Switkes v. United States

• Decision Date: 20 June 1973
• Docket Number: No. 702-71.,702-71.
• Parties: Daniel A. SWITKES v. The UNITED STATES.
• Court: U.S. Claims Court

480 F.2d 844 (1973)

Daniel A. SWITKES v. The UNITED STATES.

No. 702-71.

United States Court of Claims.

June 20, 1973.

David Rein, Washington, D. C., atty. of record for plaintiff. Forer & Rein, Washington, D. C., of counsel.

Arthur E. Fay, Washington, D. C., with whom was Asst. Atty. Gen. Harlington Wood, Jr., for defendant.

Before COWEN, Chief Judge, and DAVIS, SKELTON, NICHOLS, KASHIWA, KUNZIG and BENNETT, Judges.

OPINION

KUNZIG, Judge, delivered the opinion of the court:^*

Plaintiff, in this military pay case, is suing to recover an amount representing the pay and allowances of an Army Captain from May 16, 1970 through April 9, 1971. After being admittedly absent without leave (AWOL), plaintiff obtained two separate federal court orders which had the effect of restraining the Army from sending him to Vietnam.

In issue is whether the federal court orders or any other event changed plaintiff's AWOL status thus entitling him to pay and allowances for the period in question.

It is our opinion that plaintiff is not entitled to total recovery. He may recover for only those periods in which he was in compliance with his orders.¹

Plaintiff, who at the time was a Captain in the United States Army Reserve and a medical doctor, was called to active duty in September 1969. He began an extended tour of active duty on September 17, 1969.

In April 1970, while plaintiff was assigned to the Ireland Army Hospital at Fort Knox, Kentucky, he received orders which directed him to report to Travis Air Force Base in California by June 12, 1970, for shipment to Vietnam. Plaintiff was authorized to take a period of leave in connection with the change of duty station; he departed from Fort Knox on or about May 20, 1970, thus beginning his period of authorized leave. This leave was extended twice, changing his reporting date at Travis Air Force Base to July 20, 1970. Plaintiff went to California, but did not report to Travis; nor did he report to Vietnam.

The next orders that plaintiff received were those of April 7, 1971, directing him to report to Fort Hamilton, New York, for the purpose of being released from the Army. He complied, and on April 9, 1971, was formally discharged from the Army.

Plaintiff contends that he was either on active duty or authorized leave during the entire period with the sole exception of a four day period which occurred between the time that he was supposed to report to Travis and the date of the restraining order issued by the United States District Court for the Eastern District of California. Accordingly he claims that he is entitled to pay and allowances from May 16, 1970 to April 9, 1971, excluding those four days.

In order to clearly understand plaintiff's position, a chronology of events is necessary:

1962-1967 — Plaintiff received a military deferment in order to attend medical school.

November 1967 — Plaintiff applied for and was denied conscientious objector status.

September 19, 1968 — Plaintiff applied for, was tendered, and accepted an appointment as a commissioned officer, United States Army Reserve.

September 17, 1969 — Plaintiff voluntarily entered on active duty.

April 23, 1970 — Plaintiff received orders to report to Travis Air Force Base in California for shipment to Vietnam.

May 20, 1970 — Plaintiff went on authorized leave prior to reporting to Travis Air Force Base.

June 6, 1970 — Plaintiff applied to the United States District Court for the Southern District of New York (hereinafter referred to as New York court) for a writ of habeas corpus on the grounds that the denial of his conscientious objector application had been erroneous.

June 9, 1970 — New York court issued a restraining order which restrained the military authorities from removing plaintiff from the Southern District of New York pending consideration of his petition for a writ of habeas corpus.

July 2, 1970 — New York court dismissed plaintiff\'s petition, leaving the restraining order in effect until July 7, 1970.

July 20, 1970 — Plaintiff failed to report to Travis Air Force Base for shipment to Vietnam as ordered. Plaintiff also did not report to Vietnam.

July 24, 1970 — Plaintiff filed in the United States District Court for the District of Eastern California (hereinafter referred to as the California court) another petition for a writ of habeas corpus, again seeking to obtain his discharge. The court immediately issued a restraining order which restrained the military authorities from removing plaintiff from the Eastern District of California pending consideration of his petition. Travis Air Force Base is in said District.

November 9, 1970 — California court's restraining order was superseded by a preliminary injunction to the same effect.

February 9, 1971 — California court dissolved preliminary injunction effective February 11, 1971.

February 9, 1971 — Petitioner filed a third petition for writ of habeas corpus in the United States District Court for the District of Columbia (hereinafter referred to as the D.C. court), once more seeking to obtain his discharge from the Army. The court immediately issued a restraining order which restrained the military authorities from transferring plaintiff to overseas duty pending disposition of his petition.

March 3, 1971 — California court dismissed the petition pending before that court.

March 22, 1971 — D.C. court entered a judgment holding that plaintiff had been unlawfully inducted into the armed services, granting the writ of habeas corpus, and ordering plaintiff\'s discharge from the Army.

April 7, 1971 — Plaintiff received orders to report to Ft. Hamilton in New York for the purpose of being discharged from the Army.

April 9, 1971 — Plaintiff was discharged from the Army.

During the entire period from July 20, 1970 until April 7, 1971, plaintiff did not physically report to any military installation.

Although we do feel that plaintiff is entitled to recover for the periods when he was in compliance with his military orders, May 16, 1970 to July 20, 1970 and April 7, 1971 to April 9, 1971, the remaining time is irrevocably tainted by his going AWOL on July 20, 1970. In the entire chain of events subsequent to July 20, 1970, the only event which altered his AWOL status was the order received on April 7, 1971, to report to Ft. Hamilton.

Fortunately there is a clear and unambiguous statute concerning members of the armed services who are absent without leave. Title 37, Section 503(a) of the United States Code reads:

A member of the Army, Navy, Air Force, Marine Corps, Coast Guard, or Environmental Science Services Administration, who is absent without leave or over leave, forfeits all pay and allowances for the period of that absence, unless it is excused as unavoidable.

Since plaintiff has admitted that he was AWOL when he failed to report on July 20, 1970, there only remains a determination as to the length of the period of absence and whether or not the absence was excused as unavoidable.

Plaintiff's primary contention is that the period of his being absent without leave covered only four days. He argues that the issuance of the California restraining order on July 24, 1970 changed his status from AWOL to active duty status awaiting orders to report to a particular assignment.

Plaintiff's rationale for this contention is premised upon the assumption that since the Army was restrained from sending him to Vietnam and since he was on orders to report to Vietnam, that the court order superseded his military orders and he was no longer AWOL. This just is not the case.

The California restraining order did not expressly restrain the military authorities from sending plaintiff to Vietnam. Rather the order restrained and enjoined the military "from removing petitioner from the Eastern District of California". Therefore, plaintiff could properly have remained on military duty anywhere within this District. Plaintiff has readily admitted throughout these proceedings that he was on orders to report to Travis Air Force Base which lies within the Eastern District of California. It was so stipulated by the parties at a pre-trial conference before the Commissioner of this court and it was affirmatively pleaded in the pleadings before the California court.² Therefore the California order had no force or effect upon that part of plaintiff's military orders requiring him to report to Travis. The same can be said of the District of Columbia order which merely restrained the military from sending plaintiff out of the country.

It is clear then that neither of the court orders in effect subsequent to plaintiff's July 20, 1970 reporting date interfered with plaintiff's reporting to Travis Air Force Base on July 20, 1970, or excused him from reporting any time thereafter. Plaintiff could have reported to Travis and still have been in compliance with both his military orders and the judicial restraining orders.

This case is not dissimilar from the situation presented in Dodge v. United States, 33 Ct.Cl. 28 (1897). Despite subsequent events the court held that the plaintiff was AWOL for the entire period in dispute because he was already AWOL when the subsequent event (incarceration) extended his absence from the military. In the instant case plaintiff was clearly AWOL on July 20, 1970 and the subsequent court orders did not obviate this situation. Plaintiff should have reported as ordered.

Thus, since we have concluded that the court orders did not alter plaintiff's status, he has to be considered as having been AWOL for the entire period until he received his change of orders on April 7, 1971.

Of prime importance to the plaintiff's case before this court is the fact that plaintiff wrote to the Commanding Officer at Travis Air Force Base asking him where he should report due to the pendency of the court orders. Since plaintiff was a doctor, the Commanding Officer referred the letter to the Surgeon General. Six months later, plaintiff wrote a second letter...