Fairbank v. Schlesinger
| Decision Date | 30 December 1975 |
| Docket Number | Nos. 73-2136,74-1287,s. 73-2136 |
| Citation | 174 U.S.App.D.C. 359,533 F.2d 586 |
| Parties | Major John C. FAIRBANK, Appellant, v. James R. SCHLESINGER, Secretary of Defense, et al. Major William R. PERRY, Appellant, v. COMMANDING OFFICER, HEADQUARTERS, et al. * |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Jon G. Rothblatt, New York City, with whom Robert M. Price, Washington, D. C., was on the brief for appellant Fairbank.
David R. Addis, Richard A. Graham, Asst. U. S. Attys., with whom Earl J. Silbert, U. S. Atty., John A. Terry, Michael A. Katz and Royce C. Lamberth, Asst. U. S. Attys., were on the brief for appellees.
Before TAMM, ROBINSON and MacKINNON, Circuit Judges.
Appellant originally enlisted in the Regular Army on September 8, 1953, for a period of three years. During this enlistment he applied to go to Officer Candidate School, which he completed satisfactorily on March 7, 1955, at which time he was discharged from active duty service as Sergeant E-5 in the Regular Army to accept appointment as a Reserve commissioned officer of the Army (A-46). Appellant thereupon applied and agreed to serve for two years on active duty as a Reserve officer, and, on March 31, 1957, upon completion of that two-year service, he was voluntarily released from active duty.
Beginning the next day, April 1, 1957, and continuing until October 17, 1961, appellant was not on active duty but served this entire period as a Reserve officer in the United States Army Reserve (the active reserve). During this period of active Reserve service he was promoted from First Lieutenant to Captain, and, with his consent, appellant was ordered back to active duty in the Army as a Reserve officer with the rank of Captain on October 18, 1961. Since that date appellant has served without interruption in the Army on active duty as a Reserve officer, and has been promoted to the rank of Major in that branch.
On June 8, 1973, appellant received a letter from the Department of the Army notifying him that due to officer strength reductions he was to be involuntarily released from active duty within 90 days. The letter stated:
1. Recent actions related to authorization limitations have compelled the United States Army to reduce the active duty officer strength. To accomplish this reduction, the Department of the Army instituted board action under the provisions of paragraph 3-58b, Section XV, AR 635-100, (Personnel Separations), to select officers for involuntary relief from active duty. After a comprehensive and impartial review of your official military personnel records, to include efficiency ratings, civilian and military schooling, commendations, types and variety of assignments and future potential, the Department of the Army Active Duty Board has selected you for release from active duty.
2. Selection for release from active duty is meant in no way to reflect unfavorably upon performance of duty. You have served faithfully and well during a difficult and demanding time in our nation's history. The necessity to release you is dictated solely by the needs of the service and is sincerely regretted. 1
At the time appellant received the above letter he had completed approximately 15 years and two months of active duty service in the Army, including two tours of duty in hostile areas. To qualify for retirement with full benefits, appellant was required to complete an additional four years and eight months of active duty service. Appellant contends that these benefits would be worth over $300,000 to him, his wife, and four children. We have no evaluation of the worth of his present benefits. Presumably they are less.
On July 25, 1973, in accordance with conditions and procedures specified in Army Regulations (A-20), and a Department of the Army message dated July 9, 1973, 2 appellant applied for reenlistment as an enlisted member of the Regular Army, to take effect upon his involuntary release from officer service (A-23). This application was based upon the belief that he had a statutory right to continue his service until he became eligible for retirement by reenlisting in the Regular Army, in his former enlisted grade, and thus obtain credit for all prior service by virtue of having left his former Regular Army enlisted grade to serve as an officer at a time when the Army needed additional officers.
Appellant's application for reenlistment was supported by several letters of recommendation from Army officers and from a Sergeant Major (A-33), and there is no contention that appellant does not completely satisfy the needs of the service for the grade in which he seeks reenlistment. His application included a letter from his Commanding Officer, recommending acceptance for reenlistment in the grade of Sergeant First Class E-7 (A-21).
On August 24, 1973 the Department of the Army informed appellant that he was not eligible for reenlistment in the Regular Army in any enlisted grade, and that his application for reenlistment was denied (A-34). The official denial of appellant's reenlistment application did not indicate any reason as to why he did not have a statutory entitlement to reenlist pursuant to the relevant statute (A-34), but appellant states that he was subsequently informed that the Department contended he was ineligible due to the break in his active duty service from 1957 to 1961, during which period he had served on inactive duty as an officer in the Army Reserve. (Appellant Br. 9).
Upon exhaustion of review procedures available within the Army, appellant brought the instant action in the district court to contest the denial by the Department of the Army of his application for reenlistment, and when that court granted summary judgment dismissing his action, he appealed to this court.
On November 6, 1973, appellant filed a motion in this Court pursuant to Rule 8(a), Fed.R.App.P., for an order staying his release from duty in the Army pending this appeal and for summary reversal. On November 8 we granted the motion for stay pending appeal and denied the motion for summary reversal.
We find that appellant has a statutory right to reenlist.
Appellant claims his right to reenlist in the Regular Army was conferred by the following statute:
Any former enlisted member of the Regular Army who has served on active duty as a Reserve officer of the Army, or who was discharged as an enlisted member to accept a temporary appointment as an officer of the Army, is entitled to be reenlisted in the Regular Army in the enlisted grade that he held before his service as an officer, without loss of seniority or credit for service, regardless of the existence of a vacancy in his grade or of a physical disability incurred or having its inception in line of duty, if (1) his service as an officer is terminated by an honorable discharge or he is relieved from active duty for a purpose other than to await appellate review of a sentence that includes dismissal or dishonorable discharge, and (2) he applied for reenlistment within six months (or such other period as the Secretary of the Army prescribes for exceptional circumstances) after termination of that service. However, if his service as an officer terminated by a general discharge, he may, under regulations to be prescribed by the Secretary of the Army, be so reenlisted.
10 U.S.C. § 3258. 3 The Secretaries of Defense and of the Army admit that appellant would have the reenlistment right he asserts except for his failure to exercise such right when he was released from active duty in the Regular Army from April 1, 1957 to October 17, 1961. In other words, the Secretaries admit in this case that appellant had a right under § 3258 to reenlist when he was released from active duty on March 31, 1957, but they contend that since he did not apply "for reenlistment within six months . . . after termination of that service" he forever lost the right. To the contrary, appellant argues that his "reserve commission, and his service as a Reserve commissioned officer, have never terminated," since following his 1957 release he retained his Reserve commission and continued as a member of the Active Army Reserve without interruption until his return to active duty with the Regular Army in 1961, and, therefore, "the six month application period specified in 10 U.S.C. § 3258 has never commenced to run." (Appellant Br. 32).
The resolution of these conflicting contentions must depend upon the manifestations of Congressional intent which appear in the statute, committee reports and Congressional debates relating to the relevant legislation. We thus turn to such sources to determine whether Congress intended to limit the reenlistment rights of eligible Reserve Officers to the first occasion of release from active duty to the Active Reserve or forever to forfeit such right.
The legislative history discussed in detail in appellee's brief begins with the Act of 1918, but the earlier Act of May 12, 1917 was the first to make provision for the reenlistment in the Army of enlisted men who were discharged to accept commissions as officers. It granted, in an appropriation act, a reenlistment right to "enlisted men who were discharged from the Army to accept a commission in the National Guard, or in any volunteer force that may be authorized in the future, at the call of the President, June Eighteenth, nineteen hundred and sixteen . . ." 4 This enactment has never been amended or repealed 5 but its reference to the call of the President of June 18, 1916 indicates that its application has practically passed into desuetude. It does, in the next succeeding paragraph, provide for retirement and pay credit for "any enlisted man of the Army who shall be discharged to enable him to accept a commission in the Officers' Reserve...
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