of course free to do so as long as the Marines comply with all applicable regulations, laws and constitutional provisions.