Moreno v. Commander, McChord Air Force Base, CIV-81-399-TUC-RMB.

• Decision Date: 22 July 1983
• Docket Number: No. CIV-81-399-TUC-RMB.,CIV-81-399-TUC-RMB.
• Citation: 567 F. Supp. 1437
• Parties: Fernando MORENO, Petitioner for a Writ of Habeas Corpus, v. COMMANDER, McCHORD AIR FORCE BASE, TACOMA, WASHINGTON, et al., Respondents.
• Court: U.S. District Court — District of Arizona

567 F. Supp. 1437

Fernando MORENO, Petitioner for a Writ of Habeas Corpus, v. COMMANDER, McCHORD AIR FORCE BASE, TACOMA, WASHINGTON, et al., Respondents.

No. CIV-81-399-TUC-RMB.

United States District Court, D. Arizona, Tucson Division.

July 22, 1983.

Thomas G. Kelly, III, Blaser, Kelly & Don, P.C., Tucson, Ariz., for petitioner.

A. Melvin McDonald, U.S. Atty., Tucson, Ariz., Dist. of Ariz., Don B. Overall, Asst. U.S. Atty., Richard R. James, Lt. Colonel, USAF, Gen. Litigation Div., United States Air Force, Washington, D.C., for respondents.

ORDER

BILBY, District Judge.

Petitioner, an Air Force Reservist, seeks a writ of habeas corpus, a permanent injunction, and a temporary restraining order; he has also requested this Court to order respondents to grant him an honorable discharge. He alleges that in ordering him to active duty his superiors violated Air Force regulations and acted capriciously and arbitrarily.

This Court has denied the request for a temporary restraining order and further action was delayed while petitioner submitted the matter to the Air Force Board for Correction of Military Records (AFBCMR).¹ Respondents have requested dismissal or denial of the petition.

The main issue here is whether or not the military decision in question falls within the scope of judicial review. In answering this, the Court must necessarily consider the merits of petitioner's claims to some degree.

After serving fourteen (14) months of a four (4) year enlistment petitioner requested a discharge in order to attend college. In exchange for this early discharge, he agreed to enlist in the Air Force Reserves for six (6) years, to participate in the Air Force Reserve Officers' Training Corps (AFROTC) while attending college, and to accept appointment as a commissioned officer upon receipt of his degree. The agreement signed also provided that if he were disenrolled from AFROTC he could be called to active duty, depending upon the reason for disenrollment. Before completing his degree program petitioner submitted a written request for disenrollment from AFROTC setting forth six reasons for his request. Following an Air Force investigation, his reasons for disenrollment were categorized as an anticipatory breach and he was later ordered to report for active duty at McChord Air Force Base. He never reported for duty and the Air Force has apparently taken no further action, pending the outcome of this suit. In filing this action petitioner asserts that his reason for AFROTC disenrollment was an inability to continue college enrollment and that, therefore, in accordance with Air Force regulations, he should have been discharged from the Reserves, rather than called to active duty.

JURISDICTION

Under Strait v. Laird, 406 U.S. 341, 92 S.Ct. 1693, 32 L.Ed.2d 141 (1972), this Court has jurisdiction to hear this case even though petitioner has been ordered to duty in the state of Washington. In Strait the Court held that the California District Court had jurisdiction even though that petitioner was under the nominal command of a superior in Indiana; there the court found that Strait's "only meaningful contact" with the Army had been in California, Id. 343, 92 S.Ct. at 1694, and that his commanding officer was "present" in California through the military hierarchy there that had processed his application for discharge, Id. 345, 92 S.Ct. at 1695. Petitioner Moreno has had most, if not all, of his meaningful contacts with the Air Force in Arizona and personnel here processed his AFROTC disenrollment.

MERITS

Courts should be "scrupulous" in avoiding intervention in military matters, Arnheiter v. Chafee, 435 F.2d 691, 692 (9th Cir.1970), citing Orloff v. Willoughby, 345 U.S. 83, 93, 73 S.Ct. 534, 540, 97 L.Ed. 842. In Wallace v. Chappell, 661 F.2d 729 (9th Cir.1981), cert. granted sub nom. Chappel v. Wallace, ___ U.S. ___, 103 S.Ct. 292, 74 L.Ed.2d 276 (1982), the Ninth Circuit adopted the test set forth in Mindes v. Seaman, 453 F.2d 197 (5th Cir.1971), as an "appropriate framework for determining which military actions are reviewable and which are not." Wallace, at 734. This test requires a petitioner to initially allege: (a) violation of the Constitution, a federal statute, or military regulations and (b) exhaustion of intraservice remedies. If both conditions are met, as they are in this case, the trial court must then weigh four factors to determine reviewability:

1. The nature and strength of the petitioner's claim.

2. The potential injury to the petitioner if review is refused.

3. The type and degree of anticipated interference with the military function.

4. The extent to which the exercise of military expertise or discretion is involved.

As regards the nature and strength of pet...