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August 15, 1980

William Douglas HODGES
Harold BROWN, Secretary of Defense and Edward Hildago, Secretary of the Navy and Admiral C. Brettschneider, Commanding Officer, 4th Naval District, Philadelphia, Penna

The opinion of the court was delivered by: WEINER


Plaintiff, an enlisted man in the United States Navy, brought this action against the defendants alleging that his enlistment is void, and that defendants have no authority to require him to complete military service or to face military justice for his unauthorized absences from duty.

 Plaintiff asks for injunctive relief from military prosecution, mandamus relief to compel the Navy to grant plaintiff an honorable discharge with attendant benefits, a writ of habeas corpus declaring plaintiff's enlistment void and retention of the plaintiff by the military unlawful, and declaratory relief. Plaintiff further contends that defendants threaten him with irreparable damage in violation of his right to due process by retaining him in their custody against his will and subjecting him to immediate prosecution before a military tribunal without the constitutional safeguards of bail and a trial by jury. Defendants filed an answer denying plaintiff's allegations. Plaintiff alleges jurisdiction of this court is conferred by 28 U.S.C.A. §§ 1331, *fn1" 1361, *fn2" 2241. *fn3" Presently before the Court is a motion of the defendants to dismiss or in the alternative for summary judgment, and a motion of the plaintiff for summary judgment. For the reasons which follow, the plaintiff's motion for summary judgment is denied, the defendants' motion for summary judgment is denied and the defendants' motion to dismiss is granted.

 Plaintiff and defendants have stipulated the following facts: On May 31, 1978, plaintiff enlisted in the Navy under the Deferred Enlistment Program and was sworn into the Regular Navy on August 25, 1978. At the time of his enlistment in the Navy, plaintiff was seventeen years old, having been born on May 13, 1961, and his parents consented to his enlistment. *fn4" Presently, plaintiff is nineteen years old. At the time of his enlistment, plaintiff was in the tenth grade at East Senior High School in West Goshen, Pennsylvania. Having completed less than eleven years of education, plaintiff was not eligible for enlistment in the Navy. Plaintiff's application for enlistment and other enlistment documents reveal that plaintiff had completed eleven years of education. Plaintiff signed a Review of Documents statement averring that the information in his enlistment documents was accurate, and also signed a statement in his enlistment agreement that he had reviewed his application for enlistment and found the information supplied by him was accurate. The assistant principal at plaintiff's high school verified that plaintiff had completed the eleventh grade by signing a form supplied to him by the recruiting office with that information already filled in on the form. This was contrary to instructions provided the recruiting office. It should have sent the school the form without that information so that the school officials could fill in the highest grade completed by the plaintiff. After completion of basic training, plaintiff was assigned to the Naval Air Technical Training Center (NATTC), located at the Naval Air Station Memphis, Millington, Tennessee. On April 3, 1979, plaintiff was charged with Article 86 of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 886, for his unauthorized absence from his organization from December 18, 1978 to February 15, 1979. This charge was referred to a Summary Court-Martial on April 4, 1979. On May 10, 1979, prior to the court-martial hearing, plaintiff commenced another period of unauthorized absence. On March 10, 1980, plaintiff surrendered himself to Naval Authorities at the Philadelphia Naval Base, where he is presently in custody.

 For the limited purpose of ruling on plaintiff's motion for summary judgment, the parties have also stipulated that the Navy recruiter knew or should have known that the plaintiff was unacceptable for military service by reason of his lack of education, but recruited plaintiff into the Navy in violation of Navy and Department of Defense Regulations.

 In support of defendants' motion for summary judgment, defendants rely upon In re Grimley, 137 U.S. 147, 11 S. Ct. 54, 34 L. Ed. 636 (1890), and the 1979 amendment to Article 2 of the U.C.M.J., 10 U.S.C.A. § 802. *fn6" In Grimley, the Supreme Court held that voluntariness and capacity are the only two requirements for a valid enlistment. Grimley, supra, at 151-153, 11 S. Ct. at 54-55. Thus, the Court rejected the petitioner's claim that his enlistment was void ab initio because he misrepresented his age to the army recruiter and therefore did not meet the age requirement at the time of his enlistment. In November, 1979, Congress specifically addressed the issue of the effect of recruiter misconduct on resulting enlistments and amended Article 2 of the U.C.M.J., 10 U.S.C.A. § 802(a), to overrule the Russo doctrine and codify the enlistment validity test of Grimley. Plaintiff contends that to apply the 1979 amendment to the present case would be unconstitutional, and that the amendment must be applied prospectively in order to avoid being classified as an ex post facto law. *fn7" Defendants contend, inter alia, that military status per se is not punishment; no ex post facto argument can therefore be made with respect to the application of the statute to determinations of military status; and that under the U.C.M.J., as amended, plaintiff became a member of the military upon taking the oath of enlistment. We need not reach the merits of plaintiff's and defendants' contentions since the concept of comity between civilian and military courts mandates that this court refrain from exercising equitable jurisdiction in this matter until the military court system has had the opportunity to hear and fully adjudicate the claims.

 It is well settled that the writ of habeas corpus is an appropriate remedy for servicemen who claim to be unlawfully retained in the armed services. Parisi v. Davidson, 405 U.S. 34, 39, 92 S. Ct. 815, 31 L. Ed. 2d 17 (1972); Schlanger v. Seamans, 401 U.S. 487, 489, 91 S. Ct. 995, 28 L. Ed. 2d 251 (1971); Oestereich v. Selective Service Board, 393 U.S. 233, 235, 89 S. Ct. 414, 21 L. Ed. 2d 402 (1968). However, the Supreme Court has stated that considerations requiring non-intervention in military proceedings are analagous to and as compelling as considerations of comity precluding equitable intervention in state criminal proceedings. Gusik v. Schilder, 340 U.S. 128, 131, 71 S. Ct. 149, 95 L. Ed. 146 (1950). Military courts, like state courts, have the same responsibilities and are equally as capable as the federal courts to protect a person's constitutional rights. Burns v. Wilson, 346 U.S. 137, 143, 73 S. Ct. 1045, 97 L. Ed. 1508 (1953).

 It is the opinion of this court that the military tribunal is capable of addressing the jurisdictional issue in the instant case. The Supreme Court has faced situations in which servicemen have requested a writ of habeas corpus when court-martial proceedings were pending, and the petitioner claimed that the military courts lacked jurisdiction. In Schlesinger v. Councilman, 420 U.S. 738, 95 S. Ct. 1300, 43 L. Ed. 2d 591 (1975), a serviceman sought to enjoin court martial proceedings on the grounds that the offenses he was charged with were not "service connected", and therefore were not within the jurisdiction of the military courts. The court declared that comity barred intervention of the federal courts while court martial proceedings were pending. The Supreme Court stated that military courts are as capable as civilian courts to determine whether the offenses were "service connected". If the military courts found that the offenses were not service connected, the tribunal would have to order dismissal of the charges, since it would lack subject matter jurisdiction. Schlesinger v. Councilman, supra, at 761, 95 S. Ct. at 1315; Accord: Apple v. Greer, 554 F.2d 105 (3d Cir. 1977); Sedivy v. Richardson, 485 F.2d 1115 (3d Cir. 1973). In the instant case, plaintiff can raise the jurisdictional issue before the military court.

 Plaintiff's requests for mandamus and declaratory judgment are dependent upon this court's granting or denial of habeas corpus relief to the plaintiff. Since we have determined that the proper forum for considering plaintiff's habeas corpus claim is in the military courts, this court will not consider plaintiff's requests for mandamus and injunctive relief.

 Finally, plaintiff's claim for injunctive relief is without merit. Hodges alleges that the defendants threaten him with irreparable injury by maintaining him in their custody against his will in violation of his right of due process and by subjecting him to immediate prosecution before a military tribunal without the constitutional safeguards of bail and a trial by jury. It is well settled, however, that when a serviceman charged with crimes by military authorities can show no harm other than that attendant to resolution of his case in the military court system, the federal court must abstain from intervening by way of injunctive relief. Schlesinger v. Councilman, supra, at 758, 95 S. Ct. at 1313; see Apple v. Greer, supra; Sedivy v. Richardson, supra.

 On Motion For Injunction Pending Appeal

 Plaintiff had brought this action alleging that his enlistment is void, asking that defendants be prevented from disciplining him for unauthorized absences from duty, and asking that he be given an honorable discharge. By Opinion and Order dated August 15, 1980, we granted the defendants' motion to dismiss the plaintiff's complaint. Presently before the court is a motion by the plaintiff to enjoin the defendants from removing plaintiff from this jurisdiction pending the hearing and determination of plaintiff's appeal to the United States Court of Appeals for the Third Circuit.

 An application for an injunction during the pendency of an appeal is made in the first instance in the district court. Rule 8(a) Federal Rules of Appellate Procedure. Thus, Hodges' motion to restrain the defendants from removing him from this ...

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