Kaufman and Anderson, Circuit Judges, and McLean, District Judge.*fn*
IRVING R. KAUFMAN, Circuit Judge:
As in a number of recent cases, we are confronted with the vexatious problem of delineating the proper bounds for judicial review of military decisions affecting persons in the Armed Forces Reserves. Here our task is further complicated because we are asked to decide a question that has been troublesome from the days of Samson to Sergeant Elvis Presley -- when is a soldier's hair too long? Thomas C. Smith appeals from a decision rendered October 9, 1968, by Judge Curtin of the Western District of New York, which denied, after a hearing, his petition for habeas corpus.
Smith voluntarily enlisted in the 464th Quartermaster Company, Erie, Pennsylvania, of the United States Army Reserve [hereinafter the Erie Unit] on February 18, 1964, and satisfactorily served the required four and a half months active duty beginning in April 1964. Upon his return to Erie, Smith, his musical acumen and timing evidently sharpened by months of marching in cadence, decided to play the electric guitar on a part time basis as a member of a local musical group calling itself "The Fugitives." To conform to the Fugitives' requirements Smith permitted his hair to grow somewhat longer than those at the more ancient end of the generation gap considered "normal." In addition, Smith was training as an X-ray technician.
After earning his certificate as a technician, Smith and his wife moved to Jamestown, New York in September, 1967. He then decided to devote all his time and talent to music. By November, 1967 he became associated on a full time basis with a Jamestown group calling itself the "Laffin Giraffe." The Laffin Giraffe performed in a style it termed "progessive rock," one of the hallmarks of which, the testimony reveals, is the long hair of its performers. Accordingly, Smith decided that his hair would have to be attuned to the style of the music he was playing, and thus he permitted his hair to grow on and on.
Shortly after his arrival in Jamestown, Smith sought a transfer to the Jamestown Army Reserve unit (A Company Second Battalion, 98th Regiment [hereinafter the Jamestown Unit]). He initiated this process by inquiring on the telephone of the unit's commander, Captain Vandenburg, if there was a place in the unit for him. During the conversation Smith also informed Vandenburg that he was a musician and wore his hair long. In October 1967, Smith appeared in person at the unit's headquarters to sign the required transfer papers and again raised the subject of his now flowing locks with the unit's civilian employee, Mr. Sampson [sic!].
Since the validity of Smith's five "unsatisfactory" ratings for attendance at regular meetings seems to be questioned, it is appropriate that we briefly set forth the facts in this regard. Smith appeared at his first reserve meeting with the Jamestown Unit on January 22, 1968. When Capt. Vandenburg sighted Smith's hair for the first time, he promptly informed him that his appearance was not satisfactory.*fn1 At the same time he presented Smith with a copy of the Army's Weekly Bulletin 42, dated Oct. 20, 1967*fn2 [hereinafter Bulletin 42], which, inter alia, permitted a reservist to wear his hair long if it was necessary to his occupation. Vandenburg informed Smith that a letter from the manager of his group would be sufficient proof of occupational necessity. In any event, because of derisive comments about his hair from other members of the unit, Smith decided to leave before the regular periodic training meeting was officially terminated. Accordingly his performance was marked unsatisfactory and he did not receive credit for attending the meeting.
Smith did not attend his regularly scheduled second unit meeting because weather and transportation problems left him stranded in Detroit after a performance by the Laffin Giraffe. Mrs. Smith, however, notified Captain Vandenburg of this and he agreed to mark this absence as "excused." Smith failed to make up this absence as required by regulations, and it appears that because this meeting was considered "special" he was given two unsatisfactory performance marks.*fn3
At the third meeting Smith presented to Mr. Sampson a letter from Scott Saylor, the personal manager of the Laffin Giraffe aggregation, stating that Smith's job required his hair to be worn long because "the hair collectively represents the style of the group and portrays an image to the public." Despite this letter, Captain Vandenburg ordered Smith to go home and have his hair cut,*fn4 informing him that he must either do so or leave the program. This occasion was marked as Smith's fourth unsatisfactory performance.*fn5
Vandenburg made one effort, as he put it at the hearing, to "verify" Mr. Saylor's letter, although nothing on the face of Bulletin 42 required verification. Thus, he made a single telephone call one evening to the radio station which employed Saylor as a disc jockey. He spoke to an unidentified person who told Vandenburg that he did not know either Smith or Saylor. Captain Vandenburg thereupon concluded that since the letter was not "verified" it was not sufficient "proof" to justify Smith's hirsute condition within the scope of Bulletin 42. The captain, however, failed to put the letter in Smith's permanent file (his "201" file). Instead, and contrary to the requirements of Bulletin 42 ("this must be proved by the individual concerned, and made a part of his record."), Vandenburg tucked the letter away in his own desk drawer. Thus, if Smith had attempted to appeal Vandenburg's decision the letter would not have been part of the record on review.
Smith did not attend the next scheduled meeting of the unit, he claims because of Vandenburg's ultimatum that he either have his hair cut or get out of the program. This was his fifth and final unsatisfactory performance. Pursuant to 10 U.S.C. § 673a and the applicable regulations five unsatisfactory performances rendered a reservist liable to be called up for active duty for a period not to exceed a total of twenty-four months.*fn6 It is not disputed that if Smith's conduct was properly marked unsatisfactory the Army could call him for immediate active duty under § 673a.
In March 1968 Smith and his wife met with Vandenburg. Vandenburg admitted that he advised the Smiths that there was no recourse whatsoever from the impending active duty order. Thus, Smith pursued no other administrative remedies available to him by Army regulations until he was actually ordered to report for a period of one year, six months, and fourteen days active duty. At that time he brought this petition for habeas corpus, seeking his discharge from active duty and restoration to reserve status. The order to report was stayed by this Court pending the outcome of this litigation.
Our decision in this matter requires us to consider several related and complex questions: What actions by the military may this court review? Are the actions of which Smith complains within the scope of that review? If so, and if relief is justified, under what rubric may relief be granted and what form should it take?
Our recent decisions make clear that purely discretionary decisions by military officials which are within their valid jurisdiction will not be reviewed by this court. United States ex rel. Schonbrun v. Commanding Officer, Armed Forces, 403 F.2d 371 (2d Cir. 1968). See Fox v. Brown, 402 F.2d 837 (2d Cir. 1968); Winters v. ...