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WOLF v. SECRETARY OF DEFENSE

August 1, 1975

Kline James WOLF, Jr., Plaintiff,
v.
SECRETARY OF DEFENSE, Defendant



The opinion of the court was delivered by: SHERIDAN

 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.

 
"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 - - -
 
"If for any reason, other than inactivation, relocation or reorganization of my unit, I fail without proper authority to attend the prescribed number of unit training assemblies, or am unable to continue in a Ready Reserve paid drill unit assignment, I can be involuntarily ordered to active duty for twenty-four months, less any period of active duty or active duty for training I previously performed.
 
"I also understand my term of enlistment will be extended to permit completion of such active duty . . . ."

 Plaintiff argues that the decision to deny him permission to miss the April 27 and 28, 1974, drills and to make up his absences by equivalent training "was an abuse of the commander's discretion." Plaintiff's Brief In Support Of Injunction, p. 3. It is a well established principle that discretionary decisions of military officials made within their valid jurisdiction are beyond the permissible scope of review of the federal courts. Orloff v. Willoughby, 1953, 345 U.S. 83, 73 S. Ct. 534, 97 L. Ed. 842; O'Mara v. Zebrowski, 3 Cir. 1971, 447 F.2d 1085; White v. Callaway, 5 Cir. 1974, 501 F.2d 672; Antonuk v. United States, 6 Cir. 1971, 445 F.2d 592, 594; Caruso v. Toothaker, M.D.Pa.1971, 331 F. Supp. 294. Cf. Shadle v. United States, M.D.Pa.1970, 315 F. Supp. 102. As the Supreme Court stated in Orloff v. Willoughby, 345 U.S. at 93-94, 73 S. Ct. at 540:

 
". . . But judges are not given the task of running the Army. The responsibility for setting up channels through which such grievances can be considered and fairly settled rests upon the Congress and upon the President of the United States and his subordinates. The military constitutes a specialized community governed by a separate discipline from that of the civilian. Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters. . . ."

 Thus, this court cannot undertake a de novo review of the decision to deny plaintiff's request for permission to miss the April 27 and 28 drills, and the court is without power to review the decision for reasonableness.

 For the same reasons, the court is without power to review in any manner the unit commander's determination pursuant to AR 135-91, paragraph 12e(2), that no "cogent or emergency reasons existed" which prevented plaintiff from attending the April drills. AR 135-91, paragraph 12e(2), requires the unit commander to make the aforementioned determination when the (absences) charged will result in a total accrual of five or more unexcused absences in a one-year period, thereby resulting in the member's involuntary activation. It should be noted that plaintiff's unit commander, Captain Whitman, clearly made the determination required by AR 135-91, paragraph 12e(2). See Government Exhibit No. 2, pp. 10, 17.

 Where the military takes action, and that action is governed by applicable regulations, the military must adhere to its own regulations in taking such action. White v. Callaway, supra; Caruso v. Toothaker, supra. Thus, an order can be reviewed by the federal courts to determine whether the military has violated its own ...


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