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July 25, 1979

John Francis McCOURT, III
T. J. CULKIN et al.

The opinion of the court was delivered by: BRODERICK


Plaintiff instituted this habeas corpus proceeding to challenge his having been ordered to two years of active duty in the United States Navy in an enlisted status following his disenrollment from the Naval Reserve Officers Training Corps (NROTC) Program at Villanova University. Presently before the Court is defendants' motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted, *fn1" which the Court has treated as a motion for summary judgment because the following matters outside the pleadings have been presented to and not excluded by the Court: *fn2" the proceedings from the Board for Correction of Naval Records (BCNR) in the plaintiff's case, the Navy's administrative record for the plaintiff, and certain Department of Defense directives and Navy regulations. For the reasons hereinafter set forth, we will grant the defendants' motion for summary judgment, there being no genuine issue as to any material fact.

 The undisputed facts can be summarized as follows: Plaintiff enrolled in the NROTC Program as a freshman at Villanova University in September 1972. On November 29, 1972, plaintiff executed a Contract Student (NROTC) Agreement, pursuant to which he promised to complete the NROTC Program, to accept a commission if one was offered, and to serve on active duty for an appropriate period of time after accepting a commission. The contract also provided that in the event the plaintiff failed to complete satisfactorily the requirements for commissioned grade, he could be ordered to active duty in an enlisted status. *fn3" Plaintiff was placed on academic probation by NROTC in February 1973 and granted academic leave of absence from June 1973 until September 1974. In the spring of 1975, at the end of his junior year, plaintiff ranked at the bottom of his class in aptitude, and his suitability for commissioned service was questioned by his NROTC class adviser. In the summer of 1975 plaintiff served on a six-week cruise; his aptitude report in connection with the cruise stated that he was lacking in aptitude and concluded that he should not be recommended for commissioning. An Aptitude Review Board, composed of three officers from the Naval Unit and an associate professor of the faculty of Villanova University, convened on October 23, 1975 for the purpose of evaluating the plaintiff's performance and making recommendations concerning his further participation in the NROTC Program. The majority of the Board found that the plaintiff would be unable to perform at the level required of an Ensign and recommended that he be disenrolled for inaptitude on the ground that he was unable to handle the leadership responsibility of a commissioned naval officer. *fn4" The professor of naval science recommended disenrollment of the plaintiff on November 14, 1975, pursuant to CNETINST 1533.12A P 213(n), which provides:

(1) The professor of naval science shall recommend disenrollment of any NROTC student who has demonstrated a lack of officer aptitude as to make his further retention unjustified.
(2) Inaptitude disenrollment recommendations are not limited to but may include any of the following:
(a) General lack of aptitude for commissioned naval service
(b) Unsatisfactory leadership qualities
(c) Unsatisfactory acceptance of responsibility
(d) Failure to complete "own request" disenrollment.

 The Chief of Naval Personnel on December 16, 1975 obtained authority from the Secretary of the Navy to disenroll the plaintiff effective December 23, 1975. In December 1976, plaintiff received orders to report for active duty as a Navy Seaman for two years. Pursuant to an agreement of the parties, the Court issued an order restraining defendants from placing plaintiff on active duty and stayed this litigation so that the plaintiff could pursue his administrative remedy by applying to the BCNR for correction of his naval records. In his application to the BCNR, the plaintiff contended that he had been activated to involuntary enlisted service without either statutory or regulatory authority under 10 U.S.C. § 2105 and Chief of Naval Education and Training Instruction 1533.12A (CNETINST 1533.12A). By letter dated March 16, 1979, the BCNR denied the plaintiff's application.

 The issue raised by the parties in connection with the defendants' motion for summary judgment is whether the Secretary of the Navy had the authority to order the plaintiff to enlisted service.

 The applicable statute is 10 U.S.C. § 2105, which provides in pertinent part:

A member of the program . . . who does not complete the course of instruction, or who completes the course but declines to accept a commission when offered, may be ordered to active duty by the Secretary . . . to serve in his enlisted grade or rating for such period of time as the Secretary prescribes but not for more than two years.

 The plaintiff contends that he completed the course of instruction and that he did not decline to accept a commission. The defendants, on the other hand, contend that the plaintiff did not satisfactorily complete the course of instruction in that he was disenrolled for inaptitude. It seems clear that the term "complete" as used in 10 U.S.C. § 2105 means to "complete satisfactorily" and that the plaintiff's failure to satisfactorily complete his course of instruction, as evidenced by his disenrollment from the program, made him eligible to be ordered to active enlisted duty pursuant to 10 U.S.C. § 2105. *fn5" Hickey v. Commandant of Fourth Naval District, 461 F. Supp. 1085 (E.D.Pa.1978); Greenblatt v. Schlesinger, C.A. No. B-74-1204 (D.Md. Dec. 28, 1976), Aff'd per curiam sub nom. Greenblatt v. Brown, 577 F.2d 734 (4th Cir. 1978). Although the issue of the Secretary of the Navy's statutory authority was not questioned in Hickey, supra, the court discussed the applicable Navy regulations on the ground that 10 U.S.C. §§ 2105, 2107(f) granted the discretionary authority to the Secretary to order a disenrolled NROTC student to active enlisted duty. In Greenblatt v. Schlesinger, which was affirmed by the Fourth Circuit on the basis of the opinion rendered by the district court, the issue presented was whether the decision to disenroll the plaintiff and order him to active enlisted duty was arbitrary or capricious. The district court concluded that the Navy acted within its statutory authority in having ordered to active duty an NROTC student disenrolled on the basis of a finding of inaptitude. It has been the customary practice of the Navy to order to active enlisted service disenrolled advanced NROTC college program students, as stated by the Chief of Naval Personnel in his request to the Secretary of the Navy for authority to call the plaintiff to active enlisted service. In that request, the Chief of Naval Personnel set forth his determination that "the circumstances of (plaintiff's) ...

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