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WINTERS v. UNITED STATES

February 1, 1968

Paul V. WINTERS, Jr., Plaintiff,
v.
The UNITED STATES of America et al., Defendants



The opinion of the court was delivered by: DOOLING

MEMORANDUM and ORDER

 DOOLING, District Judge.

 This is an action for a judgment declaring the invalidity of the orders issued to Paul V. Winters, Jr. under date of December 19, 1967, and December 11, 1967, assigning him to involuntary active duty for seventeen months in the United States Marine Corps, and requiring him first to report on January 3, 1968, to the Inspector-Instructor, Sixth Communication Battalion, Force Troops, FMF, USMCR, Bronx, New York, and thereafter to report to Camp Pendleton, California, for physical examination, for further training and then for transfer overseas as a February 1968 replacement for duty with the Fleet Marine Force, Pacific, Western Pacific, Ground Forces (MCC 159). Pending the disposition of the present matter the orders have been postponed in effective date for approximately one month.

 It is concluded that the orders are valid and must be complied with.

 Plaintiff enlisted in the Marine Corps Ready Reserve on September 24, 1965, received the initial active duty training of approximately six months, and was then assigned to the 6th Communication Battalion, Force Troops, FMF, USMCR. His enlistment was accompanied by his signing what is called a "United States Marine Corps enlistment Contract and Record." Paragraph 40 of which provided as follows:

 
"40. I understand that upon enlistment in the Reserve of the United States Marine Corps, or upon transfer or assignment thereto, I may not be ordered to active duty without my consent except in time of war, or when in the opinion of the President a national emergency exists, or when otherwise prescribed by law, and that I may be required to perform active duty during such periods."

 At the same time he signed a "Statement of Understanding upon Enlistment" which contained the following clauses:

 
"d. Under current Selective Service Regulations I will not be inducted so long as my participation as a member of the Marine Corps Reserve is satisfactory, and will not be subject to induction after 6 years of such satisfactory participation (except in time of war or national emergency thereafter declared by Congress).
 
"e. I will be required to attend drills and training periods as prescribed, both prior to and following my six month period of active duty for training in order to remain in good standing for purposes of maintaining my proficiency and delay or deferment in call by Selective Service induction.
 
"f. I UNDERSTAND that SATISFACTORY PARTICIPATION consists of ATTENDANCE AT and SATISFACTORY PERFORMANCE of at least 90% of all scheduled drills and not to exceed 17 days of active duty for training each year with the unit to which attached, or if I am subsequently transferred to the Volunteer Ready Reserve, performance of active duty for training not to exceed 30 days each year. I understand that I will not be excused from active duty for training which may fall during the months of June, July, or August for the purpose of attending college.
 
"g. I FURTHER UNDERSTAND that if I fail or refuse to perform the training duties required, I may be ordered without my consent to perform not to exceed 45 days of additional active duty for training, or I may have my draft delay canceled, or my draft deferment canceled, and if so canceled, I may be inducted by the Selective Service System prior to the induction of other persons liable therefor.
 
"h. I DO FURTHER UNDERSTAND that I will be a member of the READY RESERVE throughout my 6 year period of service and that, as such, I am liable for involuntary call to active duty in time of future national emergency proclaimed by the President of the United States and may be required to serve not more than 24 months; and that in time of national emergency or war declared by Congress, I may be required to serve for the duration of the national emergency or war and for six months thereafter; or that I may be required to serve at such other times as the law may require."

 When Winters enlisted the basic extent of his ready reserve requirement was set out in 10 U.S.C. § 270. That Section required, subject to proper regulations prescribed by the Secretary of Defense or his delegate, that each ready reservist participate in at least 48 scheduled drills or training periods during each year and serve on active duty for training not more than 17 days during each year. Section 270(b) provided that a member who failed in any year "to satisfactorily perform the training duty prescribed * * * as determined by the Secretary" might be "ordered without his consent to perform additional active duty for training for not more than 45 days."

 However, at all times continued exemption from or deferment under the draft law depended on the Marine Corps' annually advising the draft board that the reservist was satisfactorily participating in the Reserve program. At about the anniversary date of a reservist's enlistment the draft board would receive a DD Form 44 from the Marine Corps Reserve Unit to the effect that the reservist was satisfactorily participating. Such a DD Form 44 was, for example, sent to plaintiff's draft board in April of 1967 with respect to his anniversary year ended the previous September 23, 1966.

 On October 15, 1966, the Congress enacted Public Law 89-687 Section 101 of which empowered the President until June 30, 1968, to order to active duty any member of the Ready Reserve of an Armed Force who, although a member of a reserve unit from a date before July 1, 1966, had not served on active duty or active duty for training for a period of 120 days or more and had not fulfilled his statutory reserve military obligation, and the Public Law also authorized the President to order to active duty any Ready Reservist who had not served on active duty for 24 months and had not fulfilled his statutory reserve obligation, and who, in the language of the statute,

 
"Is not assigned to, or participating satisfactorily in, a unit in the Selected Reserve."

 Plaintiff was a member of a Selected Reserve within the meaning of the Public Law.

 The effect of the statutes, if applicable to plaintiff, was thus to alter the liability to active service expressed in 10 U.S.C. § 270(b) by, in effect, enabling the Armed Force involved to activate the enlisted man itself rather than simply to report him as unsatisfactory or as unassociated with any unit to his draft board, leaving the Board to proceed with the processing just as if the registrant had not at any time been a Ready Reserve enlistee. The statute thus changed the nature of the exposure of the enlisted man to activation for regular duty in the Armed Forces, but it did not substantively change his liability to service except that it assured him a credit for any active duty time that he had already performed under his Reserve enlistment.

 Public Law 89-687, § 101(d) required that in order "to achieve fair treatment as between members in the Ready Reserve who are being considered for active duty under this action, appropriate consideration shall be given to (1) family responsibilities; and (2) employment necessary to maintain the national health, safety, or interest."

 The substance of Public Law 89-687 so far as it affects plaintiff was on June 30, 1967, re-enacted as 10 U.S.C. § 673a, including the provision requiring appropriate consideration for the ...


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