Parrish v. Brownlee

• Decision Date: 10 September 2004
• Docket Number: No. 5:04-CV-459-FL(1).,5:04-CV-459-FL(1).
• Citation: 335 F.Supp.2d 661
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: Michael T. PARRISH, Plaintiff, v. The Honorable Les BROWNLEE, Acting Secretary of the U.S. Army; Major General Dorien T. Anderson, Commanding General, U.S. Army Human Resources Command, and their successors, in their official capacities, Defendants.

335 F.Supp.2d 661

Michael T. PARRISH, Plaintiff, v. The Honorable Les BROWNLEE, Acting Secretary of the U.S. Army; Major General Dorien T. Anderson, Commanding General, U.S. Army Human Resources Command, and their successors, in their official capacities, Defendants.

No. 5:04-CV-459-FL(1).

United States District Court, E.D. North Carolina, Western Division.

September 10, 2004.

Mark L. Waple, Waple and Associates, Fayetteville, NC, for plaintiff.

R.A. Renfer, Jr., Asst. U.S. Attorney, U.S. Attorney's Office, Raleigh, NC, for defendants.

ORDER

FLANAGAN, District Judge.

This matter is before the court on plaintiff's motion to enjoin defendants (collectively, "the Army") from calling him to active duty. In support of his motion, plaintiff contends that his status as a reservist terminated upon completion of his contractual military service obligation in December 2003, and that the Army's order to duty was made arbitrarily and capriciously, without due process of law, and in breach of his enlistment contract. On the basis of allegations that a report date had been set for August 27, 2004, the court granted plaintiff's motion for temporary restraining order on August 25, 2004, to allow time for a hearing on the preliminary injunction motion. On September 1, 2004, the court heard oral argument on plaintiff's motion for preliminary injunction. For the reasons that follow, the court denies plaintiff's motion for preliminary injunction.

I. BACKGROUND

On September 23, 1992, plaintiff entered into two validly executed contracts with the Army for the purpose of commencing an Army Reserve Officer Training Corps (ROTC) program at college. First, in the presence of an ROTC contracting officer, plaintiff signed the Department of Defense (DD) Forms 4/1 through 4/2, Enlistment/Reenlistment Document ("Enlistment Contract"), which provides, in relevant part:

8. I am enlisting/reenlisting in the United States Army Reserve this date for 8 (eight) years....

* * * * * *

b. Remarks: ... AUTHORITY: AR [Army Regulation] 145-1, USAR CONTROL GROUP (ROTC)

c. The agreements in this section and attached DA FORM 597-3 ["Cadet Contract"] are all the promises made to me by the Government....

* * * * * *

9. FOR ALL ENLISTEES OR REENLISTEES: Many laws, regulations, and military customs will govern my conduct and require me to do things a civilian does not have to do.

* * * * * *

10. MILITARY SERVICE OBLIGATION FOR ALL MEMBERS OF THE ACTIVE AND RESERVE COMPONENTS...

a. FOR ALL ENLISTEES: If this is my initial enlistment, I must serve a total of eight (8) years. Any part of that service not served on active duty must be served in a Reserve Component unless I am sooner discharged.

* * * * * *

d. As a member of the Ready Reserve I may be required to perform active duty or active duty for training without my consent (other than as provided ... [in] this document) as follows:

(1) In time of national emergency declared by the President of the United States, I may be ordered to active duty (other than for training) for not more than 24 consecutive months....

In addition, plaintiff signed the Department of the Army (DA) Form 597-3, Army Senior Reserve Officers' Training Corps (ROTC) Scholarship Cadet Contract ("Cadet Contract"), which provides, in part:

1. As the ROTC scholarship cadet applicant named above, I hereby agree to do the following:

a. Enlist for a period of eight years in the U.S. Army Reserve (USAR) as a cadet for assignment to the USAR Control Group (ROTC) to become a member of the Army ROTC Program.... This contract and the Enlistment Contract constitute the ROTC program required contractual agreements.

* * * * * *

3. Upon completion of all requirements for appointment, ... I agree to, as prescribed by the Secretary of the Army:

a. Apply for and accept an appointment, if offered, as a commissioned officer in either the Regular Army, USAR [U.S. Army Reserve] or ARNGUS [Army Reserve National Guard, U.S.], in accordance with governing Army regulations...

* * * * * *

c. Accept an appointment if offered, as a commissioned officer in either the USAR or ARNGUS and not resign such reserve appointment before completion of my original Regular Army appointment's eighth anniversary date.

d. Serve two, three, or four years, on active duty as a commissioned officer in the United States Army ... followed by service in the Reserve Component until the remainder of my eight year service obligation has been served.

Several military regulations are either directly referenced in these contracts or bear upon the rights and duties of Army Reserve members. For instance, AR 145-1, referenced on the first page of the Enlistment Contract, provides, in part:

This chapter prescribes policies and procedures for appointing ROTC cadets as commissioned officers in the U.S. Army....

* * * * * *

Appointments made under this chapter will be for an indefinite term.

AR 145-1, § 6-1 & § 6-4 (emphasis added). A Department of Defense rule similarly provides:

Those commissioned officers of the Reserve who have accepted indefinite appointments under Section 12203 of 10 U.S.C. (reference (b)) shall not be subject to mandatory discharge on completion of the statutory obligation.

Department of Defense Instruction (DODI)1200.15, ¶ 5.2.3.

In consideration for plaintiff entering into the Cadet Contract, the Army agreed to pay him a three-year undergraduate scholarship covering tuition and educational fees, a flat rate for books and supplies, and a monthly stipend. The Army did not promise to automatically discharge plaintiff upon completion of his MSO, and there was no mutual understanding that plaintiff would be automatically discharged upon completion of his MSO.

Upon completion of the Army Reserve Officer Training Corps (ROTC) program at college, plaintiff accepted a commission as an officer in the Army (Second Lieutenant) and served four years of active duty, from December 1995 to December 1999. Plaintiff resigned from active duty and was discharged from active duty, effective December 19, 1999. Plaintiff then was transferred to the Individual Ready Reserves (IRR).

Members of the IRR receive no pay or allowances. Other types of benefits are available to IRR officers, however, including "assignment opportunities to Selective Reserve position, training tours, advanced military schools, promotions[,] and retirement upon completion of twenty qualifying years of service." Gov Ex. R., p. 20. Retirement points are awarded, inter alia, for "duty performance including unit assignments and training tours." Plaintiff did not take advantage of these benefits while in the IRR, although he did receive fifteen (15) annual retirement points in the year 2002. While in the IRR, plaintiff was under no obligation to drill with the reserves, and plaintiff only was required to keep the IRR notified of his current and correct daytime phone number and mailing address.

In March 2003, before his MSO was complete, the Army sent plaintiff a two-sided form entitled "ARMY RESERVE STATUS AND ADDRESS VERIFICATION," to complete and return within 10 days from receipt. Parts A and B of this form request verification and update of address and other personal information. Part C, on the back of the form, requests information on "RESERVE PARTICIPATION INTERESTS, REQUESTS FOR REVIEW OF RESERVE STATUS, AND PHYSICAL CONDITION VERIFICATION." Part D, near the middle of the page, states, in its entirety:

PART D: REQUEST FOR RESIGNATION — OFFICERS ONLY. NOTE: VSI RECIPIENTS WHO RESIGN THEIR COMMISSION WILL LOSE THEIR VOLUNTARY SEPARATION INCENTIVE ENTITLEMENT.

AS AN OFFICER WHO HAS COMPLETED MY 8 YEARS STATUTORY OBLIGATION, I HEREBY TENDER MY RESIGNATION.

Signature of Officer ________________ Date _________

Immediately below Part D is a certification section applicable to the entire form, stating:

MY SIGNATURE BELOW CERTIFIES THAT THE INFORMATION PROVIDED ON THE FRONT AND BACK OF THIS FORM IS T[RUE]¹ AND CORRECT TO THE BEST OF MY KNOWLEDGE.

Signature of Reservist ________________ Date _________

Below this certification section, the form provides the following information:

PRINCIPAL PURPOSE: To verify pertinent information with the reservist concerning his or her address ... and physical condition. This information is used to update the individual's personnel record to determine availab[ility]² for mobilization in the event of a national emergency.

* * * * * *

DISCLOSURE: Providing this information is mandatory. Failure to provide this information could be detrimental to the reservis[t]³ during mobilization.

Plaintiff returned this form on April 23, 2003, indicating only an address and phone number correction in Part A, and signing and dating only the final certification.

Plaintiff completed his MSO on December 19, 2003. Around this time, plaintiff was in further communication with the Army, as described below.

On November 17, 2003, the Army sent plaintiff a letter notifying plaintiff that he needed to update his security clearance, and that if he did not update his security clearance, he was at risk of the following: "loss of military occupational specialty; clearance revocation/downgrade; reclassification; prevention of performing Annual Training, Active Duty for Training, Active Duty Special Work, and Temporary Tour Active Duty; ineligibility for promotion and discharge from the military." Def's Ex. G. Plaintiff returned the necessary information on February 2, 2004. After checking the form, the Army returned the form for signature on March 12, 2004. Plaintiff returned the paperwork with his signature to the Army on March 26, 2004.

In late March, 2004, roughly three months after plaintiff's MSO had completed, the Army again sent plaintiff an "ARMY RESERVE STATUS AND ADDRESS VERIFICATION" form, identical to the form sent March 2003, as outlined above. On this form, plaintiff indicated a change of address and indicated that his marital status had changed to "Married." This form...