Bemis v. Whalen, Civ. No. 71-465.

• Decision Date: 12 May 1972
• Docket Number: Civ. No. 71-465.
• Citation: 341 F. Supp. 1289
• Court: U.S. District Court — Southern District of California
• Parties: Application of Richard Allen BEMIS, Petitioner, v. Captain John WHALEN, Commanding Officer, Headquarters Company, Sub-Unit No. 2, et al., Respondents.

341 F. Supp. 1289

Application of Richard Allen BEMIS, Petitioner, v. Captain John WHALEN, Commanding Officer, Headquarters Company, Sub-Unit No. 2, et al., Respondents.

Civ. No. 71-465.

United States District Court, S. D. California.

May 12, 1972.

Thomas C. Hendrix, of Rothwell, Hendrix, Peterson & Curran, San Diego, Cal., for petitioner.

Harry D. Steward, U. S. Atty., by Frederick B. Holoboff, Asst. U. S. Atty., San Diego, Cal., for respondents.

ORDER DENYING RELIEF

GORDON THOMPSON, Jr., District Judge.

By a Petition filed on December 8, 1971, as amended on January 17, 1972, the petitioner made application for a Writ of Habeas Corpus, alleging that he is unlawfully detained and restrained of his liberty by the respondents. Jurisdiction is conferred on this Court by 28 U. S.C. § 2241.

The petitioner alleges that the restraint of his liberty is illegal and void, in that he was induced to enlist in the United States Marine Corps by false representations by a Marine recruiting officer. In addition, he alleges that the Marine Corps has materially breached the petitioner's enlistment contract by failing to assign him a Military Occupational Specialty (MOS) in the 5900 (Electronics) field as guaranteed by the enlistment contract.

It appearing to the Court that there existed genuine issues as to material facts, a writ of habeas corpus was issued to the respondents, and an evidentiary hearing was conducted. Evidence was received from both parties, including the testimony of the petitioner. Now having heard the evidence and having examined all the files, documents, and records herein, the cause having been submitted for decision, and the Court being fully advised in the premises, the Court renders its decision.

FACTS

On or about April 15, 1970, the petitioner, then a high school senior, entered into an enlistment contract at Bangor, Maine, for a period of six years in the United States Marine Corps Reserve. The petitioner testified that he had not seriously considered enlisting in the military prior to the time when he discussed that possibility with a Marine Corps recruiter who visited the school prior to April 15, 1970. The petitioner had planned to enter college the following Fall, and had in fact been accepted by at least one school. Petitioner became interested in the possibility of enlisting after learning from the recruiter that certain special programs were available in the field of electronics. After taking some examinations which qualified him for the electronics program, the recruiting officer advised petitioner that he would be guaranteed an electronics specialty (5900 MOS) if he did in fact enlist.

In addition to his interest in the electronics field, the petitioner was desirous of completing his military obligation, and wanted to take advantage of certain educational benefits available to veterans under the G.I. Bill after he completed his military service. With these three factors in mind, and relying upon the representations of the recruiting officer, the petitioner enlisted in the Marine Corps Reserve for six years.

That enlistment contract (DD Form 4) indicates that the petitioner's primary MOS was 5900. That contract also contained the following:

54. I have had this contract fully explained to me, I understand it, and certify that no promise of any kind has been made to me concerning assignment to duty, geographical area, schooling, special programs, assignment of government quarters, or transportation of dependents except as indicated O F Guarantee

Following his graduation from high school the petitioner reported for active duty. On July 29, 1970, the parties executed a new DD Form 4, by which the petitioner enlisted for four years in the regular Marine Corps, this contract apparently superceding the prior reserve enlistment contract. The new contract also contained the 5900 MOS designation and the "O F" (occupational field) guarantee.

It was the petitioner's understanding throughout this initial period that his 5900 MOS training would commence upon the completion of his boot camp and advanced infantry training. The respondents have admitted that this understanding was correct.

Upon completion of boot camp and advanced infantry training petitioner was assigned as a student for duty under instruction for 15 weeks in a basic electronics course. Upon completion of that course, and in spite of the 5900 MOS guarantee, the petitioner was assigned a primary MOS of 2811 (telephone/teletype technician). Petitioner was then assigned to two additional courses within the 2811 field for a period totaling 28 weeks.

As the last of these courses neared an end, petitioner made application to the Commandant of the Marine Corps for discharge. That application, dated November 1, 1971, was based upon the same allegations raised in the instant petition. On December 6, 1971, that request was denied by the Commandant, the petitioner was ordered to report to an electronics course in the 5900 field, and petitioner's primary MOS was changed to 5900, with a secondary MOS of 2811. At that point, petitioner filed this action, and a Temporary Restraining Order was issued effectually maintaining the status quo.

LAW

Habeas corpus is the appropriate remedy to test the legality of custody under military order under 28 U.S.C. § 2241. Orloff v. Willoughby, 195 F.2d 209 (9th Cir. 1952); In re Phillips' Petition, 167 F.Supp. 139 (D.Cal.1958). A member of the armed forces can avail himself of habeas...