Bluth v. Laird

• Decision Date: 23 December 1970
• Docket Number: No. 14962.,14962.
• Citation: 435 F.2d 1065
• Parties: Mordecai BLUTH, Appellant, v. Melvin LAIRD, Secretary of Defense, Stanley R. Resor, Secretary of the Army, Hal B. Jennings, Jr., Surgeon General of the United States Army, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

435 F.2d 1065 (1970)

Mordecai BLUTH, Appellant, v. Melvin LAIRD, Secretary of Defense, Stanley R. Resor, Secretary of the Army, Hal B. Jennings, Jr., Surgeon General of the United States Army, Appellees.

No. 14962.

United States Court of Appeals, Fourth Circuit.

Argued October 8, 1970.

Decided December 23, 1970.

Nathan Lewin, Washington, D. C. (Miller, Cassidy, Larroca & Lewin, Washington, D. C., on brief) for appellant.

Gilbert K. Davis, Asst. U. S. Atty. (Brian P. Gettings, U. S. Atty., on brief) for appellees.

Before HAYNSWORTH, Chief Judge, and BOREMAN and WINTER, Circuit Judges.

WINTER, Circuit Judge:

Plaintiff, Major Bluth, is a physician and an officer in the United States Army who is assigned to DeWitt Army Hospital in Fort Belvoir, Virginia, but who is presently under orders to report for duty in Vietnam. In his complaint filed with the district court, he alleged that the Army had failed to follow its own regulations in (1) processing his "Request for Deletion from Overseas Levy," and (2) refusing to afford him an officers' basic training course prior to being sent overseas. He also alleged that the Army's decision denying him a deferment from overseas duty was arbitrary and irrational, and that as a matter of substantive due process the deferment could not be denied him. The relief sought was mandamus, pursuant to 28 U.S.C.A. § 1361, to compel the Army to comply with its applicable regulations in these two matters, and an injunction, pursuant to 28 U.S.C.A. § 1331, to restrain the denial of procedural and substantive due process of law.

Following a hearing, the district judge dismissed the complaint, and, at the same time, dissolved a temporary restraining order which had been issued against the Army's reassigning plaintiff pending the disposition of the case. Upon the denial by the district judge of a motion for an injunction pending appeal, a similar motion was made to a single judge of this court pursuant to Rule 8 of the Federal Rules of Appellate Procedure. In order to avoid the possibility that Major Bluth might be sent overseas before the disposition of this appeal, the motion was granted. Upon consideration of the merits, we reverse on the ground that the record clearly indicates that the Army failed to comply substantially with its own regulations in processing the request for deferment from overseas duty. Because we reach this result, we find it unnecessary to consider if the Army properly waived the requirement that Major Bluth be given basic training and to pass upon Major Bluth's contention that the fifth amendment requires that his deferment request be granted.

I

Major Bluth enrolled in the Army's "Berry Plan" in September, 1965. Under the terms of this plan, he was to be immediately commissioned a reservist, which in fact occurred in February, 1966, with the condition that he would be ordered to active duty upon completion of his residency in his medical speciality. Prior to the termination of his residency on July 1, 1969, Major Bluth was ordered to report to Fort Sam Houston, Texas, for the officers' basic training course which is required for newly commissioned officers after entry on active duty by Army Regulation 350-5(23) (a) (1). These orders were subsequently revised so that he reported on July 1 directly to DeWitt Army Hospital at Fort Belvoir, Virginia, where he has served as Chief of Anesthesia up to the present time.

On October 12, 1969, while at Fort Belvoir, Major Bluth again received orders to report to Fort Sam Houston for the basic training course. However, these orders were also superseded, this time at the instance of the commanding officer of DeWitt Army Hospital who stated that Major Bluth, as the only anesthesiologist at the hospital, was indispensable at that time.

Major Bluth received orders on May 12, 1970, reassigning him to Vietnam on August 1, 1970. This prompted him to submit a "Request for Deletion from Overseas Levy" pursuant to Army Regulation 614-30, which deals in part with temporary deferments from overseas duty.¹ The basis of his request was the acute asthmatic condition of his son Simcha, approximately 5½ years old at the time. This condition was first discovered in July, 1966, subsequent to Major Bluth's enrollment in the "Berry Plan." The child's attacks were often so severe that emergency treatment by his father and prolonged periods of hospitalization (in December, 1966, and July, 1967), were required. The affidavits of attending physicians which accompanied Major Bluth's request indicated that the father's absence would have a deleterious effect on the child's health in light of the medical expertise of the father and the inability of the mother and other relatives to help care for the child.² In the opinion of the physician who attended Simcha from July, 1966, until June, 1969, "Simcha's health and welfare depend solely upon the close individual medical attention that may be administered by his father, Dr. Bluth, otherwise, the child's life may be compromised."

Major Bluth's initial request for deletion from overseas duty was submitted on June 1, 1970. On June 4, his commanding officer, Colonel Robert E. Neimes of the Medical Corps, forwarded the application to the Adjutant General of Fort Belvoir with the following notation: "While this request does not fit the strict criteria as outlined in AR 614-30, I feel there is some merit in the case; therefore, it is forwarded for consideration." A warrant officer, designated "Assistant Adjutant General," wrote on the file "Recommend disapproval," without any further statement, and sent it to the office of the Commanding General of the First Army. On June 20, a Major in the Commanding General's office, also titled "Assistant Adjutant General," forwarded the documents to the Surgeon General's office with the single notation, "Forwarded for consideration."

The request was received in the Surgeon General's office by Colonel Dwight F. Morss, who gave the file to both a "Medical Consultant" and a "Psychiatry Consultant." The "Medical Consultant's" remarks stated only that the conditions described in the request failed to meet established criteria of the regulations, without specifying in what respect, and that unfavorable consideration was recommended. The "Psychiatry Consultant" gave the same recommendation, citing as his reason that the conditions described were physical rather than psychiatric in nature.

Finally, the file was submitted to a review board within the Surgeon General's office consisting of a member of the Medical Corps, a member of the Nurse Corps, and a member of the Dental Corps. Their complete formal disposition of the case is contained in the following sentence: "Recommend disapproval as based on insufficiently compelling compassionate consideration in accordance with established criteria." This disposition was approved by the Director of Personnel and Training, and Major Bluth was informed of the result.

On July 15, Major Bluth submitted an application for reconsideration of his request for deferment from overseas duty. An accompanying affidavit of a doctor at DeWitt Army Hospital noted that the child had suffered further attacks "which have apparently been precipitated by his father's impending departure." This affidavit further stated that it would be "unwise at this time to remove the father from the household." The application was forwarded directly to the Surgeon General's office where a second compassionate review board, consisting of two physicians and the same dentist, denied the request "due to insufficiently compelling medical and compassionate considerations in accordance with established criteria."

Prior to filing his second request for deferment from overseas duty, Major Bluth submitted a formal application asking that he be given the officers' basic training course before being sent to Vietnam. This application was denied on the ground that a memorandum of the Deputy Chief of Staff for Personnel, dated February 5, 1970, gave the Surgeon General the power to waive this requirement and "because during his more than one year of active duty this officer has gained sufficient orientation not to warrant his attendance at the Officer Basic Course at the USA Medical Field Service School."

Upon notification of this decision, as well as the second denial of his deferment request, Major Bluth filed his complaint in this action on July 28, 1970.

II

Chapter 3 of AR 614-30 deals with temporary deferments. Section 3-1 states generally that the granting of a deferment "results in a temporary under-strength in the oversea command involved which decreases to some extent the operational readiness of that command." As a result "the granting of deferments, therefore, must be carefully and actively controlled and held to an absolute minimum." As further statement of general considerations, this section sets forth that "normally, consideration will not be given to requests submitted immediately prior to departure from home station when circumstances indicate that the condition has existed for a considerable period of time or if the condition existed or was reasonably foreseeable at the time of entry on active duty."

The following section, § 3-2, sets forth the criteria for temporary deferment. Basically, they are two: illness and financial or domestic hardship. There is no claim in this case of financial or domestic hardship so that we need consider only the former criterion as to which the section provides, in pertinent part:

Personnel alerted for oversea commands may be granted temporary deferment when compliance with such orders will impose hardship upon the individual or his family under the following criteria:

a) Illness of member of the family of the individual (father, mother, spouse, child, sister, brother, or a person in loco parentis), provided that

(1) In the opinion of the attending physician, the —

(a) * * *; or

(b) Illness is of such a nature that the

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