Clark v. United States, 449-70.

• Decision Date: 16 June 1972
• Docket Number: No. 449-70.,449-70.
• Citation: 198 Ct. Cl. 593,461 F.2d 781
• Parties: Jerry K. CLARK et al. v. The UNITED STATES.
• Court: U.S. Claims Court

198 Ct. Cl. 593, 461 F.2d 781 (1972)

Jerry K. CLARK et al. v. The UNITED STATES.

No. 449-70.

United States Court of Claims.

June 16, 1972.

David H. Bodiker, Columbus, Ohio, for plaintiffs. Dwight A. Teegardin, Columbus, Ohio, atty. of record.

Charles M. Munnecke, Washington, D. C., with whom was Asst. Atty. Gen. L. Patrick Gray, III, for defendant.

Before COWEN, Chief Judge, and DAVIS, SKELTON, NICHOLS, KASHIWA and KUNZIG, Judges.

SKELTON, Judge.

The plaintiffs, Jerry K. Clark, Kenneth L. Gebhart, William E. Masters, Harold L. Miller, John E. Murrell, and Ronald K. Williams, have filed this suit against the United States claiming damages in the total sum of $263,935.40 for an alleged breach of contract. We have concluded that the plaintiffs are not entitled to recover.

The facts are basically as follows. The plaintiffs were members of the Air National Guard with membership in the Reserve components of the United States Air Force. Each of them had executed a Ready Reserve Agreement as follows:

READY RESERVE AGREEMENT

* * * * * *

I agree to (accept) or (retain) membership in the Ready Reserve for a period to expire on the date of my fifth first annual Military Personnel Record Review (or the date of expiration of my enlistment whichever comes earlier), following the effective date of this agreement.

I certify that I am immediately available for extended active duty (1) in time of war or National emergency declared by Congress; (2) in a National emergency declared by the President, or (3) when otherwise authorized by law. I understand the Air Force can in the event of partial or full mobilization, order me to enter active military service at any time during the period of this agreement. I am fully aware of my eligibility for Standby status under chapter 39, AFM 35-3, and during the period of this agreement, hereby waive my rights to Standby status under any criteria for which I am presently eligible. I understand that:

a. I will not be released from this agreement unless there is a change in my status, and upon such change, I submit a request for transfer to the Standby Reserve and such request is approved under the eligibility criteria established in chapter 39, AFM 35-3.

b. No request for transfer to the Standby Reserve will be accepted after the date of an alert or notice of mobilization.

c. This agreement will become effective on the date indicated above or the date I am officially assigned whichever comes later.

d. This agreement terminates upon reassignment from the Kansas Air National Guard.

Signature of Member Signed

These agreements expired prior to January 26, 1968. The plaintiffs refused to execute new agreements, but continued to serve in a Ready status, reported for drill, received pay and allowances therefor, and acquired points for retirement after their agreements had terminated. All of them were called to active duty on January 26, 1968, and served in such capacity until they filed suit in the United States District Court for the District of Columbia seeking release from active duty. Judge Gasch of that court ordered the plaintiffs released from active duty because of the provisions of Air Force Manual 35-3, paragraph 39-7, subparagraph c(2) (a), which provides in effect for an annual screening to be made of personnel in the Ready Reserve, and if the reservist's Ready Reserve Agreement expires on the date of the interview or within 12 months thereafter, the reservist will be required to execute a new agreement. If he does not renew his agreement, he will be immediately assigned to the Standby Reserve. This regulation was not followed in this case, and the plaintiffs were released from active duty by order of the District Court.¹

Thereafter, the plaintiffs filed this suit claiming damages for lost wages, retirement credits, job experience and training, employment and advancement opportunities, loss of the society of their families, involuntary risk of their lives, deprivation of property in violation of the Fifth Amendment to the United States Constitution, and involuntary servitude in violation of the 13th Amendment to the Constitution. The defendant filed a motion for summary judgment, and the plaintiffs filed a cross-motion for summary judgment.

The main thrust of plaintiffs' claims is that the foregoing damages resulted from a breach of the Standby Agreement by the government. This contention is without merit for several reasons. The agreement was not signed by the government. It was more in the nature of a consent by plaintiffs to accept active service in time of emergency and a waiver on their part of their rights to Standby status during the period of the agreement. Even if it could be said that the government became bound by its acceptance of the agreement, a careful reading of the document shows that it imposed no obligation on the government. The plaintiffs say that the Air Force should have transferred them to the Standby Reserve at the end of...