Mellinger v. Laird

• Decision Date: 16 February 1972
• Docket Number: Civ. A. No. 70-40.
• Citation: 339 F. Supp. 434
• Parties: Arthur G. MELLINGER, III, NG-23-911-226 v. Melvin LAIRD, Secretary of Defense, et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

339 F. Supp. 434

Arthur G. MELLINGER, III, NG-23-911-226 v. Melvin LAIRD, Secretary of Defense, et al.

Civ. A. No. 70-40.

United States District Court, E. D. Pennsylvania.

February 16, 1972.

COPYRIGHT MATERIAL OMITTED

Henry A. Stein, Philadelphia, Pa., for plaintiff.

Barry W. Kershner, Asst. U. S. Atty., Philadelphia, Pa., for defendants.

OPINION AND ORDER

MASTERSON, District Judge.

This is another in the long series of cases involving the activation of military reservists for failure to participate satisfactorily in their units of the Ready Reserve.¹ Private Mellinger enlisted in the Army National Guard on March 22, 1964, thereby incurring a six year obligation which would have expired on March 21, 1970. About 3½ months before his discharge, however, the Army ordered Mellinger to active duty for a period of 15 months, 9 days. The Army activated Mellinger pursuant to 10 U.S.C. § 673(a) and (b) which read as follows:

"(a) Notwithstanding any other provision of law, the President may order to active duty any member of the Ready Reserve of an armed force who —

(1) is not assigned to, or participating satisfactorily in, a unit for the Ready Reserve;

(2) has not fulfilled his statutory reserve obligation; and

(3) has not served on active duty for a total of 24 months.

(b) A member who is ordered to active duty under this section may be required to serve on active duty until his total service on active duty equals 24 months. If his enlistment or other period of military service would expire before he has served the required period under this section, it may be extended until he has served the required period."

By Executive Order No. 11366, the President delegated his authority under this statute to the Secretary of Defense who, in turn, authorized promulgation of A. R. 135-91, which established policies and procedures governing satisfactory participation. In Paragraph 12, the Regulation states that:

"A member fails to participate satisfactorily when he accrues in any 1-year period a total of five or more unexcused absences from scheduled unit training assemblies . . ."

Paragraph 5(d) (12) provides that:

"A member present at a scheduled unit training assembly will not receive credit for attendance thereat unless he is in the prescribed uniform, presents a neat and soldierly appearance, and performs his assigned duties in a satisfactory manner as determined by the unit commander."

And, A. R. 600-20, paragraph 31 establishes, in part, the criteria of a "neat and soldierly appearance."

"The hair to include sideburns will be well groomed, cut short or medium length and neatly trimmed at all times."

Private Mellinger found himself within the orbit of this statute and accompanying Regulations on November 9, 1969 when he received his fourth and fifth unexcused absences within a one year period. On that date he participated unsatisfactorily in the morning and afternoon training periods. Ironically he received these critical absences on the last day of the one year period in which his first charged unexcused absence (which occurred on November 10, 1968) could have been counted toward the required total of five.² The behavior which prompted Captain Snelbecker, Mellinger's Company Commander, to impose two unexcused absences consisted of Mellinger's unjustified lateness at the morning training period and his long and untidy hair and sideburns at the afternoon session.^2a

More specifically, the evidence before us indicates that on November 9, 1969 Private Mellinger arrived about 40 minutes late for the scheduled morning drill because he overslept.³ Although Mellinger telephoned his Unit to explain that he would be late,⁴ and it was apparently informal company policy to grant excused absences upon a telephone call (prior to the commencement of scheduled activities),⁵ nevertheless, Mellinger received a point. Captain Snelbecker explained that Mellinger's lateness was not excused because he, in particular, had been late on other occasions with impunity, and that as the Commanding Officer, he felt a crackdown was necessary.⁶

At the afternoon session, Captain Snelbecker cited Mellinger because his sideburns and hair failed to comply with established military standards. It is undisputed that well before November 9, 1969, the defendants mailed a diagram which clearly depicts acceptable lengths of sideburns and hair to every reservist, including Mellinger.⁷ Aside from the diagram, it is also undisputed that Captain Snelbecker personally told Mellinger at the morning assembly that his hair and sideburns were too long and ordered him to at least trim his sideburns before the afternoon inspection.⁸ Since November 9th was a Sunday, a day on which it would be extremely difficult to find a barber, Captain Snelbecker decided to tolerate the long hair provided Mellinger made an attempt, using readily available razors, to comply with the regulation on sideburns.⁹ Besides Private Mellinger, Captain Snelbecker warned the entire unit that they should make an effort to comply with the established standards before the impending inspection.¹⁰ Although other members of the Unit took their Commanding Officer's instructions seriously and immediately trimmed their sideburns during the noontime break,¹¹ Mellinger did nothing.¹² As a result, Captain Snelbecker imposed a fifth unexcused absence.¹³ And Mellinger's active duty orders soon followed on December 3, 1969.

A month later, Mellinger filed this action in federal court alleging various statutory and constitutional deprivations which, he claims, render his orders to active duty unlawful. He seeks habeas corpus, mandamus, or injunctive relief. On January 16, 1970, we issued a writ of mandamus under 28 U.S.C. § 1361, in effect staying Mellinger's activation orders until he was afforded an opportunity to exhaust his appellate remedies within the military. Presently before this court are three motions; one by the defendants who would have us dismiss his complaint and vacate the mandamus order, and the other two by the plaintiff who seeks either a permanent writ (or injunction) forbidding his activation or, in the alternative, continuation of the temporary mandamus pending the convention of a three judge court to hear various challenges to the constitutionality of 10 U.S.C. § 673. For the reasons developed below, we will grant the defendants' motion and deny those of the plaintiff. In short, it is our considered judgment that we have no basis to restrain the Army from activating Private Mellinger for a period of 15 months and 9 days.

I.

It is firmly established that a federal court lacks jurisdiction to review discretionary judgments of military officers acting within the scope of their authority.¹⁴ On the other hand, it is equally well settled that the military may not violate their own regulations,¹⁵ an Act of Congress¹⁶ or the Federal Constitution¹⁷ in issuing military orders, and a federal court possesses jurisdiction to prevent such violations. Moreover, because the military's power to issue orders flows entirely from its authority granted by the Federal Constitution, Acts of Congress, and any regulations passed pursuant thereto, it follows that these bodies of law set the boundaries for and limit the legality of all military orders whether discretionary or mandatory.¹⁸ To state this proposition another way, no military order may violate the Constitution, Federal statute or Army regulation, and whether or not the order in question constitutes a discretionary determination is irrelevant to this fundamental principle.¹⁹ Hence, whenever a litigant attacks a military order, and such attack is predicated upon violation of regulations, Federal legislation or the Constitution, a federal court must review the questioned order itself, including any exercise of discretion, if such review is necessary to determine whether in fact the order controverts one of the three controlling areas of law. See Smith v. Resor, 406 F.2d 141 (2nd Cir. 1969).²⁰

In this case Mellinger claims that the Army violated both its official regulations as well as the Federal Constitution. We begin with Mellinger's challenges based upon the regulations since a favorable disposition on these points would obviate the need to face constitutional issues.

II.

The five arguments based upon alleged violations of regulations may be disposed of rather quickly. First, Mellinger contends that the Army violated AR 135-91(20) (e) in not providing him with a personal hearing including representation and right of cross-examination before the Delay Appeal Board, the body which is charged with acting on appeals from active duty orders.²¹ Although prior to November 24, 1970 AR 135-91 (20) (e) stated that the provisions of AR 15-6 which afford such a hearing were applicable to proceedings before the Delay Appeals Board,²² and Mellinger should have received such a hearing under the regulation; nevertheless, in our judgment subsequent events cured this defect.

Aside from his written appeal to the Delay Appeal Board (which the Third Circuit held satisfied the requirements of due process in O'Mara v. Zebrowski, supra), on April 27, 1970 Mellinger received a personal hearing under Article 138, Uniform Code of Military Justice, (10 U.S.C. § 938), before Major Harold S. Irwin, Jr., Judge Advocate General Corps. At that hearing he was afforded the opportunity to have counsel present,²³ testify and cross examine witnesses against him. In substance, Mellinger received every procedural right that should have been afforded to him under AR 15-6.^23a Moreover, after this "procedurally laden" hearing, Mellinger received a letter from the Acting Chief, Military Affairs Division of the Judge Advocate General Corps indicating that based on the Article 138 hearing, the latter had concluded that Captain Snelbecker did not abuse his discretion or single Mellinger out for special treatment by giving him two unexcused absences on November 9, 1969. In...