Colon-Rios v. Perrin

• Decision Date: 19 December 1969
• Docket Number: Civ. No. 705-69.
• Citation: 306 F. Supp. 1314
• Parties: In the Matter of the Application of Enrique COLON-RIOS, Petitioner, v. Bert PERRIN, Commanding Officer, United States Army in Puerto Rico; and Jack K. Sterne, Commanding Officer, Command Support Detachment, Third Army, Respondents.
• Court: U.S. District Court — District of Puerto Rico

306 F. Supp. 1314

In the Matter of the Application of Enrique COLON-RIOS, Petitioner, v. Bert PERRIN, Commanding Officer, United States Army in Puerto Rico; and Jack K. Sterne, Commanding Officer, Command Support Detachment, Third Army, Respondents.

Civ. No. 705-69.

United States District Court D. Puerto Rico.

December 19, 1969.

Olaguibet A. López-Pacheco, Hato Rey, P. R. and Luis M. Escribano-Díaz, Santurce, P. R., for petitioner.

Blas C. Herrero, Jr., U. S. Atty., San Juan, P. R., for respondents.

ORDER AND OPINION

FERNANDEZ-BADILLO, District Judge.

Petitioner, Enrique Colon-Rios, has applied for a Writ of Habeas Corpus directing his release from the Armed Forces of the United States on the grounds that he is a civilian and not subject to the jurisdiction of the United States Army or any other branch of the military.

Enrique Colon-Rios was apprehended by agents of the Federal Bureau of Investigation on October 10, 1969 at his home in Comerio, Puerto Rico, pursuant to a request from the Armed Forces of the United States, for being absent without proper authority from his organization. After his arrest, Enrique Colon-Rios was delivered to the Army authorities at Fort Buchanan, Puerto Rico, for processing and transportation to Fort Sill, Oklahoma.

The relevant events leading to petitioner's arrest and delivery to the military authorities are summarized as follows:

On November 14, 1965, petitioner voluntarily enlisted in the National Guard of Puerto Rico. Petitioner admitted in his petition that during the period July 24, 1967 to June 7, 1968, he missed at least six (6) drills. As a result of these absences, petitioner was determined an unsatisfactory participant by his National Guard unit. Petitioner was discharged from the National Guard on September 17, 1968. The discharge was solely for the purpose of giving jurisdiction over the petitioner to the Ready Reserve as set forth in Army Regulation No. 135-91, paragraph 14b,¹ thus enabling the Ready Reserve to call the petitioner to active duty for unsatisfactory participation with his National Guard unit.

On August 16, 1968, petitioner was mailed Letter Orders Number A-08-44, from Department of the Army, Headquarters, U.S. Army Forces Southern Command-Puerto Rico, Fort Buchanan, Puerto Rico 00934.² These Orders were received by the petitioner on August 22, 1968. Petitioner furnished a copy of these Orders to Local Selective Service Board No. 22, Comerio, Puerto Rico.³ Under the terms of these Orders, petitioner was ordered to active duty with the Armed Forces of the United States for a period of 19 months and 7 days. He was assigned to 2d Battalion, First Field Artillery, Fort Sill, Oklahoma. The effective date of these Orders was September 18, 1968, at which time petitioner became a member of that unit and carried on its rolls. Petitioner's reporting date to said unit was September 20, 1968; thus, petitioner was allowed two days travel time between his home in Puerto Rico and his new unit of assignment. The authority for issuing these Orders is cited as P.L. 89-687,⁴ and Paragraph 12, Army Regulations No. 135-91. Petitioner did not comply with the Orders and failed to report on the date he was scheduled to do so.

On July 26, 1968, prior to the receipt of said Orders, petitioner submitted to Local Selective Service Board No. 22, a verified certification of his marriage certificate and a verified certification of the birth certificate of his son.⁵

On the same date (July 26, 1968), petitioner was sent SSS Form 127 (Current Information Questionnaire) which he completed and returned on the same date. In said questionnaire he indicated that he was a member of Company B, 130th Engineer Battalion, Puerto Rico National Guard with Service No. ER 29136961.

On July 30, 1968, Local Selective Service Board No. 22, Comerio, Puerto Rico, received DD Form 44 entitled "Record of Military Status of Registrant", dated July 10, 1968, from Company B, 130th Engineer Battalion, that stated in Part XII, "Remarks" section, as follows: "Unsatisfactory participant who is being reported for order to active duty under the provisions of Puboic Law 89-687." Upon receipt of this form, Local Selective Service Board No. 22 forwarded the Selective Service file of petitioner to the Selective Service Headquarters, Commonwealth of Puerto Rico, for instructions.

On August 8, 1968, the file was returned by the Selective Service Headquarters with a recommendation that petitioner be retained in his present classification, and that if within the next 90 days no word was received that petitioner had entered upon active duty, the local board could again return the file to Selective Service Headquarters.

On September 23, 1968, the father of petitioner appeared at Local Selective Service Board No. 22 to notify that his son was hospitalized at University Hospital, Rio Piedras, Puerto Rico. He completed SSS Form 119, "Report of Oral Information."⁶

On November 6, 1968, the Selective Service file of petitioner was again forwarded to Selective Service Headquarters for additional instructions. This file was returned by Selective Service Headquarters on September 15, 1969.⁷

On the same date (September 15, 1969), Local Selective Service Board No. 22 sent petitioner SSS Form 127, "Current Information Questionnaire" which was returned completed by petitioner on September 22, 1969.

On September 23, 1969, petitioner was reclassified III-A, and on September 25, 1969, SSS Form 110 (Notice of Classification) was sent to him, notifying that he had been reclassified III-A.

On October 16, 1969, petitioner filed his petition for Writ of Habeas Corpus.

It is undisputed that the petitioner voluntarily enlisted in the National Guard of Puerto Rico, and that in a one-year period he missed at least six (6) drill periods. His absences from drill prompted the military authorities to order him to involuntary active duty due to failure to participate satisfactorily with his National Guard unit.

Title 10, U.S. Code, Section 673a, provides:

"Section 673a. Ready Reserve: members not assigned to, or participating satisfactorily in, units

"(a) Notwithstanding any other provisions of law, the President may order to active duty any member of the Ready Reserve of an armed force who—

"(1) is not assigned to, or participating satisfactorily in, a unit of the Ready Reserve;

"(2) has not fulfilled his statutory reserve obligation; and

"(3) has not served on active duty for a total of 24 months.

"(b) A member who is ordered to active duty under this section may be required to serve on active duty until his total service on active duty equals 24 months. If his enlistment or other period of military service would expire before he has served the required period under this section, it may be extended until he has served the required period.

"(c) To achieve fair treatment among members of the Ready Reserve who are being considered for active duty under this section, appropriate consideration shall be given to—

"(1) family responsibilities; and

"(2) employment necessary to maintain the national health, safety, or interest."

In the case of Pfile v. Corcoran, 287 F.Supp. 554 (D.C.1968), the court considered the question of whether petitioner's enlistment contract was subject to the subsequently enacted Act of Congress, 10 U.S. Code § 673a. The court, in addressing itself to the problem said (p. 559):

"* * * The terms of the statute unquestionably apply to petitioner's situation. The provision relating to the callup of reservists not satisfactorily participating in their program applies to `any member of the Ready Reserve.' 70A Stat. 11, 161. Winters, supra, has so construed P.L. 89-687.

"Congressional debates indicate that one purpose of P.L. 89-687 was to provide a large pool of men who could be called to active duty without the necessity of activating whole units and without a Presidential declaration of a national emergency. This was accomplished by making men not members of units, as well as unsatisfactory participants in units, subject to callup without the necessity of reporting them to the Selective Service System. In this way they were made available for service, the protective mantle of membership in the reserve was removed, and they did not have to be put through the administrative machinery of the draft but could be activated by the reserve organization.

"Thus, the language of P.L. 89-687 makes clear that the statute was not intended to apply only to persons enlisting after its enactment. Since the statute was originally passed for a short term period (October 15, 1966— June 30, 1968), it seems obvious that it was intended to apply to persons already in the reserve, thus making a pool of currently enlisted men subject to activation.

"Nor can it be argued that Congress intended to take into consideration the lack of provision in the Army Reserve contract for subsequently passed laws. The Army Reserve would probably comprise the largest segment of the reservists available for activation under this statute. The language of the statute applies to all reserve units. If Congress intended the statute to apply only to certain branches of the service, it would have so stated.

"It follows that petitioner can be regarded as subject to 10 U.S.C. § 673a if the statute can legitimately alter the sanction provision of his contract, thereby making him subject to the sanction provided by the statute passed subsequent to his enlistment. * * *."

The court went on to say (at page 561):

"* * * The present statute can be regarded as falling within the `wide discretion' which Congress possesses in the exercise of its powers `to declare war,' (Const., Art. I, sec. 8, cl. 11), `to raise and support armies,' (Const., Art. I, sec. 8, cl. 12), and `to make rules for the government and regulation of the land and naval forces' (Const., Art. I, sec. 8, cl. 14). These are collectively known as the War Powers, and the statute appears validly

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