Jackson v. United States

• Decision Date: 22 March 1978
• Docket Number: No. 259-76.,259-76.
• Citation: 573 F.2d 1189
• Parties: Allen Aaron JACKSON v. The UNITED STATES.
• Court: U.S. Claims Court

573 F.2d 1189

Allen Aaron JACKSON v. The UNITED STATES.

No. 259-76.

United States Court of Claims.

March 22, 1978.

James M. Garlock, San Francisco, Cal., attorney of record for plaintiff, Belli & Choulos, Melvin M. Belli, and Morris Beatus, San Francisco, Cal., of counsel.

Sandra P. Spooner, with whom was Asst. Atty. Gen. Barbara Allen Babcock, Washington, D.C., for defendant, Levator Norsworthy, Jr., Washington, D.C., of counsel.

Before SKELTON, Senior Judge, and KUNZIG and BENNETT, Judges.

ON DEFENDANT's MOTION TO DISMISS

SKELTON, Senior Judge:

This is the second time this case has been before this court. Our prior opinion, which denied any recovery to plaintiff and which dismissed his petition, is found in Jackson v. United States, 551 F.2d 282, 213 Ct.Cl. 354, vacated and remanded, 434 U.S. 947, 98 S.Ct. 471, 54 L.Ed.2d 307 (1977).

The facts show that the plaintiff enlisted in the United States Army Reserve on January 24, 1974, for a period of 6 years. At that time he signed the following enlistment documents:

(1) Department of Defense Form 4 (DD4), Enlistment Contract — Armed Forces of the United States. This form showed his enlistment as a private in the USAR (Delayed Entry) for a period of 6 years, and contained the oath of enlistment which he signed.

(2) Department of the Army Form 3286 (DA3286), Statement for Enlistment, Parts I through V, in which the plaintiff changed his 6-year enlistment in the Army Reserve to a 3-year enlistment in the Regular Army in order that he might receive on-the-job training (OJT) in mechanical maintenance. This form contained the following acknowledgments:

Part I — General Statement of Understanding. (To be completed by all applicants for enlistment or reenlistment in the Regular Army)

In connection with my enlistment in the Regular Army, I hereby acknowledge that:

ACKNOWLEDGMENT

All promises made to me are contained in Items 3 (Rate/Grade), 37 (Rate/Grade Appointed/Reappointed) 48 (Untitled Item) of the DD Form 4, my Enlistment Contract.

* * * * * *

My choice of initial enlistment option shown in Item 48 of my DD Form 4 does not constitute any guarantee that a substantial part of my enlistment will be served in this option, and the needs of the service may result in my transfer at any time (other than as may be provided by the specific option selected) to any other assignment within the continental United States or to an overseas command.

(3) Statement For Enlistment, Delayed Entry Program, Form 3286-32-R. This form contained the following acknowledgments and provisions:

TO BE COMPLETED BY ALL APPLICANTS ENLISTING FOR THIS OPTION.

ACKNOWLEDGMENT: In connection with my enlistment in the United States Army Reverse, I hereby acknowledge that:

a. My enlistment in the US Army Reserve obligates me to a total of 6 years of service in the Armed Forces of the United States, including service in the Reserve Components, unless sooner discharged by proper authority.

* * * * * *

d. The combined time served in the Reserve prior to entry on active duty and active duty will be creditable for my 6-year obligation.

e. I volunteer to serve on active duty for 3 (enter number) years in my job assignment specified by the Army, such period to begin within 180 days unless I enlist in the Regular Army, or I am granted further delay by proper authority.

* * * * * *

g. In lieu of performing the active duty specified in e above, I may enlist in the Regular Army for not less than 3 (enter number) years with the following understanding:

(1) Upon enlistment in the Regular Army, I will be enlisted under the provisions of AR 601-210, Table 5-41 (Enter the appropriate table number and the title of the enlistment option(s) for which enlisting. Only tables for which a "yes" entry is included in Column 7, Table 5-1, may be entered here.)

(2) If enlisting for an Army school course, I am assured of attending school course 1st Inf Div (M) Ft. Riley, Ks and OJT MOS 63 ATO (Mechanical Main.) (Enter school course title and course number.)

* * * * * *

(5) The date of my enlistment in the Regular Army is scheduled for 25 (Day) Feb. (Month) 74 (Year).

UNDERSTANDING: I have read and understand each of the statements above and the statements contained in other parts of DA Form 3286, signed by me, and understand that they are intended to constitute all promises whatsoever concerning my enlistment. Any other promise, representation, or commitment made to me in connection with my enlistment is written below in my own handwriting, or is hereby waived. (If none, write "None.")

X None. The word "none" is in plaintiff's handwriting and all blank space entries were filled in by him in writing.

On February 25, 1974, one month after plaintiff signed the foregoing enlistment papers, he was inducted into the Regular Army. On that date he signed the following Army enlistment papers:

(1) Army Enlistment Form (DD Form 4) which shows that plaintiff was honorably discharged from the Army Reserve on February 24, 1974, and that he enlisted in the Regular Army on February 25, 1974, for 3 years as follows:

PVIE-1 "NA," "ENL FOR SUE ENL OPT (TABLE 5-41) 1ST INF DIV, FT RILEY, KS AND MOS 63A10 MECH MAINT."¹

He also signed the oath of enlistment on that date for 3 years of service in the Regular Army.

(2) Statements For Enlistment, Part VI — United States Army Special Unit Enlistment Option, DA Form 3286-47-R, dated February 25, 1974, providing as follows:

Section I

ACKNOWLEDGMENT: In connection with my enlistment in the Regular Army for the United States Army Special Unit Enlistment Option, I hereby acknowledge that:

(a) My enlistment for this option assures me that, provided I meet required prerequisites, I will be assigned to 1st Inf Div, Ft. Riley, KS (Enter the unit for which enlisting.)

b. Unless I have previously completed basic or basic combat training (BCT) and served in the Army or Marine Corps in the past 3 years, I must complete BCT prior to undergoing advanced individual training (AIT).

c. Upon completion of BCT, I will undergo AIT in military occupational specialty.

MOS (OJT) 63A10 Mechanical Maintenance.

(Enter the MOS for which enlisted.)

* * * * * *

Section III

ACKNOWLEDGMENT: In connection with my enlistment in the Regular Army for the United States Army Special Unit Enlistment Option, I hereby acknowledge that:

a. I am guaranteed assignment to the unit for which enlisted for a minimum of 16 months or normal tour length if enlisting for a short tour area after arrival at the unit for which enlisted, except as indicated below. Upon completion of the guaranteed period of stabilization in the unit for which enlisted, I may be reassigned in accordance with the needs of the Army.

* * * * * *

g. My term of enlistment is for 3 years.

* * * * * *

2. UNDERSTANDING: I have read and understand each of the statements above and the statements contained in other parts of DA Form 3286, signed by me, and understand that they are intended to constitute all promises whatsoever concerning my enlistment. Any other promise, representation, or commitment made to me in connection with my enlistment is written below in my own handwriting, or is hereby waived. (If none, write `None.')

X None. The word "none" is in plaintiff's handwriting.

The plaintiff competed basic combat training (BCT) at Fort Leonard Wood, Missouri, and was assigned to the 1st Infantry Division, Ft. Riley, Kansas, where he reported for duty on May 11, 1974, for on-the-job training (OJT) in mechanical maintenance in accordance with the provisions of his enlistment documents. He was assigned to the 1st Infantry Division as he had requested, and on May 20, 1974, while engaged in combat maneuvers with his unit, he was run over by a tank, resulting in the amputation of the lower half of his body from the navel down. He is totally and permanently disabled and has been drawing total disability compensation as provided by law in Grade PV2 since May 29, 1974.

The plaintiff filed this suit seeking damages in the sum of $5,000,000 for his injuries. He alleges that the recruiting officer represented to him that he would be allowed to attend an automotive mechanical maintenance school of the 1st Infantry Division at Ft. Riley, Kansas, and that he would not be required to participate in any dangerous combat-type military maneuvers or activities. He alleges further that such representations formed a part of his enlistment contract and that the Army breached the contract when plaintiff was required to participate in the tank combat-type maneuvers of the 1st Infantry Division and that because of such breach he was injured and is entitled to damages.

The case is before us on defendant's motion to dismiss the plaintiff's petition. The defendant says that although the plaintiff has couched his suit in terms of a contract action, his claim sounds in tort over which this court has no jurisdiction. The defendant denies that the recruiting officer made the representations claimed by the plaintiff that the plaintiff would not be required to participate in any dangerous-combat-type maneuvers or activities, and that, if any such representations were made by the recruiting officer, they were made orally and without authority; and that such representations, if they were made, contradicted the written enlistment documents which contained no such provisions, and conflicted with Army Regulations, and, for all of such reasons, were null and void.

In our prior opinion, we held that the plaintiff's case sounds in tort and not in contract and that we have no jurisdiction of his case because of 28 U.S.C. § 1491. We granted defendant's motion to dismiss and accordingly dismissed plaintiff's petition. At the time we entered our judgment of dismissal we were unaware that the plaintiff had finished his basic combat training and were of the opinion he was engaged in basic combat training at the time of his injuries, and we so stated in our opinion. The plaintiff applied to the Supreme Court for a...