Ferrell v. Secretary of Defense, 81-2063

• Decision Date: 07 December 1981
• Docket Number: No. 81-2063,81-2063
• Parties: Neil L. FERRELL, Petitioner-Appellant, v. SECRETARY OF DEFENSE, Secretary of the Navy and Commanding Officer, NAS, Corpus Christi, Texas, Respondents-Appellees. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1179

662 F.2d 1179

Neil L. FERRELL, Petitioner-Appellant, v. SECRETARY OF DEFENSE, Secretary of the Navy and Commanding

Officer, NAS, Corpus Christi, Texas, Respondents-Appellees.

No. 81-2063. Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Dec. 7, 1981.

Joel E. Bair, Corpus Christi, Tex., for petitioner-appellant.

Robert Darden, Asst. U.S. Atty., Houston, Tex., for respondents-appellees.

Before CHARLES CLARK, Chief Judge, RUBIN and SAM D. JOHNSON, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

Seeking honorable discharge from his military commitment, appellant Ferrell filed a federal habeas petition alleging that the Navy had breached his enlistment contract by not placing him in the Active Mariner Apprenticeship Training Program ('Mariner Program'). The pertinent facts being undisputed, we affirm the district court's denial of relief because Ferrell has not shown this breach of his enlistment contract to have been a material one entitling him to rescind his enlistment.

On June 30, 1978, Ferrell enlisted in the United States Naval Reserve ('USNR') under the Mariner Program. After a period of delayed entry, Ferrell was to serve three years of active duty, two years of active reserve and one year of inactive reserve. The Mariner Program provided two weeks of 'apprenticeship training' after completion of boot camp, a chance, after initial assignment to a Naval Unit, to 'look at all the jobs available in the Navy' and an opportunity to apply for one of those jobs. The Navy was not, however, under any obligation to give the applicant the job he selected.

Approximately six months after his enlistment, Ferrell was called to duty. Upon his arrival at the induction center, Ferrell was erroneously told that the Mariner Program no longer existed and that he had no choice but to accept a 'straight' (i. e., no options), four-year term of active duty in the regular United States Navy ('USN'). ¹ Having no reason (or ability) to question the correctness of this information, Ferrell agreed to be honorably discharged from his original USNR enlistment and signed the four-year USN enlistment. Under this second enlistment, Ferrell was neither entitled to nor received the benefits of the Mariner Program.

When Ferrell discovered that he had been misinformed when he signed the USN enlistment, he petitioned the Board for Correction of Naval Records ('BCNR') to correct his records to show that he was serving three years of active duty pursuant to his original USNR enlistment. He later amended his petition to request that he be discharged from the Navy altogether.

The BCNR found that Ferrell had not been 'properly counseled at the time he signed the [four-year] USN contract,' but refused to grant him a discharge. Instead, it voided the USN contract and 'reinstated' his original USNR enlistment. In doing so, however, the BCNR failed to take account of the fact that Ferrell had never been afforded the benefits of the Mariner Program.

Having failed to obtain a discharge after thus exhausting the available administrative remedies, Ferrell filed a petition for a writ of habeas corpus in federal district court. After an evidentiary hearing, the Magistrate appointed to hear the case recommended that the writ be granted. The district judge, however, declined to follow this recommendation and entered an order denying the petition. Ferrell appeals from this judgment. His basic argument is that the BCNR's reinstatement of his original USNR enlistment contract without also allowing him to participate in the Mariner Program constitutes a material breach of that contract entitling him to rescind it. We do not agree that the breach was material.

The general standard of review of military 'correction board' decisions, see generally 10 U.S.C. Sec. 1552, is summarized in Sanders v. United States, 594 F.2d 804 (Ct.Cl.1979):

'Once a plaintiff has sought relief from the Correction Board, such plaintiff is bound by that board's decision unless he can meet the difficult standard of proof that the Correction Board's decision was illegal because it was arbitrary or capricious, or in bad faith, or unsupported by substantial evidence or contrary to law, regulation, or mandatory published procedure of a substantial nature by which plaintiff has been seriously prejudiced . . ..

594 F.2d at 811. Claims that enlistment contracts are invalid or have been breached are decided according to traditional notions of contract law. Peavy v. Warner, 493 F.2d 748, 750 (5th Cir. 1974). See also In re Grimley, 137 U.S. 147, 151, 11 S.Ct. 54, 55, 34 L.Ed. 636, 638 (1890); Pence v. Brown, 627 F.2d 872, 874 (8th Cir. 1980); Shelton v. Brunson, 465 F.2d 144, 147 (5th Cir. 1972). Therefore, under Sanders standards, Ferrell is entitled to relief only if he can show that the BCNR decision was 'contrary to law.'

According to the original Restatement of Contracts, if the failure of one party to perform part of a contract is so material that it results in the other party not receiving substantially what he bargained for, the duty of the injured party is discharged and he is, thereby, wholly excused from carrying out his undertaking. See Restatement of Contracts Secs. 274, 397 (1932). If, on the other hand, the failure to perform is not material, the injured party retains his duty to render his performance. See id. Sec. 274(1). There is still a breach...