403 F. Supp. 710, 717 (D.Colo.1975). Implicit in these decisions that have accorded some measure of due process to military personnel is the existence of a legally cognizable liberty or property interest. Inasmuch as Hickey's situation is sufficiently analogous to both that of the activated reservist and that of the disenrolled cadet, I believe that I may safely assume, for the purposes of this discussion, the existence of a constitutionally protected interest.
Recognition of a legal interest, however, does not necessarily entitle Hickey to the full complement of procedural safeguards. Rather, due process is a flexible concept designed to ensure fundamental fairness, and its contours are shaped by the facts of the case. O'Mara v. Zebrowski, supra, 447 F.2d at 1089 (citing Bell v. Burson, 402 U.S. 535, 91 S. Ct. 1586, 29 L. Ed. 2d 90 (1971)). What due process requires in a particular context "depends upon the balancing of various factors, including the nature of the private right or interest that is threatened, the extent to which the proceeding is adversarial in character, the severity and consequences of any action that might be taken, the burden that would be imposed by requiring use of all or part of the full panoply of trial-type procedures, and the existence of other overriding interests . . . ." Hagopian v. Knowlton, 470 F.2d 201, 207 (2d Cir. 1972).
Viewed against these criteria, the procedures employed by the Navy in Hickey's disenrollment and activation meet minimum due process requirements. It is a well-established principle that "(persons) in the military do not enjoy the full range of rights enjoyed by civilians . . . ." O'Mara v. Zebrowski, supra, 447 F.2d at 1089; See Hagopian v. Knowlton, supra, 470 F.2d at 208; Keister v. Resor, supra, 462 F.2d at 474; Sullivan v. Mann, supra, 431 F. Supp. at 698. Hickey voluntarily entered the NROTC Scholarship Program and was apprised at the outset that failure to complete the four-year program might result in an obligation to serve on active duty in an enlisted status. Cf. O'Mara v. Zebrowski, supra, 447 F.2d at 1089 (voluntary enlisted reservists constitute class distinct from inducted servicemen). He was on notice throughout the probationary period and while on leave of absence that continued unsatisfactory performance of his NROTC obligations might result in his disenrollment and call to active duty. See discussion Supra (detailing correspondence from unit commander). Notwithstanding these repeated warnings, Hickey insists that the notice requesting his appearance before the Board of Review did not adequately inform him of the purpose of the hearing. I cannot agree. The notice not only specifically stated that the Board was being convened to evaluate Hickey's performance and to make recommendations about his future participation in the NROTC but also referenced the May 13, 1976, letter from the unit commander which had noted Hickey's marginal performance and had cautioned that compliance with the physical fitness standards was but a minimum requirement for retention. See Defendants' Exhibit No. 3 at 7-8. In my opinion, the notice was sufficiently explicit and Hickey could not reasonably have failed to understand the purpose of the hearing or to comprehend what was at stake.
Hickey further asserts that the hearing itself was constitutionally deficient because he was not informed of the right to counsel, because he was given no opportunity to present witnesses in his behalf, and because he was not afforded the right to appeal. As I have previously noted, what procedural safeguards are mandated is a function of the circumstances. Here, the disenrollment proceeding was noncriminal in nature and the action taken was not punitive; at most, it was an administrative sanction imposed for breach of the scholarship agreement. Cf. Mickey v. Barclay, 328 F. Supp. 1108, 1113-14 (E.D.Pa.1971) (activation of reservist pursuant to 10 U.S.C. § 673a regarded as administrative sanction). Second, the hearing was investigative rather than adversarial and the Navy did not proceed through counsel. Third, two of the events triggering Hickey's disenrollment his academic difficulties and his failure to pass the physical fitness test were objectively evidenced and apparently beyond dispute. Hickey was given the opportunity to explain the reasons underlying his difficulties to the Board, and inasmuch as they acknowledged his sincerity, I cannot say that Hickey was in any way disadvantaged by the lack of an opportunity to present witnesses in his behalf. See generally Wasson v. Trowbridge, 382 F.2d 807, 812 (2d Cir. 1967) (applicable safeguards depend upon whether hearing as a whole is fair).
Although the NROTC regulations do not precisely provide for appeal, they do permit the NROTC student who has been recommended for disenrollment to submit a written statement in response to the Board's findings. See generally Defendants' Exhibit No. 5, P 213(q) at 11-24 (corresponds to 32 C.F.R. § 711.213(q) (1977) ). This statement forms part of the record that is ultimately reviewed by the Chief of Naval Personnel before he makes his recommendation to the Secretary of the Navy. See generally Defendants' Exhibit No. 5, P P 213(g), 214(e), at II-21, -25 (corresponds to 32 C.F.R. §§ 711.213(g), .214(e) (1977)). Hickey contends that he was substantially prejudiced because he was denied the opportunity to respond to the unit commander's recommendation of disenrollment and activation. I cannot credit this assertion, for in my view, the statement of the unit commander simply endorsed the Board's findings and added nothing to the record. Nevertheless, Hickey argues that he should have been afforded the opportunity to contest the recommendation that he incur an active service obligation and suggests that the Secretary's failure to promulgate standards governing activation of disenrolled cadets worked to his detriment. With respect to the latter contention, the Secretary is not required to outline in detail the rules governing decisions committed to his discretion. See West v. Chafee, supra 560 F.2d at 947. With respect to the former, I cannot conceive how Hickey would have benefitted had he been provided the opportunity to respond to the recommendation that he be called to active duty. The only criterion limiting the Secretary's exercise of discretion in imposing an active duty commitment is disenrollment, and Hickey was permitted an adequate opportunity to present his explanation on that score.
Hickey's final argument relates to his certification as medically fit for active duty. He cites his various blood pressure readings and asserts that under the medical standards governing entry into naval service, he should have been disqualified for active duty. Defending Hickey's medical certification, the Navy relies upon a different set of standards, the retention standards, which list as a cause for "rejection for appointment, enlistment, and induction . . . (hypertension) evidenced by preponderant diastolic blood pressure over 90mm or preponderant systolic blood pressure over 159mm at any age." Compare Petition for Writ of Habeas Corpus, Exhibit B, article 15-16(2) (j) (entry standards) With Defendants' Exhibit No. 4, article 15-27-2-19(b) (retention standards). Unlike the challenge to the regulation relating to disenrollment and activation, the balance here tips in favor of requiring the petitioner to pursue his administrative remedies. Not only is there sufficient confusion concerning which medical standards govern in this situation but it is not at all clear whether the standards outlined in each article are absolutely disqualifying or permit the exercise of discretion. See Defendants' Exhibit No. 4, articles 15-2 to -4. A question also arises with respect to the meaning of the word "preponderant." I cannot say whether the examining physician may consider only those readings taken on a given occasion or whether he must include readings taken during prior examinations. Furthermore, it is unclear whether the physician may rely upon one reading that is within the articulated limits or whether the inclusion of the word "preponderant" implies that the physician must take several readings. Because the Navy is better able than I to make these determinations, the petitioner must first avail himself of existing in-service procedures.
For the reasons outlined above, I conclude that the petitioner is not entitled to a writ of habeas corpus, and accordingly will deny his petition.
The foregoing shall constitute the findings of fact and conclusions of law required by Fed.R.Civ.P. 52(a).