United States v. Greer, Civ. A. No. 74-670.

• Decision Date: 17 January 1975
• Docket Number: Civ. A. No. 74-670.
• Citation: 394 F. Supp. 249
• Parties: UNITED STATES of America ex rel. Carl Peter NIEMANN v. Thomas U. GREER, Commanding General Fort Dix, New Jersey, et al.
• Court: U.S. District Court — District of New Jersey

394 F. Supp. 249

UNITED STATES of America ex rel. Carl Peter NIEMANN v. Thomas U. GREER, Commanding General Fort Dix, New Jersey, et al.

Civ. A. No. 74-670.

United States District Court, D. New Jersey.

January 17, 1975.

Rudolph Socey, Jr., Trenton, N. J., Harold M. Weiner, New York City, for petitioner.

Richard W. Hill, Asst. U. S. Atty., Trenton, N. J., for respondent.

OPINION

BARLOW, District Judge.

This is an application for a writ of habeas corpus brought by the petitioner, Carl Peter Niemann, pursuant to 28 U.S.C. § 2241. Petitioner, a former United States Army Reservist, claims to have been improperly ordered to active duty due to his failure to satisfactorily participate in scheduled Army Reserve drills. Specifically, the petitioner alleges that he received no notice of his involuntary activation or of his right to appeal that activation. Having carefully reviewed the pleadings, the documentary evidence presented, and having heard the petitioner's testimony, the Court is convinced that the application for a writ of habeas corpus must be denied.

The Court's scope of review in matters such as this is limited to determining whether or not the military has complied with its regulations in ordering the petitioner to active duty. 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, 1087 (3rd Cir. 1971).

Paragraph 12 of Army Regulation No. 135-91 provides that a Reserve member has failed to participate satisfactorily when he accrues five or more unexcused absences from scheduled unit training assemblies in any one-year period. Paragraph 12a of the same regulation further provides, consistent with the provisions of 10 U.S.C. § 673a, that any Reserve member who fails to participate satisfactorily in this regard may be ordered to active duty. Prior to requesting active duty orders, the Reserve member's unit commander is required to "determine if any cogent or emergency reasons existed which prevented the member from attending". Army Regulation No. 135-91, para. 12e(2). If no such reasons are present, the unit commander may request that the member be ordered to active duty. The concerned member must be immediately notified of any request for active duty orders and must be informed that he will be required to enter active duty in approximately thirty (30) days. Army Regulation No. 135-91, para. 12e(2). Prior to the actual issuance of active duty orders, Reserve members must also be notified of their right to appeal their involuntary activation within fifteen (15) days of the receipt of the right-to-appeal letter. Army Regulation No. 135-91, para. 14g.1. And, finally, once active duty orders are issued, para. 14h(3) of Army Regulation No. 135-91 requires that a copy of the orders be forwarded to the concerned member by certified mail, return receipt requested.

In this case, the petitioner enlisted in the Army Reserve on November 26th, 1968. His unit of assignment was the 320th General Hospital, 529 W. 42nd Street, New York, New York. On the date of his enlistment, the petitioner executed the Orientation Statement of Reserve Agreement Understanding (Form 838), which provides, inter alia:

"I understand that I will be ordered to active duty for a period which, when added to my prior service on active duty, active duty for training, annual field training or full time training duty, will total twenty-four (24) months if I fail to attend Annual Active Duty for Training or if I fail to participate satisfactorily by accruing in any one-year period a total of five or more unexcused absences from scheduled unit training assemblies. If I fail to attend a scheduled single unit training assembly (UTA) without proper authority I will be charged with one unexcused absence. If I fail to attend a multiple unit training assembly (MUTA) without proper authority, I will be charged with one unexcused absence for each UTA equivalent not attended. The maximum number of absences chargeable for failure to attend consecutive MUTA assemblies will be 4 unexcused absences."

It is uncontroverted that during the period from April 26th, 1972, to March 14th, 1973, the petitioner failed to attend substantially in excess of five unit training assemblies. (Tr. 14) In fact, the actual number of unexcused absences was approximately twenty-six (26).

In a letter dated March 28th, 1973, the petitioner was notified, presumably by regular mail, of his Reserve unit's intention to request that he be ordered to active duty in light of his accumulated unexcused absences. A formal request for active duty orders, dated March 31st, 1973, was then prepared and forwarded to the First Army. On April 25th, 1973, the First Army forwarded correspondence to the petitioner notifying him that active duty orders would be issued in approximately thirty (30) days, and that he had fifteen (15) days from the date of receipt of this notice to appeal his activation. This letter was mailed by certified mail and was returned to the First Army Headquarters marked "notified" and "unclaimed". Thereafter, on May 9th, 1973, petitioner was ordered to active duty. A copy of these orders sent to the petitioner by certified mail, was returned to the First Army marked "unclaimed". As previously stated, petitioner now alleges that his activation was improper in light of the military's failure to afford him proper notice of his activation and of his right to appeal, wherein he might have asserted certain meritorious defenses.

The Court is satisfied that in so ordering the petitioner to active duty the military authorities complied with the provisions of the applicable regulations. We note, in this regard, para. 14l of Army Regulation No. 135-91, which directs itself specifically to the proper notification of Reserve members ordered to active duty. It provides, in pertinent part, as follows:

"Notification of order

...