Keister v. Resor

• Decision Date: 15 May 1972
• Docket Number: No. 71-1936.,71-1936.
• Parties: Richard E. KEISTER, Jr., Private (E-2), Appellant, v. The Honorable Stanley RESOR, Secretary of the Army, et al.
• Court: U.S. Court of Appeals — Third Circuit

462 F.2d 471 (1972)

Richard E. KEISTER, Jr., Private (E-2), Appellant, v. The Honorable Stanley RESOR, Secretary of the Army, et al.

No. 71-1936.

United States Court of Appeals, Third Circuit.

Argued March 13, 1972.

Decided May 15, 1972.

Harvey L. Anderson, Arinson & Anderson, Philadelphia, Pa., for appellant.

Barry W. Kerchner, Asst. U. S. Atty., Louis C. Bechtle, Philadelphia, Pa., for appellees.

Before MAX ROSENN and JAMES ROSEN, Circuit Judges, and TEITELBAUM, District Judge.

OPINION OF THE COURT

TEITELBAUM, District Judge.

In this appeal, the appellant, Richard E. Keister, Jr., seeks to have set aside a district court order refusing his petition for a writ of habeas corpus. By his petition Keister sought to foreclose the United States Army from activating him to military duty. His activation was stayed pending our disposition of this appeal.

Keister, a reservist in the United States Army Reserve, absented himself in August of 1970 from the final six days of the required fifteen days of Annual Active Duty for Training (ANACDUTRA) without leave or authorization. He was, because of that, certified, on September 7, 1970, an unsatisfactory participating reservist, and advised that he was being recommended for activation. He was further advised that he had five days in which to file an appeal with the Army's Delay Appeal Board to delay his entry on active duty. Thereafter, after some harmless procedural errors by both sides, the appellant filed not only on appeal with the Delay Appeal Board but also a request for a discharge on the basis that he was psychiatrically unfit for military service. On March 12, 1971, the Appeal Board denied Keister's appeal of his involuntary call to active duty. With respect to his request for a discharge, the Army has officially deferred its determination until after his activation.

As in the district court, the appellant has arrayed in this appeal a welter of attacks, both constructional and constitutional, against the Army's procedures. All of the attacks were soundly handled by the district court, and we think that only a few therefore require comment.

Keister's two principal contentions were, and are, (1) that he is entitled by the Army regulations themselves to have his request for discharge passed on before he is activated and (2) that he is entitled before he is activated to what amounts to a full-blown hearing on the matter of whether or not his absence was excusable. The district court found that he was entitled to neither. We agree.

With respect to his request for a discharge, the appellant maintains that the Army has not complied with its own procedures. He contends that,

". . . when a reservist who has been called to involuntary active duty as an unsatisfactory participating reservist makes application for discharge, the Army is required to process and take final action on the discharge request prior to calling him to involuntary duty, and if he is determined to be eligible for discharge, he must be discharged."

He contends that is the procedure required by Department of Defense Directive 1215.13.

The subject of Directive 1215.13 is "Unsatisfactory Performance of Ready Reserve Obligation." It is for the express purpose of providing the military services, including the Army, with,

". . . Department of Defense policies concerning the actions to be taken in regard to members of the Ready Reserve whose performance of duty or participation in reserve training is determined to be unsatisfactory." Emphasis supplied.

Paragraph IV B¹ thereof provides simply that an unsatisfactory participant in a Ready Reserve unit will be ordered to active duty as authorized by 10 U.S.C. § 673a and Executive Order 11366. Paragraph IV B expresses policy only, viz., that members of the Ready Reserve who fail to participate satisfactorily in the reserves will be ordered to active duty.

The exceptions to that policy found in Paragraph IV C² form the center of appellant's contention. Paragraph IV C provides that a reservist who does not satisfactorily participate in the reserves for any of a few enumerated reasons will be processed, upon application, for discharge. It provides further that, of course, only those eligible for discharge for any of the enumerated reasons will be discharged. The appellant reads this exception as mandating the determination of a reservist's eligibility for discharge before his activation.

We think his reading not only reads into the exception what is not there, but also misconstrues the context of the exception. He interprets it as an exception from being called to active duty. But it is not that at all. It is an exception from service on active duty. Neither Paragraph IV B nor IV C contains language which in any way purports to structure the timing of determining a reservist's eligibility for discharge. In terms of from what is particularly excepted, IV C appears to be most reasonably related to subparagraph 2 of IV B which subparagraph provides that a reservist ordered to active duty under these provisions,

". . . may be required to serve on active duty until his total service on active duty or active duty for training equals twenty four (24) months."

In sum, it is the actual serving of active duty rather than the procedures of calling to active duty which is the primary import and concern of Paragraph IV B. It follows, then, that the exceptions of IV C apply to service on, rather than to the procedures of being called to, active duty. We conclude that neither the language nor the context of the "exception" found in IV C supports the appellant's contention.

Moreover, even if the provisions of Directive 1215.13 are ambiguous, the Army's construction is at least as reasonable as any other conceivable construction. We are commanded generally to avoid intrusion on military matters manifestly within the scope of military jurisdiction. Orloff v. Willoughby, 345 U.S. 83, 73 S.Ct. 534, 97 L.Ed. 842 (1953); Reaves v. Ainsworth, 219 U.S. 296, 31 S.Ct. 230, 55 L.Ed. 225 (1911); O'Mara v. Zebrowski, 447 F.2d 1085 (3rd Cir.1971); Antonuk v. United States, 445 F.2d 592 (6th Cir.1971); Morbeto v. United States, 293 F.Supp. 313 (D.C.C.D.Cal.1968). To interpret and implement Directive 1215.13 as appellant suggests, if it is ambiguous, we think would be to unjustifiably trammel the Army's discretion.

With respect to his contention that he is entitled to a hearing before his activation on the matter of whether or not his absence was excusable, appellant proceeds on two fronts. First, he argues that he is constitutionally entitled to a hearing "with the right to counsel, cross-examination, right to present witnesses and evidence and the other procedural rights." He invokes the fifth amendment right to due process. In Reaves v. Ainsworth, supra, it was stated that,

"To those in the military . . . the military law is due process."

At least with respect to the military's internal procedures regarding civil matters that pronouncement is as vibrant today as it was in 1911. O'Mara v. Zebrowski, supra, Raderman v. Kaine, 411 F.2d 1102 (2nd Cir.1969). More specifically, it has been expressly held that no constitutional infirmity arises from the absence of a hearing before the involuntary activation of a reservist. O'Mara v. Zebrowski, supra; Ansted v. Resor, 437 F.2d 1020 (7th Cir.1971); and Hickey v. Secretary of Army, 320 F. Supp. 1241 (C.C.D.Mass.1971).

Second, he maintains that the applicable Army regulations themselves require a hearing. He argues, specifically, that one is required by virtue of Army Regulation No. 15-6. He argues that a hearing is required either at the time a reservist's unit commander makes his determination to recommend activation or, alternatively, at the time of the Appeal Board's consideration of a reservist's appeal. The heart of his contention is that he is entitled by AR...