Johnson v. Chafee, 72-1654.

• Decision Date: 12 January 1973
• Docket Number: No. 72-1654.,72-1654.
• Citation: 469 F.2d 1216
• Parties: Machinist's Mate Second Class Ronald W. JOHNSON, Plaintiff-Appellee, v. John N. CHAFEE, Secretary of the Navy, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

469 F.2d 1216 (1972)

Machinist's Mate Second Class Ronald W. JOHNSON, Plaintiff-Appellee, v. John N. CHAFEE, Secretary of the Navy, et al., Defendants-Appellants.

No. 72-1654.

United States Court of Appeals, Ninth Circuit.

November 27, 1972.

Rehearing Denied January 12, 1973.

Michael Kimmel (argued), Walter H. Fleischer, Attys., Harlington Wood, Jr., Acting Asst. Atty. Gen., Washington, D. C., John L. Guth, Asst. U. S. Atty., William D. Keller, U. S. Atty., Los Angeles, Cal., for defendants-appellants.

Richard P. Fox (argued), Los Angeles, Cal., for plaintiff-appellee.

Before BARNES, MOORE^* and ELY, Circuit Judges.

MOORE, Circuit Judge:

This is an appeal from a judgment and order of the United States District Court for the Central District of California granting the application of the appellee Johnson for a writ of habeas corpus requiring the Secretary of the Navy to cancel a two-year enlistment extension agreement and to discharge the appellee from the Navy.

On September 22, 1967, petitioner-appellee Johnson enlisted in the United States Navy for a term of four years. To obtain the advantages of special training in a Nuclear Field Program¹ being offered to enlisted men who agreed to extend the four-year term to six years, Johnson on October 16, 1967, did "voluntarily agree to extend his my enlistment for a period of TWO years from the date of expiration thereof, subject to the provisions and obligations of his my said contract of enlistment of which this, his my voluntary agreement shall form a part." The agreement further stated that the Nuclear Field Program was the "REASON FOR EXTENSION" and that "I Johnson understand that this extension agreement becomes binding upon execution and may not be canceled except as set forth in BUPERS Manual, Article C1407." The extension agreement was signed by Johnson and sworn to before a Warrant Officer.²

Johnson commenced his special nuclear training on July 20, 1968, and completed the first twenty-four weeks of instruction, graduating satisfactorily on February 7, 1969. After completing nine additional weeks of advanced training, he was disenrolled by the Navy for medical reasons (poor hearing) and assigned to his pre-nuclear program duty as a machinist's mate.

In October, 1969, Johnson requested cancellation of his extension agreement, alleging that the agreement was null and void because it had not been sworn to before a commissioned officer, as required by Article C-1407(3)(a) of the Naval Personnel Manual.³ Johnson's request was denied. His four-year term of enlistment expired on September 21, 1971, and shortly thereafter he brought this action to obtain his release from the Navy.

The district court ordered the Navy to release Johnson, holding that in order for it to be considered "legal and binding" the extension agreement had to be signed by both the individual and the commissioned officer administering the oath⁴ and that the Navy should be "bound by its own validly promulgated regulations." From the judgment ordering Johnson's release, the Secretary of the Navy appeals.

There is no question that Johnson voluntarily signed the extension agreement and that he understood and received (up to the time of his medical disenrollment) the benefits derived therefrom. The sole issue presented on appeal is whether, as Johnson contends, his signature and oath sworn to before a warrant officer instead of a commissioned officer prevented the agreement from becoming "legal and binding" ab initio and incapable of being ratified by his acceptance of the contractual benefits; or, as the Secretary contends, whether notarization of the agreement by a non-commissioned officer was merely a "formal defect" in the notarial authority of the witnessing officer which did not vitiate the legal effect of the agreement. Upon examination of the facts here involved, we agree with the Secretary and therefore reverse the judgment of the district court.

We are mindful of the fact that, while courts are reluctant to interfere in military affairs, the Navy is bound by its own validly promulgated regulations and that district courts may properly entertain suits by servicemen requesting compliance with such rules. See Nixon v. Secretary of the Navy, 422 F.2d 934 (2d Cir. 1970); Smith v. Resor, 406 F.2d 141 (2d Cir. 1969); Hammond v. Lenfest, 398 F.2d 705 (2d Cir. 1968). Contrary to the opinion of the district court below, however, because Johnson had clearly manifested his voluntary written intent to be bound by the extension agreement, a mere formal defect therein, which in no way prejudiced him, does not present adequate grounds to cancel an otherwise valid agreement. Failure to swear to the execution of an extension form has been held not to affect the validity of the extension, United States ex rel. Stone v. Robinson, 431 F.2d 548 (3d Cir. 1970), wherein the court said at page 553:

Certainly, any routine failure of appellant to swear to his execution of his extension form would not affect the validity of the enlistment extension, just as the violation of every regulation in some particular does not always invalidate the action taken thereunder. If the Regulation in this instance was not complied with in the respect indicated, appellant was not prejudiced in any way.

Here there was no lack of an oath but only a question of the status of the person administering it; obviously an a fortiori situation.

Far from being prejudiced from the fact that a non-commissioned officer accepted the contract terms on behalf of the Navy, Johnson was the recipient of considerable benefits under the agreement: thirty-three weeks of special training which he would not otherwise have received. On its part, the Navy, by enrolling Johnson in the Nuclear Field Program, manifested its intent to be bound by the extension agreement, regardless of any flaw existing in the execution of the contract. Thus, even assuming for the moment that the notarial defect prevented the parties from being legally bound at the time of signing, their subsequent acts constituted a dual ratification of the contract terms. See Clews v. Jamieson, 182 U.S. 461, 483, 21 S.Ct. 845, 45 L.Ed. 1183 (1901); Restatement (2d) Agency, § 319 (1958).

The agreement in question, however, did not need ratification in order to bind the parties; it was valid from the moment Johnson signed his name to the agreement and swore to his loyalty oath before the warrant officer.⁵ Even if Johnson had neglected entirely to take the oath, his signature would have sufficed to bind him. See Nixon, supra, at 938-940 of 422 F.2d and Stone, supra, at 552 of 431 F.2d.

The extension agreement states that it "shall form a part" of the enlistment contract. By signing the extension agreement Johnson agreed that the extension was ". . . subject to the provisions and obligations of said contract of enlistment." The contract of enlistment contains numerous provisions and obligations that continue in force by reason of the extension agreement, such as the obligations to discharge duties in...