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HOERSCH v. FROEHLKE

October 11, 1974

RAYMOND C. HOERSCH, Plaintiff
v.
HONORABLE ROBERT F. FROEHLKE, Secretary of the Army, Defendant



The opinion of the court was delivered by: HANNUM

 HANNUM, J.

 This is a declaratory judgment action in which petitioner seeks to have orders to involuntary active duty in the United States Army Reserves declared null and void, and further requests this Court rule that he is a civilian, and no longer subject to military jurisdiction.

 Jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1331, *fn1" and 28 U.S.C. § 2201. *fn2"

 FACTS

 On October 17, 1965, plaintiff, Raymond C. Hoersch, Jr., voluntarily enlisted in the United States Army National Guard of Pennsylvania. *fn3" Upon completion of his basic training, plaintiff was placed in a unit of the Ready Reserve to fulfill the remainder of his military obligation. Because of unexcused absences *fn4" from scheduled training with his Ready Reserve Unit, plaintiff was ordered to active duty. Following an unsuccessful military appeal, he brought this declaratory judgment action challenging the validity of his orders to active duty.

 10 U.S.C. § 673(a) *fn5" confers authority on the President to order to active duty any member of the Ready Reserve *fn6" of an armed force who is not "participating satisfactorily" in a unit of the Ready Reserve. By Executive Order No. 11366, *fn7" the President delegated his authority to the Secretary of Defense, together with authority to delegate this power in turn to any of the secretaries of the military departments of the Department of Defense. Criteria for satisfactory participation are set out in Army Regulations 135-91(12), *fn8" and 135-91(5)(d). *fn9"

 Hoersch received his first unexcused absences for periods 1 and 2 on January 10, 1970, and periods 3 and 4 on January 11, 1970. On February 2, 1970, Hoersch was informed of these unexcused absences *fn10" by certified mail from his unit commander. *fn11"

 On February 7, 1970, plaintiff presented himself for his scheduled unit assembly, and was informed that his appearance did not meet military standards; specifically, his uniform was neither cleaned nor pressed, his boots were dirty, and his hair was too long. *fn12" The unit commander gave Hoersch permission to leave the assembly, and he was informed further that, upon return with his appearance in conformity with military standards, he would be given credit for the morning period. Hoersch failed to return, in fact he was absent from periods 3 and 4 on February 8, 1970.

 On February 25, 1970, plaintiff was informed by certified mail for which he properly receipted, *fn13" that he had accrued a total of eight unexcused absences within a one year period. The letter again stated that five unexcused absences within a one year period would result in a request to the Adjutant General of Pennsylvania for orders to active duty.

  March 3, 1970, orders were requested requiring Hoersch to enter active duty; and on April 20, 1970, *fn14" Hoersch was notified of the pending orders to involuntary active duty because of his eight unexcused absences. On April 30, 1970, plaintiff received a registered letter informing him further of his right to submit a written appeal of his involuntary activation. *fn15"

 Plaintiff appealed to the unit commander on May 16, 1970, and his reporting date was change from June 19, 1970, to July 19, 1970, to allow time for proper consideration of the appeal. *fn16"

 Forty copies of plaintiff's original orders and his amended orders, changing his reporting date, were sent to plaintiff through the United States mail, but were returned unclaimed. [These facts are discussed more fully in the notice section].

 On July 22, 1970, Hoersch received by registered mail his Discharge Certificate *fn17" from the Pennsylvania Army National Guard, as well as a copy of his special orders. *fn18" The special orders stated, inter alia, the reason for discharge, "Order to AD (Active Duty) as Army Reservist," ...


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