SHERIDAN, Chief Judge.
Plaintiff, Kline James Wolf, Jr., a Private in the Army National Guard of the State of Pennsylvania, has filed this action seeking injunctive relief from an order of the Department of the Army directing him to report for active duty in the United States Army. While plaintiff has set forth the wrong jurisdictional sections in his complaint, this court has jurisdiction pursuant to 28 U.S.C.A. § 1331 and 28 U.S.C.A. § 1361. A hearing was held on July 15, 1975, at which the following facts emerged.
Plaintiff enlisted in the Army National Guard on April 29, 1969. He has been ordered to active duty for accumulating in a one-year period five or more unexcused absences from drill ("unit training assemblies"). The first four unexcused absences, which resulted from plaintiff's failure to attend a MUTA 4 ("multiple unit training assembly," see AR 135-91, paragraph 12b) on August 18 and 19, 1973, are not in dispute. The controversy centers on the accumulation of plaintiff's fifth unexcused absence from drill. The plaintiff missed a MUTA 4 on April 27 and 28, 1974. Plaintiff requested permission to miss the four drills scheduled for April 27 and 28 and to make up the absences through "equivalent training" (ET). See AR 135-91, paragraphs 9 and 10. This request was denied. Nevertheless, plaintiff did not attend the scheduled drills on April 27 and 28 due to the fact he felt compelled to go to Ohio to see his girlfriend who had just advised him that she was pregnant. By letter dated April 29, 1974, plaintiff was advised that he had been credited with an additional four unexcused absences for his failure to appear at the MUTA 4 conducted by his unit on April 27 and 28, thereby bringing his total unexcused absences to eight. The letter also stated that if he had any question regarding his unexcused absences, he should report to his unit commander and that the next scheduled drills were on May 18 and 19, 1974. Plaintiff testified that prior to the meetings of May 18 and 19, 1974, he contacted Warrant Officer Weaver, not his unit commander, concerning his status in the National Guard unit, that Weaver informed him that he was suspended from the unit, and that since he was being placed on active duty, it was no longer necessary for him to attend drills. Plaintiff testified that in reliance on these statements by Warrant Officer Weaver, he did not attend the MUTA 4 scheduled for May 18 and 19. Subsequently, he received a letter stating that he had accumulated another four unexcused absences for failure to attend the May 18 and 19 drills, bringing his total unexcused absences to twelve.
There is a factual dispute as to whether Warrant Officer Weaver told plaintiff not to attend the MUTA 4 held on May 18 and 19. AR 135-91, paragraph 9, makes clear that only the unit commander, in this case Captain Whitman, can authorize excused absences and hence plaintiff knew or should have known that Warrant Officer Weaver could not authoritatively answer his question about the May 18 and 19 drills. Moreover, the letter dated April 29, 1974, which informed plaintiff of his accumulation of eight unexcused absences and that the next scheduled drills were on May 18 and 19, stated that he should report to Captain Whitman personally if he had any questions regarding his unexcused absences. However, the court need not resolve this factual dispute surrounding the May 18 and 19 absences since the court has concluded, for the reasons set forth infra, that plaintiff's challenge to the four absences accumulated on April 28 and 29, 1974, is without merit and hence -- in combination with the previous four absences accumulated on August 18 and 19, 1973, which plaintiff does not challenge -- he still has eight unexcused absences, four more than permissible under the regulations, without taking into account the absences on May 18 and 19.
Five unexcused absences from drill accumulated during a one-year period constitutes failure to participate satisfactorily in the Ready Reserve. AR 135-91, paragraph 12. A member of the Ready Reserve who fails to participate satisfactorily in this respect will be ordered to active duty for a period which, when added to his prior service on active duty, will total 24 months. 10 U.S.C.A. § 673a; Executive Order 11366; AR 135-91. Plaintiff signed an enlistment agreement (Government Exhibit No. 2, page 1) which states in part:
"During My Ready Reserve service, both before and after my active duty training, I am required to participate satisfactorily in the scheduled drills (at least 48 each year) and attend field training at least 15 days each year, unless excused therefrom by proper authority . . .
"I further understand that - - -