Feeny v. Smith

• Citation: 371 F. Supp. 319
• Decision Date: 27 February 1973
• Docket Number: No. C 168-72.,C 168-72.
• Parties: Thomas L. FEENY, Petitioner, v. Captain Melvin C. SMITH et al., Respondents.
• Court: U.S. District Court — District of Utah

371 F. Supp. 319

Thomas L. FEENY, Petitioner, v. Captain Melvin C. SMITH et al., Respondents.

No. C 168-72.

United States District Court, D. Utah, C. D.

February 27, 1973.

COPYRIGHT MATERIAL OMITTED

F. Robert Reeder, Salt Lake City, Utah, for petitioner.

Glenn J. Mecham, Asst. U. S. Atty., Salt Lake City, Utah, for respondents.

MEMORANDUM AND ORDER

ANDERSON, District Judge.

Thomas L. Feeny enlisted in the United States Army Reserve for six years on December 3, 1968. He brings this action to seek an order releasing him from restraints on his liberties by the respondents and for discharge from the U. S. Army Reserve. In the alternative he asks that respondents be required to follow their own regulations and excuse the petitioner for his absences of November 20 and 21, 1971, and that he be reinstated in his former rank, status and position in the United States Army Reserve.

Jurisdiction is predicated upon 28 U. S.C. § 2241(c)(1) for consideration of habeas corpus and under 28 U.S.C. § 1361 for consideration of petitioner's request for mandamus. There appears to be no question on jurisdiction.

Under 10 U.S.C. § 673a, the President may order to active duty a member of the ready reserve who is not participating satisfactorily in his reserve unit. This authority was delegated by the President to the Secretary of Defense by Executive Order No. 11366, and by him to the Secretary of the Army. See Anderson v. Laird, 437 F.2d 912, 913 (7th Cir. 1971).

Criteria for satisfactory participation are set forth in Army Regulation 135-91(12) which provides:

A member fails to participate satisfactorily when he accrues in any one-year period a total of five or more unexcused absences from scheduled unit training assemblies.

Absences and excuses are governed by the following regulation:

Absences from scheduled unit training assemblies or annual training may be authorized by the unit commander for reasons of sickness, injury, emergency, or other circumstances beyond the control of the member and substantiated by appropriate affidavits or certified by a doctor or medical officer, provided such documents are received with 14 days of the absence. (Paragraph 9a, AR 135-91, April 18, 1971). (Emphasis added). (Language the same in DOD Message 241701Z, Mar 72 superseding above paragraph)(Time shortened to 14 days on August 28, 1970).

In this case the Army has determined that the petitioner failed to properly attend five meetings in a one-year period and that none of these absences was excused. The Army notified the petitioner that he failed to participate satisfactorily and that he would be called to active duty. The petitioner's appeal to the Army, authorized by regulation, has been denied. He has now brought this action against the respondents and has asked the court for the relief above described.

It has been well established that purely discretionary decisions of military officials within their valid jurisdiction are beyond the permissible scope of review of federal courts. Orloff v. Willoughby, 345 U.S. 83, 73 S.Ct. 534, 97 L.Ed. 842 (1953); O'Mara v. Zebrowski, 447 F.2d 1085 (3rd Cir. 1971); Caruso v. Toothaker, M.D.Pa., 331 F.Supp. 294. The allowable scope of review in a case such as this is confined to a determination of 1) whether military orders were "promulgated in violation of the military's own regulation" (O'Mara v. Zebrowski, supra); 2) whether the procedures employed by the military comport with the requirements of due process in the light of the context in which the procedures operate (O'Mara v. Zebrowski, supra; Ansted v. Resor, 437 F.2d 1020 7th Cir. 1971, and Caruso v. Toothaker, supra); and 3) whether the military has acted within the jurisdiction conferred on it by valid law (Winters v. United States, E.D.N.Y., 281 F. Supp. 289, aff'd 390 F.2d 879 2d Cir. 1968). The foregoing definition of permissible scope of review, found in the Caruso case, appears to provide the guidelines for decision here.

Petitioner Feeny had missed several unit assemblies prior to those of November 20 and 21, 1971. In all of these he had submitted excuses which were accepted and, with one exception, had been received by the date specified in the notice. The first of the five absences which served as the basis for the present order for activation occurred on February 20, 1971. Feeny has submitted no excuse for this absence and, according to the form which is in evidence (Exhibit A), he was charged with two absences for this failure to attend. There were apparently two periods which he had to attend on that day. He was also absent on November 20 and 21, 1971. On each of these days there were two periods scheduled and he was charged with two absences for each day for his failure to attend. With the addition of these four absences Feeny was thus chargeable with at least five absences, which constitutes unsatisfactory performance due to lack of attendance under AR 135-91(12) and which may call for an order to active duty.

On November 22, 1971, Feeny was mailed a 6AA Form 504 (Exhibit A, p. 25) stating, among other things, that he had until December 6 to supply an excuse for his absences. Feeny claims not to have received this notice, and the evidence shows a registered letter was sent but was returned unclaimed. Feeny submitted a letter from Dr. Harline as an excuse on December 17, 1971, which was rejected by his commander, Captain Melvin C. Smith, as being "too late." At page 24 of Exhibit A is found a "Memorandum for the Record," with the subtitle "Investigation of Absence." This Memorandum signed by Captain Smith, is dated November 21, 1971, and reflects, among other things, that the captain made two phone calls in attempting to locate Feeny. The captain's entry states: "Was told by roommate that Feeny was in Ogden, Utah. Called telephone number 393-4421 and was told by his sister that he was in Salt Lake City, Utah." The bottom half of this memorandum form calls for a classification of the absence by the unit commander. A mark was placed in the box beside "unexcusable," and the indication was made that Feeny would be charged with five unexcused absences. There is no other evidence in the record, or that was presented to the court, indicating any other contact prior to the call for active duty in which the captain undertook to find out from Feeny or the doctor or anyone else what the circumstances were upon which he based his claim for excuse. The record does contain, of course, the letter from Dr. Wesley G. Harline (page 26 of Exhibit A) which states: "To Whom It May Concern: This is to certify that Tom Feeny was under my care for treatment of upper respitory sic infection and was unable to attend his Guard Meeting on November 20 and 21, 1971." It was signed by the doctor on December 17, 1971, with a notation by Sgt. Hamrick that it was received on December 21, 1971, by the Army.

Feeny's claim with respect to his absences on these two dates was, of course, that he was too ill to attend. He offers to show the court through the affidavit of his roommate that he was sick in bed for a period of over two weeks and that the roommate was sent to pick up the registered mail, but that they would not deliver it to him, and that before he could go himself to pick it up it had been returned to the Army. The respondents have objected to the admission of the affidavit or its consideration by the court. Their claim is that the court's review of the facts is limited to the record before the court (Exhibit A). However, the court will consider it for what it purports to be: a claim of facts Feeny contends he could have shown if the opportunity had been afforded him to do so, or as a claim by Feeny of information which the captain would have found had he made the investigation which petitioner says was required of him by regulation under the circumstances of this case.

On February 10, 1972, Feeny was advised that a recommendation had been made to call him to active duty; that he had fifteen days to appeal and could use his DA 201 military personnel record for assistance. On February 25, 1972, Feeny filed his appeal through counsel, noting, among other things, that he had been denied access to his DA 201 military personnel file. Respondents do not dispute this claim. On March 3, 1972, Captain Smith filed a reply letter to the appeal of February 25. It is the contention of the petitioner Feeny that the reply letter contains misrepresentations of fact with respect to his receiving annual orientation and being advised concerning the fourteen-day period within which an excuse must be submitted following an absence from drill.

Feeny stated in his March 16 addendum to his appeal he still had not been given access to his military records file (DA 201), which he needed to rebut Captain Smith's March 3 letter. On March 6, 1972, Battalion Headquarters recommended disapproval of the appeal. On March 13, 1972, 96th ARCOM recommended disapproval of the appeal. On April 4, 1972, in a supplementary appeal, the petitioner acknowledged having received access to his military personnel records file (DA 201) on April 3, and noted the orientation and notice deficiencies. He claimed misrepresentations were present in Captain Smith's letter of March 3 on these subjects, as noted above. Captain Smith's March 3 letter represented that Feeny had received word from Sgt. Hamrick on or about February 28 that upon appointment being made access to the military personnel records jacket might be had by Feeny and/or his counsel.

On June 16, 1972, the petitioner was advised that the review board by a vote of two to one recommended denial of petitioner's appeal. The delay appeal board record of proceedings dated June 2, 1972, shows that the board reviewed the petitioner's military personnel records jacket (DA 201), and the February 25 and March 16 letters of appeal of the petitioner for relief from call to active duty, as well as several forwarding command endorsements, but...