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WITTER v. PENNSYLVANIA NATL. GUARD

December 14, 1978

Thomas C. WITTER
v.
PENNSYLVANIA NATIONAL GUARD, Major General Harry Mier, Commonwealth of Pennsylvania



The opinion of the court was delivered by: BRODERICK

MEMORANDUM

Plaintiff, a former employee and member of the Pennsylvania National Guard, has sued the Pennsylvania National Guard, the Adjutant General of the Pennsylvania National Guard, Major General Harry Mier, *fn1" and the Commonwealth of Pennsylvania, seeking backpay, benefits, and attorney's fees, claiming that the defendants should have given him a military leave of absence at the time he volunteered for active duty in Vietnam, and reinstated him to his former position or a comparable one upon his return. Plaintiff brings this action pursuant to the Military Selective Service Act of 1967, 50 U.S.C. App. §§ 451 et seq., the Vietnam Era Veterans Readjustment Assistance Act of 1974, 38 U.S.C. §§ 2021 et seq., and the Civil Rights Act of 1871, 42 U.S.C. § 1983, *fn2" and raises a pendent claim under the Pennsylvania Military Leave of Absence Act, 51 P.S. §§ 7301 et seq. The parties entered into a stipulation as to all of the essential facts except the substance of the conversations between the plaintiff and his commanding officer at the time he volunteered for active duty. A brief trial on the issue of liability was held before the court, sitting without a jury. For the reasons hereinafter stated, the court finds for the plaintiff and against the defendants on the issue of liability.

 From July 1965 until July 1967, the plaintiff was employed in a full-time civilian capacity by the Pennsylvania National Guard. He worked as a staff training assistant for a National Guard unit in Philadelphia. As was required of technicians, the plaintiff was also a member of the National Guard unit for which he worked.

 In mid-1967, the American involvement in Vietnam was building, and plaintiff considered volunteering for active duty. He testified that he asked the advice of his commanding officer, Lieutenant Colonel, now General, Merrill W. Goss, and that General Goss told him that his job would be available for him upon his return from active duty should he decide to volunteer. General Goss testified that he did not recall having told the plaintiff that his job would be available to him upon his return, but did recall discussing with the plaintiff his determination to volunteer for active duty.

 Having decided to volunteer for active duty in Vietnam, the plaintiff sought the advice of his superior officers as to how to proceed. On June 23, 1967, the Adjutant of plaintiff's National Guard unit wrote to him:

 
From indications in your letter you definitely desire to go on active duty . . . . If so, please indicate in your reply and attach a letter of resignation from the position as Training Assistant in the Squadron. In addition, letter of resignation should indicate that resignation requested is effective immediately.

 The plaintiff responded by letter, stating "In compliance with above referenced letter I hereby resign my position as Staff Asst Trng for the 223D effective upon receipt of active duty orders." The Adjutant returned plaintiff's letter of resignation with instructions that "Letter of resignation should be submitted with an effective date of writing or statement "immediately'. Further, when submitting letter do not use reference to our letter." On July 12, 1967, the plaintiff submitted the following letter of resignation: "Effective immediately I hereby resign my position as Staff Assistant (Trng) for the 223D Cav." Plaintiff was ordered to active duty and sent to Vietnam. *fn3"

 In February of 1969 and again in May of 1969, before his anticipated release from active duty, the plaintiff wrote to the Pennsylvania National Guard and asked to return to his former job, or, alternatively, a similar position. After his return to Philadelphia, plaintiff contacted defendants' representatives and requested re-employment. Defendants refused to re-employ him, stating that his previous job had been filled and that there was no similar position available.

 On October 1, 1970, plaintiff found employment with the Veterans Administration. He now seeks a judicial determination of his claim that the Guard should have given him a military leave of absence at the time he volunteered for active duty in Vietnam, and reinstated him to his former position or a comparable one upon his return.

 Plaintiff contends that he was entitled to re-employment pursuant to the Military Selective Service Act of 1967, 50 U.S.C. App. § 451 et seq., and the Vietnam Era Veterans Readjustment Assistance Act of 1974, 38 U.S.C. §§ 2021 et seq.

 The Military Selective Service Act of 1967 provides in pertinent part:

 
§ 459. Separation from service
 
(b) Reemployment rights
 
In the case of any such person who . . . has left or leaves a position . . . in the employ of any employer and . . . (2) makes application for reemployment within ninety days after he is relieved from such training and service . . .
 
(A) if such position was in the employ of the United States Government, its Territories, or possessions, or political subdivisions thereof, or the District of Columbia, such person shall
 
(i) if still qualified to perform the duties of such position, be restored to such position or to a position of like seniority, status, and pay; . . .
 
(C) if such position was in the employ of any State or political subdivision thereof, it is declared to be the sense of the Congress that such person should
 
(i) if still qualified to perform the duties of such position, be restored to such position or to a position of like seniority, status, and pay; . . .

 The Vietnam Era Veterans Readjustment Assistance Act of 1974 provides in pertinent part:

 
§ 2021. Right to reemployment of inducted persons; benefits protected
 
(a) In the case of any person who is inducted into the Armed Forces of the United States under the Military Selective Service Act (or under any prior or subsequent corresponding law) for training and service and who leaves a position (other than a temporary position) in the employ of any employer in order to perform such training and service . . . makes application for ...

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