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HICKEY v. COMMANDANT OF THE FOURTH NAVAL DIST.

December 7, 1978

Thomas R. HICKEY
v.
COMMANDANT OF the FOURTH NAVAL DISTRICT and W. Graham Clayton, Jr. *,Secretary of the Navy and Harold Brown, Secretary of Defense.



The opinion of the court was delivered by: LUONGO

Thomas R. Hickey, a seaman currently assigned to the Naval Support Activity at the Philadelphia Naval Base, petitions this court for a writ of habeas corpus. See generally 28 U.S.C. § 2241 (1976). He challenges as violative of Navy regulations and the due process clause his call to two years of active duty in an enlisted status, a commitment incurred when he was disenrolled from the Naval Reserve Officers Training Corps (NROTC) Program at Villanova University in December 1976. In addition, he alleges that under applicable Navy regulations his high blood pressure disqualifies him for service; consequently, he asserts that his certification by the Navy physician as medically fit for active duty was also in violation of the regulations. On September 13, 1978, I ordered the respondents to show cause why the writ should not be granted, *fn1" and a hearing was held on September 28, 1978. After careful consideration of the issues raised at the hearing and elaborated by the parties in their memoranda of law, I am persuaded that the writ must be denied.

The facts in this case are largely undisputed. On January 11, 1973, Hickey volunteered for training in the NROTC Scholarship Program and executed an NROTC Scholarship Agreement. This agreement outlined Hickey's obligations as a program participant and warned that failure to complete the four-year course of instruction might result in his being called to active duty in an enlisted status. Defendants' Exhibit No. 3, P 1(d) at 1. On September 7, 1973, Hickey signed his enlistment contract and received his appointment as a midshipman in the NROTC unit at Villanova University. Defendants' Exhibit No. 1 at 12-13, 37.

 During his sophomore year, Hickey began to experience academic difficulty, and a letter dated May 30, 1975, from the commanding officer of Villanova's NROTC unit informed Hickey that he was being placed on academic probation for the Fall 1975 semester. The letter noted several problems reflected by Hickey's academic record, including his failure in one course and his deficient quality point index. The unit commander also expressed his dissatisfaction with Hickey's progress toward fulfilling his degree and his NROTC curriculum requirements and reproved Hickey for his "extensive participation in extracurricular theatrical productions." After directing Hickey not to take drama courses or to work with the theater group during the period of his probation, the unit commander admonished Hickey to review his priorities and to limit his activities to those consistent with his ability to satisfy his NROTC and college degree requirements. The letter advised Hickey that failure to correct the deficiencies might result in a leave of absence status with the concomitant loss of financial benefits for the Spring 1976 semester and that low academic proficiency might thereafter warrant disenrollment. Defendants' Exhibit No. 3 at 3. See generally Defendants' Exhibit No. 5, PP 211, 212(c) at II-14 to -17 (corresponds to 32 C.F.R. §§ 711.211, .212(c) (1977) ).

 During the Fall 1975 semester, Hickey experienced additional difficulties with the NROTC regimen when he failed to pass the required physical fitness test. *fn2" As a result, he was placed on probation for noncompliance with the physical fitness standards. A letter dated December 10, 1975, from the unit commander informed Hickey that his probation would extend through the rest of the fall semester and the holiday period, and that he would be retested before classes resumed in January 1976. Hickey was advised that he would be placed on leave of absence for the Spring 1976 semester if he did not pass the test and that his tuition benefits and subsistence allowance would be suspended until he complied with the physical fitness requirements. The unit commander warned Hickey that continued failure to meet the fitness standards might warrant disenrollment, which would entail an order to active duty in an enlisted status upon graduation. Defendants' Exhibit No. 3 at 5. Hickey failed the physical fitness test administered in January, and by a letter from the unit commander dated January 21, 1976, was placed in leave of absence status for the Spring 1976 semester. The letter instructed Hickey that he was otherwise required to participate satisfactorily in the NROTC program and that he must take the physical fitness test monthly until he passed. Hickey was again advised that repeated failure would likely result in his disenrollment. Id. at 6. See generally Defendants' Exhibit No. 5, P 212(e) at II-17 to -18 (corresponds to 32 C.F.R. § 711.212(e) (1977) ).

 Hickey had not passed the physical fitness test by the end of the Spring 1976 semester. By letter dated May 13, 1976, Hickey's leave of absence was continued throughout the summer of 1976 although he was allowed to participate in the summer at-sea training. Reiterating his dissatisfaction with Hickey's overall performance, the unit commander advised Hickey that successful completion of the at-sea training and compliance with the physical fitness standards were the minimum requirements for retention in the NROTC program. The commander warned Hickey that if he did not pass the physical fitness test by September 1, 1976, he would be recommended for immediate disenrollment and for call to active duty. Defendants' Exhibit No. 3 at 7. See generally Defendants' Exhibit No. 5, P 212(h) at II-18 to -19 (corresponds to 32 C.F.R. § 711.212(h) (1977) ).

 Hickey failed to pass the physical fitness test as required, and by letter dated September 10, 1976, from the senior member of Villanova's NROTC Board of Review, Hickey was directed to appear before the Board on September 14, 1976. *fn3" The letter incorporated by reference the unit commander's letter of May 13, 1976, noted Hickey's marginal overall performance in the NROTC unit as well as his failure to meet the physical fitness requirements, and stated that the purpose of the hearing was to evaluate Hickey's performance and to make recommendations about his future participation in the NROTC. Defendants' Exhibit No. 3 at 8. See generally Defendants' Exhibit No. 5, P 210 at II-14 (corresponds to 32 C.F.R. § 711.210 (1977) ).

 Hickey appeared before the Board as directed and answered questions about his NROTC performance, his academic deficiencies, and his failure to meet the physical fitness requirements. After the hearing, the Board submitted a report dated September 14, 1976, outlining its findings and conclusions and recommending Hickey's disenrollment. The report noted that Hickey had repeatedly failed the same math course, with the most recent failure occurring during the 1976 summer session. Hickey was at that time engaged with the theater group, and the Board believed that he had accorded a higher priority to that undertaking than to his math course. The Board found that Hickey's extracurricular activities required an excessive time commitment and that Hickey had failed to demonstrate the self-discipline necessary to budget his time to meet his academic obligations and the NROTC program requirements. Although the Board credited the sincerity of Hickey's desire to comply with the demands of the academic and NROTC regimens and to serve as a commissioned officer, it nevertheless concluded that Hickey's past performance indicated a lack of motivation and reliability, and that his future performance as a naval officer would most likely be substandard. Defendants' Exhibit No. 3 at 10-11.

 Hickey received a copy of the Board's report on September 15, 1976, with the direction to submit a written statement in response to the recommendation of disenrollment. See id. at 9. See generally Defendants' Exhibit No. 5, P 213(q) at II-24 (corresponds to 32 C.F.R. § 711.213(q) (1977) ). On September 17, 1976, the unit commander appended his statement to the Review Board's report, concurring in its findings. The commander referred to Hickey's unfulfilled promises of improvement and recommended that Hickey be disenrolled for academic reasons and for inaptitude based upon both his failure to meet the physical fitness requirements and his low aptitude evaluations. The commander also recommended that Hickey be ordered to serve two years of active duty upon graduation. Defendants' Exhibit No. 3 at 12. See generally Defendants' Exhibit No. 5, P 213(g)(3) at II-21 (corresponds to 32 C.F.R. § 711.213(g)(3) (1977) ).

 Hickey responded to the report of the Review Board on September 30, 1976. In his written statement, he acknowledged that he understood the import of the proceedings and that he had been treated fairly. He outlined the reasons for his difficulties with the physical fitness requirements and responded to the Board's statement that he had accorded a higher priority to his work with the theater than to his math course. Defendants' Exhibit No. 3 at 14-16.

 On October 6, 1976, the unit commander submitted the disenrollment report to the Chief of Naval Education and Training, who endorsed the recommendation of disenrollment and active enlisted service. Id. at 17. The Chief of Naval Education and Training forwarded the report to the Chief of Naval Personnel on November 3, 1976. Id. The Chief of Naval Personnel reviewed Hickey's record and on November 18, 1976, recommended to the Secretary of the Navy that Hickey be disenrolled. Id. at 19. The Chief of Naval Personnel also requested permission to assign Hickey to two years active enlisted service. Id. On November 19, 1976, Hickey's disenrollment as well as his order to active enlisted service were approved by the Assistant Secretary of the Navy. Id. On November 23, 1976, the Chief of Naval Personnel, enclosing correspondence to be forwarded to Hickey, notified the commander of the Villanova University NROTC unit that the Secretary of the Navy had approved both Hickey's disenrollment and call to active duty upon graduation. Id. at 18, 20. On December 2, 1976, the unit commander informed Hickey that his disenrollment had been approved and enclosed the November 23, 1976, correspondence from the Chief of Naval Personnel advising Hickey of his reversion to enlisted status in the Naval Reserve and of his obligation to serve two years' active duty upon graduation. Id. at 21, 18.

 In July 1978, Hickey received notice that he would be activated in August 1978. Id. at 23. Shortly thereafter, he wrote to both President Carter and the Chief of Naval Personnel, proposing to repay the benefits received under the NROTC scholarship program. Id. at 24-25; See id. at 27. Both the Assistant Secretary of the Navy, replying on behalf of President Carter, and the Assistant Chief of Naval Personnel rejected Hickey's appeal. Id. at 27-29.

 Hickey's active duty orders were issued on August 24, 1978, and he was ordered to report for a physical examination on August 28, 1978. Defendants' Exhibit No. 1 at 24. Hickey appeared for his physical and filled out the required medical history form, noting his suspicion that he suffered from high blood pressure. Defendants' Exhibit No. 2 at 6. The two blood pressure readings taken during the August 28, 1978, examination were 148/98 and 160/94, and Hickey was not qualified for duty at that time. Id. at 5. Hickey underwent a second examination on September 1, 1978, at which time his blood pressure registered 152/92, 148/92, 144/84, and 136/82. Id. at 2. When he returned for a third examination on September 8, 1978, his blood pressure was 158/88, and he was cleared for active duty. Id. at 3. He was ordered to report to the Naval Support Activity at the Philadelphia Naval Base where he began his active enlisted service on September 11, 1978. See Defendants' Exhibit No. 1 at 23. Although Hickey was subsequently directed to report to the U.S.S. Sellers in Charleston, South Carolina, the Navy agreed to defer Hickey's assignment out of this district pending action on the petition for a writ of habeas corpus.

 Hickey attacks his activation on several grounds. First, he argues that P 213(t) of the regulations prescribed by the Chief of Naval Education and Training for the administration and management of the NROTC program mandates an active enlisted service obligation only where the NROTC student refuses to accept his commission or is determined to have wilfully violated his agreement. See generally Defendants' Exhibit No. 5, P 213(t) at II-25 (corresponds to 32 C.F.R. § 711.213(t) (1977) ). Hickey contends that no such determination was made with respect to his disenrollment and that the Secretary in imposing a two year active duty obligation therefore acted in violation of the regulation. Second, Hickey challenges on due process grounds the procedures employed by the Navy in the disenrollment and activation determinations. He alleges that the notice did not adequately explain the purpose of the hearing before the Review Board; he asserts that he was not advised of the right to counsel, that he was not given an opportunity to present witnesses or evidence on his behalf, and that he was not given the right to appeal; and he complains that he was denied the opportunity to contest the recommendation to call him to active duty. Hickey's third argument derives from the physical standards for entrance into the naval service outlined in the Navy's medical department manual. See generally Defendants' Exhibit No. 4, art. 15-6. Specifically, Hickey relies upon article 15-16(2)(j), which lists as a cause for rejection hypertension evidenced by "preponderant (blood pressure) readings of 140mm or more systolic in an individual 35 years of age or less . . . (or) over 90mm diastolic (in an individual of any age)." Petition for Writ of Habeas Corpus, Exhibit B. He suggests that according to this article, his blood pressure readings disqualify him from active duty and that his certification as medically fit was therefore made in violation of Navy regulations.

 The Navy advances two arguments which it contends preclude judicial review of both the initial determination to call Hickey to active duty and the Navy physician's certification that Hickey was medically fit. The Navy first argues that each decision involved the exercise of military discretion and as such is insulated from judicial scrutiny by the firmly entrenched judicial rule cautioning noninterference with legitimate military judgments. Second, the Navy contends that Hickey ...


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