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June 12, 1980


The opinion of the court was delivered by: LORD, III

Petitioner Richard J. Santos, a member of the United States Naval Reserve, seeks a writ of habeas corpus ordering his release from active duty in the United States Navy. Petitioner was called to active duty for a period of sixteen months under the authority of 10 U.S.C. § 673a because he failed to attend the requisite number of training drills. Petitioner challenges his activation as a violation of his contractual and constitutional rights. Alternatively, he claims that the Navy unlawfully denied his request for a hardship discharge. In addition to habeas corpus relief, petitioner seeks damages against two Navy officers for their allegedly unlawful conduct. *fn1" I will grant the writ and dismiss the claim for damages.


 The parties originally submitted this case for decision on cross-motions for summary judgment based on a documentary record consisting primarily of petitioner's service record. I denied the motions. Upon review of the record, it was clear that although the parties agreed upon the predicate facts, they sharply disputed the inferences to be drawn from them on several important issues, thereby precluding summary judgment. A hearing was then held at which the petitioner was the only witness. The Navy introduced petitioner's service record and certified copies of pertinent Navy regulations. The following opinion constitutes my findings of fact and conclusions of law as required by Fed.R.Civ.P. 52(a).

 Navy regulations required Santos to attend or be excused from ninety percent of forty-eight regularly scheduled training drills, or forty-three drills each year while in the Reserve. See BuPerInst 5400.42E PP 302-04. This requirement is applied on a rolling basis so that a reservist is subject to recall at any time he has accounted for less than forty-three meetings in the preceding year. At the time of his recall, Santos had attended or had been excused from only forty-two drills in the preceding twelve months. Santos admits that he fell short of the requirement, but maintains that he did so in reliance on an official Navy document that stated the annual drill requirement to be forty rather than forty-three drills. Petitioner signed this document, called a "Statement of Acknowledgement," on May 1, 1979. At that time Santos was still capable of complying with the drill requirement. All now concede that the figure given in the May 1 "Statement of Acknowledgement" was erroneous, but Santos asserts that he believed the figure to be correct and relied upon it.

 Santos enlisted in the Navy on October 18, 1974 under the Ready Mariner Program, which permitted him to serve most of his military obligation as a drilling reservist. He was trained as a Hospitalman and released to the Naval Air Reserve Unit at Lakehurst, New Jersey as a grade E-2 Hospitalman Apprentice on May 25, 1975. For the next several years he maintained a satisfactory drill attendance record. Beginning in September 1978, however, his attendance fell off and from December 1978 through March 1979 Santos attended no drills. It appears that these absences were due to family problems, in particular the illness of his father in Baltimore.

 Santos was informed by letter dated March 1, 1979 from the Commanding Officer, Naval and Marine Corps Reserve Center, West Trenton, New Jersey that his prior absences would "be disregarded for drill monitoring purposes." Exactly why this wholesale excuse was granted is not clear, but it seems that Santos was not given notice of his missed drills as required by Navy regulations. The effect of the excuse was to give Santos full credit for six months of drills, or a total of twenty-four, even though he had actually attended only six of them. For the remainder of the year, Santos attended eighteen drills and missed six, bringing his total at the time he was recalled to forty-two attended or excused drills for the year. As of May 1, however, Santos had accumulated only four absences and was thus still capable of satisfying the correct drill requirement.

 The parties agree that Santos was informed of his drill obligation several times before he signed the May 1 "Statement of Acknowledgement." All of the following documents are part of Santos's service record:

(2) 10/18/74. On the day of his enlistment Santos signed a "Statement of Acknowledgement" identical in format to the May 1, 1979 statement. This document stated, again incorrectly, that Santos was "require(d) " to attend forty-eight drills annually. No mention was made of excused absences or a percentage attendance requirement.
(3) 3/6/76. Santos received a form letter which stated: "You are required to attend at least 90% of regularly scheduled drills for your unit training and pay category, i.e. TCAT "A' = 48, TCAT "B' = 24." The actual number of drills required or absences permitted does not appear nor is the designation "TCAT" explained.
(4) 7/6/76. Santos received a form notice of two missed drills for the previous month. Taking a completely different approach, the notice simply stated that "on the occasion of missing the 6th drill" Santos would be activated unless the absence was excused.
(5) 3/1/79. Santos was notified that his prior absences would be "disregarded." The letter went on to say that he would still be required to attend "90% of regularly scheduled drills" without referring to the number of drills required or absences permitted.
(6) 3/21/79. Santos received another form notice of missed drills similar to the one he received in July 1976 referring only to the consequences of missing a "6th drill." *fn2"

 On May 1, 1979 Santos signed a "Statement of Acknowledgement," *fn3" "to document my understanding of the explanation of the laws and regulations affecting my enlistment . . . ." The statement provided explicitly that pertinent statutes and regulations "may change without notice and that such changes may affect my status as a member of the Naval Reserve and obligations to serve as such." The statement further provided: "Satisfactory participation in the Ready Reserve requires my attendance annually at 40 drills of the unit to which assigned . . . ." The statement was given to Santos by the Career Counselor for his reserve unit with instructions to "read and sign it," which he did. Later and out of the presence of petitioner his signature was "witness(ed)" by the signature of LCDR J. A. Franco, the Commanding Officer of the Naval and Marine Corps Reserve Center at West Trenton, New Jersey.

 On August 8, 1979 Santos missed two drills and was immediately nominated for active duty by his commanding officer. The nomination was mandatory, but the commanding officer recommended against recall. Santos's request for an excuse submitted August 11 was not granted and on September 19, 1979 recall orders were issued by the respondent Franklin, Commander of the Naval Reserve Readiness Command, Fourth Region. On October 10, 1979 Santos requested a hardship discharge from the Navy or, alternatively, from active duty. His commanding officer did not recommend approval and the discharge was denied two days later.

 On October 23, 1979 Santos reported for active duty. On October 29 he consulted Navy legal assistance officer Lt. John J. Chernoski. Based on that interview, Lt. Chernoski wrote to the Commander of Naval Military Personnel Command recommending that Santos should be returned to reserve status because he had been misled about the drill requirement by the May 1 "Statement of Acknowledgement." Chernoski also advised reconsideration of the request for discharge. The recommendation was repeated in two later messages, but was not accepted.

 On November 8, 1979, two weeks after reporting to active duty, Santos signed an amended "Statement of Acknowledgement." This document was identical to the May 1 statement save for two changes. The November 8 statement stated correctly that as a reservist Santos was required to attend forty-three drills annually. This was the first occasion during petitioner's military service that he was correctly informed of the actual drill requirement and the only time he was given a figure stated in terms comparable to those in the May 1 statement. The November 8 statement also provided: "This entry supersedes your 1 May 79 Acknowledgement . . . ."

 Santos commenced this action on January 16, 1980. The next day, Judge VanArtsdalen entered a preliminary injunction restraining naval authorities from transferring petitioner out of the Philadelphia area. Petitioner is presently on active duty.


 The federal courts have habeas corpus jurisdiction under 28 U.S.C. § 2241(c) (1) to consider claims of unlawful detention by members of the armed forces. The activation of petitioner from the ready reserve to active military service satisfies the jurisdictional requirement of "custody." Meck v. Commanding Officer, Valley Forge General Hosp., 452 F.2d 758, 760 (3d Cir. 1971).

 Judicial authority in military affairs is circumscribed, however, both constitutionally by the doctrine of separation of powers and prudentially by deference to the special competence of the military and its need to maintain "good order." See Brown v. Glines, 444 U.S. 348, 100 S. Ct. 594, 62 L. Ed. 2d 540 (1980); Burns v. Wilson, 346 U.S. 137, 73 S. Ct. 1045, 97 L. Ed. 1508 (1953). Because prudential considerations do not apply equally in every case, the scope of judicial review of military decisions varies across a wide spectrum depending upon the character of the action challenged. See Peavy v. Warner, 493 F.2d 748 (5th Cir. 1974). Core military activity, such as the deployment of troops, is committed entirely to the judgment of military authorities and is reviewable, if at all, only for gross abuse of discretion. See Orloff v. Willoughby, 345 U.S. 83, 73 S. Ct. 534, 97 L. Ed. 842 (1953); Byrne v. Resor, 412 F.2d 774 (3d Cir. 1969). Similarly, the discretionary denial of an application for discharge as a conscientious objector is reviewed under the extremely lenient "basis in fact" standard. Parisi v. Davidson, 405 U.S. 34, 92 S. Ct. 815, 31 L. Ed. 2d 17 (1972). But other sorts of questions, such as the interpretation of contracts, are more familiar to judges. Not only are such questions better suited to judicial review, but the degree of interference in military affairs is necessarily limited when the court can, at most, order the military respondent to do what it has already undertaken to do. O'Mara v. Zebrowski, 447 F.2d 1085, 1087 (3d Cir. 1971); Smith v. Resor, 406 F.2d 141, 146 (2d Cir. 1969). Thus, it has long been settled that on petition for habeas corpus the federal courts may consider service members' enlistment contract claims and decide them according to traditional principles of contract law. See In re Grimley, 137 U.S. 147, 11 S. Ct. 54, 34 L. Ed. 636 (1890); Peavey, 493 F.2d at 750; Mellinger v. Laird, 339 F. Supp. 434 (E.D.Pa.1972). *fn4"

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