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WRIGHT v. HENDERSHOT

October 6, 1976

CLYDE R. WRIGHT, JR.
v.
RALPH A. HENDERSHOT, ET AL.


Troutman, J.


The opinion of the court was delivered by: TROUTMAN

TROUTMAN, J.

A. INTRODUCTION

 B. FACTUAL BACKGROUND

 In order to understand the genesis of plaintiff's claims, a review of the factual background is pertinent. On February 11, 1972, plaintiff voluntarily enlisted in the Pennsylvania Army National Guard and thereafter satisfactorily completed active duty training (Complaint paras. 8, 9). In June, 1974, plaintiff became a student of the Jehovah's Witnesses; by November, 1974, because of his religious training, his beliefs had crystallized into objection to participation in war in any form (paras. 9, 10). On November 16, 1974, plaintiff informed his then commanding officer, defendant Bertz, of his beliefs and stated that he wished to be discharged as a conscientious objector. Thereafter, plaintiff submitted a formal application for such a discharge as required by Army Regulation (AR) 600-43.

 Thereafter, plaintiff failed to appear at the next scheduled Multiple Unit Training Assemblies on December 21-22, 1974, or at any subsequent training assembly, "* * * Because defendant Bertz required all men attending said assemblies to wear military uniforms and to participate fully in the drills, all of which were contrary to plaintiff's beliefs" (para. 19). On February 26, 1975, defendant Bertz mailed a notice to plaintiff that he would be ordered to active duty because he failed to attend the unit training assemblies (December 21 and 22, 1974, and January 21 and 22, 1975).

 Plaintiff appealed *fn1" the involuntary activation orders through appropriate military channels, but such appeal was denied and he was ordered to report for active duty. This action followed, and a temporary restraining order was entered with defendants' concurrence staying the effect of the reporting date pending resolution of the issues presented herein.

 C. COMPLAINT

 The complaint alleges two causes of action. In Count I, plaintiff claims that contrary to the clear duty set forth in the applicable Army Regulations, AR 600-43, his commanding officer failed to process his conscientious objection application, specifically, defendant Bertz failed to appoint an investigating officer under AR 600-43, Para. 2-4 even though plaintiff filed an application which constituted a prima facie case for discharge. Accordingly, mandamus is sought to compel defendants to process his discharge application *fn2" and to enjoin defendants from ordering him to active duty.

 The second count proceeds on a different tack. Plaintiff avers that he was a theological student in the Theocratic Ministry School sponsored by Jehovah's Witnesses, and had filed appropriate statements pursuant to AR 135-91, Para. 18b(2) which entitled him to a discharge on April 14, 1974, but that the defendants have not processed this application either. Accordingly, a writ of habeas corpus is sought to compel his discharge.

 Defendants' motion challenges the sufficiency of the allegations, *fn3" asserting that defendants did precisely what they were required to do. Specifically, they argue that plaintiff's admitted failure to attend the scheduled unit training assemblies of which plaintiff had notice violated his clear statutory duty to perform satisfactorily so that the involuntary activation was warranted under AR 135-91. The fact that none of the defendants appointed a hearing officer, as set forth in AR 600-43, Para. 2-4, is irrelevant, they argue, to the involuntary activation since plaintiff himself prevented the timely and proper processing of his conscientious objector petition. In addition, they argue the Army Delay Appeal Board properly denied the plaintiff's application for discharge as a theological student under 10 U.S.C. § 685 and § 1162.

 E. CONCLUSIONS

 We agree with defendants on both counts. As to Count I, it is well-settled that mandamus will lie to compel the military to follow its own regulations. Feliciano v. Laird, 426 F.2d 424, 427 (2d Cir. 1970); Cooper v. Barker, 291 F. Supp. 952 (D. Md.1968); Vallecillo v. David, 360 F. Supp. 896, 898-99 (D.N.J.1973). However, it is equally clear that the federal courts will not review discretionary decisions of the military authorities made within their valid jurisdiction. Orloff v. Willoughby, 345 U.S. 83, 97 L. Ed. 842, 73 S. Ct. 534 (1953); O'Mara ...


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