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FOX v. BROWN

June 28, 1968

Thomas F. FOX, Petitioner,
v.
Harold BROWN, Secretary of the United States Air Force, and A.C. O'Hara, Major General Nyarng, Chief of Staff to the Governor of New York, Respondents



The opinion of the court was delivered by: POLLACK

POLLACK, District Judge.

 The petitioner enlisted in August 1962, in the State and U.S. Air National Guards for six years and is lawfully subject to the jurisdiction of the military.

 The order activating petitioner was regularly made by a military official within his jurisdiction and his is a discretionary determination. Petitioner was duly alerted for active duty in October, 1967 and his order to active duty was made on May 29, 1968, more than a reasonable time having thus been allowed. He was given a hearing pursuant to 10 U.S.C. § 673a(c). His complaints of wrongs are redressable within the military, not in Court. 10 U.S.C. § 939 et seq. The claim to separation on the ground of hardship failed to meet the standards of Public Law 89-687, 80 Stat. 980 later codified as 10 U.S.C. § 673a or the implementing Executive Orders 11327 and 11366 of the President. Any claim that he is being activated for an excessive period is to be raised while on active duty.

 The petitioner's contentions do not state facts sufficient to invoke this Court's jurisdiction and the allegations are mere argument and conclusions of law or of the petitioner. The motion is denied in all respects. See also, Winters v. United States, 281 F. Supp. 289 (E.D.N.Y.), aff'd. 390 F.2d 879 (2 Cir. 1968).

 So ordered.

 OPINION ON REARGUMENT

 The petitioner moves for reargument of a motion which was denied and which sought to cancel and annul an Extended Active Duty Order which directed petitioner to report for 18 months, 5 days' active duty at Cannon Air Force Base, Clovis, New Mexico. The ground for reargument is that the petitioner failed to bring to the Court's attention the ruling in Gion v. McNamara, decided on January 9, 1968 by Judge Crary in the District Court for the Central District of California, Civil Action No. 67-1563-EC (not reported).

 On August 7, 1962 petitioner voluntarily enlisted for six years in the New York Air National Guard and the Air National Guard of the U.S. His enlistment record specified that "I have been advised of the six years service obligation I have acquired under the provisions of 10 USC 651". Petitioner served 131 days' active duty for training in 1962. Thereafter in 1965, following his repeated unexcused absence from required drills, he was ordered, pursuant to 10 U.S.C. § 270(c) to 45 days' active duty.

 Petitioner's wilful absence from drills continued following this order. Finally, on October 18, 1967, he was advised by his Commanding Officer that he had been recommended to be ordered to active duty as a result of his unsatisfactory participation in drills, pursuant to Public Law 89-687, 80 Stat. 980, which in pertinent part provides:

 
"(a) Notwithstanding any other provision of law, until June 30, 1968, the President may order to active duty any member of the Ready Reserve of an Armed Force who -
 
(1) is not assigned to, or participating satisfactorily in, a unit in the Selected Reserve, * * *."

 Petitioner objected to this order and was afforded a hearing before the Staff Judge Advocate of the New York Air National Guard at which he was represented throughout by civilian counsel of his choice as well as an assigned military counsel of his choice. His attendance at drills was revealed to be substantially below the 90% attendance level mandated for reservists by Air Force directives.

 The Staff Judge Advocate recommended that the petitioner be ordered to active duty in view of the findings made following the hearing. This recommendation was adopted and was followed by an order of the United States Air Force relieving petitioner from duty in the New York Air National Guard and placing him on duty with the United States Air Force as a member of the Ready Reserve in his status as a member of the Air National Guard of the United States. This order took effect and petitioner assumed such duty status as of June 25, 1968, and was ordered to report to Cannon Air Force Base as of July 1, 1968. The petitioner has not complied with this order and has disregarded it against the advice of his counsel.

 The petitioner moved by Order to Show Cause made on June 24, 1968 returnable before this Court on June 27, 1968 for an order cancelling and annulling the Extended Active Duty Order herein and discharging the petitioner from the New York Air National Guard. Following the argument of the motion the Court filed an opinion denying the motion in all respects and stating that "the petitioner's contentions do not state facts sufficient to invoke this Court's jurisdiction and the allegations are mere argument and conclusions of law or of the petitioner". ...


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