Russo v. Luba
| Decision Date | 23 September 1975 |
| Docket Number | Civ. A. No. 75-798. |
| Citation | 400 F. Supp. 370 |
| Parties | Angelo J. RUSSO, Petitioner, v. Lt. Lawrence T. LUBA (Pennsylvania Nat'l Guard) et al., Respondents. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Gustave Diamond, Pittsburgh, Pa., for petitioner.
David M. Curry, Asst. U. S. Atty., Pittsburgh, Pa., for respondents.
This is an application for a writ of habeas corpus, temporary restraining order and preliminary injunction brought by the petitioner, Angelo J. Russo, pursuant to 28 U.S.C. § 2241. The petitioner, Angelo J. Russo, is a former member of the Pennsylvania Army National Guard and claims to have been improperly ordered to active duty due to his failure to satisfactorily participate in scheduled training drills. More specifically, petitioner alleges that the action of respondents in ordering him to active duty was in violation of his rights to administrative due process, were arbitrary and capricious, and were the result of discriminatory, biased and prejudiced conduct by the petitioner's commanding officer against the petitioner. The Court has affored the parties a full and complete hearing and has considered all the testimony and arguments of counsel and must conclude that petitioner's prayer for relief must be denied.
The facts may be briefly stated. Petitioner was a member of the Pennsylvania Army National Guard by virtue of his enlistment in the Guard on June 26, 1969, for a period of six years. Each member of the National Guard is required to participate satisfactorily in at least forty-eight scheduled drills and fifteen days of annual training per year during his enlistment obligation. One National Guard drill consists of a four hour training period referred to as a unit training assembly (UTA). A multiple unit training assembly (MUTA) is a combination of unit training assemblies. Any member who fails to attend any portion of a MUTA is charged with one absence for each UTA equivalent not attended. Petitioner had accumulated two (2) unexcused absences as of July 20, 1974 and his failure to attend the scheduled drills of August 17th & 18th, 1974 gave him a total of six (6) unexcused absences which caused him to be ordered for active duty pursuant to AR 135-91. Petitioner appealed this decision through the available appeal procedures yet each time the decision ordering him to active duty was upheld.
The Court in reviewing this appeal is limited to determining whether or not the military has complied with its regulations in ordering petitioner to active duty: U. S. v. Greer, 394 F.Supp. 249 (D.Ct.N.J.1975). Discretionary administrative decisions of military authorities consistent with the procedures mandated by military regulations are not subject to review. O'Mara v. Zebrowski, 447 F.2d 1085 (3rd Cir.,...
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