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UNITED STATES EX REL. GASTON v. CASSIDY

March 4, 1969

UNITED STATES of America ex rel. Gerald R. GASTON, Relator,
v.
Colonel John A. CASSIDY, Commanding Officer, Ft. Hamilton, Brooklyn, New York, Respondent



The opinion of the court was delivered by: ZAVATT

ZAVATT, Chief Judge.

 This is a petition for a writ of habeas corpus by a member of the armed forces who was inducted on December 10, 1965. He contends that he has served more than the twenty-four consecutive months for which he was inducted pursuant to the Selective Service Act, 50 U.S.C. App. § 454(b), *fn1" and that the extension of that period of service by the Army, pursuant to 10 U.S.C. § 972, *fn2" is invalid. After a hearing on the allegations of the petition, the petition is denied.

 After petitioner was inducted, he was ordered to Fort Knox, Kentucky, where he remained until February 1, 1966, when he was ordered to report to Fort Sill, Oklahoma. While at Fort Sill, and in June of 1966, he was court-martialed for soldiering on the job and urinating from a fire escape and sentenced to three months in the stockade. After serving that sentence he was released back to duty at Fort Sill.

 By orders dated September 29, 1966, he was ordered to report on October 4, 1966 to the Overseas Replacement Station at Fort Dix, New Jersey, for assignment to overseas duty in Germany. The petitioner contends that he obeyed said orders; that he arrived at McGuire Air Force Base, adjoining Fort Dix, on October 4, 1966; that his name was not called at the roll call there that day; that he was taken to Fort Dix the same day and that his name was not called during a roll call there that day; that his name was not called during a roll call at Fort Dix the following day, October 5, 1966. He testified that he mentioned these roll calls to a sergeant (not named or otherwise identified by petitioner) on October 6th; that, later that day, the sergeant returned and asked petitioner for his 201 (personnel) file; that he told the sergeant that he did not have his 201 file, although it is customary for a solider to receive it from his transferor base when ordered to report to another duty station; that the reason he did not have that file was due to the fact that it is not the practice of a transferor station to give the 201 file to a soldier who has been court-martialed. No proof of this alleged practice was offered at the hearing. Petitioner testified further that this unnamed, unidentified sergeant told him to go home (27129 Pennsylvania Avenue, Inkster, Michigan) and to remain there until Fort Dix notified him that it had received his 201 file. Petitioner admitted that he did not receive any written authorization to leave the base. Major James Rekowski, the Commanding Officer of the Special Processing Detachment (SPD) testified that only the Commanding Officer of the Overseas Replacement Station has authority to permit one to leave that duty station; that such permission is granted only in written form. Petitioner claims that these are the circumstances under which he left Fort Dix on October 6, 1966, went home to Michigan and absented himself from his duty station for nineteen months, i.e., from October 6, 1966 until he returned to his duty station on May 5, 1968.

 He testified that he did not return to Fort Dix until after he had determined, according to his calculations, that his twenty-four months of service had expired, assuming that that period had been properly extended because of his court-martial sentence. When he "returned" to Fort Dix, he demanded his discharge. The following day he received a military police escort by a confinement officer. On May 7, 1968, he was confined in the post stockade where he remained for fifteen days.

 It is a responsibility of SPD to receive personnel who have been absent from the Army without leave; to investigate their whereabouts and to determine the number of days of their unauthorized absence. Major Rekowski, the Commanding Officer, directed Sergeant Tucker on May 22, 1968 to investigate petitioner's absence from October 1966 to May 1968. Tucker interviewed petitioner who told him substantially the same story he testified to at the hearing. Tucker checked various Army records, including those at Fort Dix. He found no record of petitioner ever having been at Fort Dix prior to his arrival in May 1968 and no record of petitioner ever having joined his unit in Germany. Based on Tucker's report and in late September 1968, Major Rekowski determined that petitioner had been absent without leave for 579 days between October 4, 1966 and May 4, 1968 and that the period of petitioner's required military service be extended to July 9, 1969. He directed Sergeant Tucker to note these 579 days of unauthorized absence in petitioner's "reconstructed" 201 file and to note therein that petitioner's ETS (Estimated Termination of Service) was extended to July 9, 1969. These directions were followed. Having observed the petitioner and heard his story as well as the testimony of the Army personnel, I find petitioner's version unworthy of belief. I find that he never reported to Fort Dix from Fort Sill; that he did not report to Fort Dix until May 5, 1968; that he failed to obey the orders he received at Fort Sill to report to Fort Dix; that he did not appear at Fort Dix until he thought that his required period of military service had expired.

 Petitioner remained at Fort Dix, New Jersey, until November 11, 1968 when he was transferred to Fort Hancock, New Jersey. Before he was so transferred, he was assigned to duty as a clerk under Sergeant Tucker at SPD, because the unit to which he had been assigned for transfer from Fort Dix to Germany had already departed for Germany. On November 13, 1968, he was transferred from Fort Hancock to Fort Hamilton, Brooklyn, New York, where he is presently stationed. It was after this transfer that he petitioned this court for a writ of habeas corpus.

 Petitioner does not contend that Major Rekowski's determination to extend his ETS was not supported by the evidence. That determination if made by a competent military authority, would not be reviewable by this court. Smith v. Resor, 406 F.2d 141 (2d Cir. 1969); United States ex rel. Schonbrun v. Commanding Officer, Armed Forces, 403 F.2d 371 (2d Cir. 1968); Fox v. Brown, 402 F.2d 837 (2d Cir. 1968); Winters v. United States, 281 F. Supp. 289 (E.D.N.Y.), aff'd mem., 390 F.2d 879 (2d Cir. 1968). This court does have jurisdiction, however, to review the question as to whether it was made in excess of military authority or in violation of Army regulations. Smith v. Resor, supra.

 Competent Authority

 Petitioner contends that no one within the Army establishment may extend his twenty-four months of service because neither 10 U.S.C. § 972 (see note 2) nor any Army Regulation defines "competent authority." The court construes "competent authority" in 10 U.S.C. § 972 to mean competent authority under applicable Army Regulations even though they do not specifically define that term in haec verba.

 Army Regulation, AR 630-10, para. 51 provides:

 
"Orders assigning absentees returning to military control * * * will be published as prescribed below. * * *
 
b. * * * An absentee who has not been dropped from the rolls of his organization as a deserter prior to his return to military control * * * may be reassigned to an organization other than the ...

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