for the plaintiff's nonattendance at summer camp, Colonel Joseph P. Kirlin, Jr., Commanding Officer of the Reserve Unit, requested that Lizzio be involuntarily ordered to active duty as an unsatisfactory participant pursuant to Army Regulation 135-91 for failure to attend the 15-day annual training camp. Plaintiff was promptly informed of the commanding officer's request for active duty orders. By letter dated December 29, 1972, Army Headquarters, First United States Army, Ft. Meade, Maryland, notified Lizzio of the active duty orders.
Plaintiff appealed his orders to active duty through the properly designated military channels. The appeal was denied and orders were published by the First Army requiring the plaintiff to report to the United States Army Reception Station, Ft. Dix, New Jersey, on May 15, 1973, for 19 months and 15 days of active duty.
Sp. 4 Lizzio now seeks declaratory and injunctive relief from the active duty orders on alternative grounds. Plaintiff contends that he is medically unqualified for service in the active Army or the Army Reserves. In addition, plaintiff claims that he was denied a meaningful appeal of the previously described active duty orders.
In support of the motion to dismiss the complaint on the basis that plaintiff failed to exhaust his available administrative remedies, defendants cite Army Regulation 135-91, P(15)(a) which states, in pertinent part: "Each member ordered to active duty will be required to undergo a medical examination . . ." Defendants submit that before this Court must determine whether plaintiff received a meaningful appeal he (Lizzio) should report to active duty and undergo a complete physical examination required by the above regulation. It is further argued by the defendants that the active duty examination will provide an opportunity for the Army, as an administrative agency, to amend or modify the involuntary activation order, if the results of such an examination revealed that plaintiff is in fact medically unfit for further military service.
The defendants' position finds strong support in the decision of the Third Circuit in Karpinski v. Resor, 419 F.2d 531 (3rd Cir. 1969). Karpinski, a member of the United States Army Reserves, was called to active duty due to an excessive number of absences from mandatory drills. The reservist challenged the action of the military on the ground, inter alia, that he was medically unfit for active duty. The lower court denied plaintiff's request for declaratory and injunctive relief for failure to exhaust administrative remedies in refusing to report to the reception center where he would have been given a physical examination and his eligibility for active duty determined. The Court of Appeals affirmed on the basis that the reservist would be given a physical examination upon reporting for active duty.
The decision and reasoning of the Court in Karpinski v. Resor, supra, is certainly applicable to the case at bar. Sp. 4 Lizzio is challenging the involuntary activation orders on the ground that his skin condition renders him medically unqualified for further military duty. At the same time he has declined to present himself at the induction center as directed by the active duty orders, where plaintiff would be afforded a complete and thorough medical examination pursuant to Army Regulation 135-91, para (15)(a). The record is devoid of any indication that the plaintiff will receive less than a full and fair physical examination for the purpose of determining whether further military duty would be detrimental to his health and welfare.
The Court believes that it would be inappropriate to decide the issue of the propriety of the involuntary activation orders and the adequacy of plaintiff's appeal before the plaintiff is afforded the required preinduction physical examination. Such an examination will inure to the benefit of both Sp. 4 Lizzio and the Army in that the medical suitability of the reservist for active duty will be resolved on a more definite and conclusive basis.
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And now, to wit, this 15th day of April, 1974, upon consideration of the motion of defendants to dismiss the complaint because of plaintiff's failure to exhaust available administrative remedies, it is ordered that said motion is granted.