Waterman, Moore and Friendly, Circuit Judges.
Plaintiff-appellant, Harold Raderman instituted this action against defendants-appellees, Major General J. W. Kaine, Commanding General, 77th United States Army Reserve Command and Captain William Stanners, Commanding Officer, 146th General Support Company, whereby he sought permanently to enjoin them from enforcing certain statutes and a directive issued as of July 1, 1968 which might result in plaintiff being certified to his Selective Service Board for immediate induction into the Armed Services. He also requested the convocation of a three-judge court to rule upon alleged constitutional issues. The defendants moved for an order dismissing the complaint or alternatively for summary judgment in their favor. The district court granted the motion for summary judgment, dismissing the complaint and plaintiff appeals from that order.
The facts are to be found in the complaint and affidavits to which correspondence between plaintiff and the Army, plaintiff's employer and the Army and an inter-departmental memorandum are annexed. The controversy is based upon the length of plaintiff's hair, particularly during the period from July 15, 1968 to the present time.
Some six years ago plaintiff enlisted in the Army and, instead of the two-year period of continuous service, elected to enlist in the Reserves for six years, six months of which were to be active duty, the balance by regular attendance at drills (two days a month) and by two weeks' annual summer camp training. He finished his active duty assignment on February 20, 1964, and was eventually assigned to the 146th General Support Company. Shortly thereafter plaintiff obtained employment with a theatrical agency and in 1965 became an agent for "rock and roll" bands. Because of this position plaintiff claims that he "has worn his hair longer than conventional length" (Compl. par. 8). Until July 1, 1968 an Army directive gave individuals "the right to retain long hair" if it contributed "to the individual's civilian livlihood." (Weekly Bulletin 42, October 20, 1967).
Subsequently this directive was superseded by the directive of July 1, 1968 which "prohibited reservists from wearing their hair as long as that then and still being worn by plaintiff." (Compl. par. 11). During his summer training period in July 1968 plaintiff was ordered to conform to the new directive and refused to comply. The penalty was a fine of some $20 but an additional and more serious consequence was the denial of credit for attendance at drills. Again on August 10, 1968 plaintiff was advised by defendant Stanners that unless he wore his hair at a conventional length he would not receive credit for attendance and that because of such defaults he would be inducted into military service for approximately fifteen months' active duty. Thereafter plaintiff wrote to Vice-President Humphrey and Congressman Ryan. These letters and others were unproductive of results favorable to plaintiff and on September 12, 1968 plaintiff was advised by a Major General of the Army that "Army regulations require that haircuts be well groomed, cut short or medium length, and trimmed at all times. Exceptions will not be made to this policy." A subsequent letter from plaintiff's employer to the Major General indicated that if plaintiff cut his hair his value to them "would be sharply curtailed."
At this time plaintiff had accumulated thirteen unexcused absences from drills. Some absences he disputes but if his absences, resulting from no credit because of his unkempt appearance, are counted, they exceed the allowable number.
The district court relied upon this court's recent decision in Smith v. Resor, 406 F.2d 141, in which the court said: "Further, the decision as to what constitutes the correct appearance of reservists is, absent extraordinary circumstances not present here, within the jurisdiction of the Army."
Plaintiff summons to his aid seven of the first ten amendments to the Constitution, probably on the theory that with seven pegs on the board his broadly hurled arguments might attach themselves to one. But such reliance points to the fallacy of plaintiff's position. If he asks: Does being in the Army curtail or suspend certain Constitutional rights?, the answer is unqualifiedly "yes". Of necessity, he is forced to surrender many important rights. He arises unwillingly at an unreasonable hour at the sound of a bugle unreasonably loud. From that moment on, his freedom of choice and will ceases to exist. He acts at the command of some person -- not a representative of his own choice -- who gives commands to him which he does not like to obey. He is assigned to a squad and forced to associate with companions not of his selection and frequently the chores which he may be ordered to perform are of a most menial nature. Yet the armed services, their officers and their manner of discipline do serve an essential function in safeguarding the country. The need for discipline, with the attendant impairment of certain rights, is an important factor in fully discharging that duty.
In listing all his constitutional impairments plaintiff forgets that it is the Constitution which authorizes the creation of an Army. Plaintiff's and his fellow citizens' duly elected representatives enacted the draft legislation. He knew that he could fulfill his military obligations by enlisting in the Army for two or for six years. It is the same Army -- only the period of service differs. Plaintiff concedes that, had he elected the two-year period, he would have had to conform to Army Regulations including the length of his hair. However, plaintiff chose the six-year enlistment undoubtedly because it offered certain inducements. Not the least of these inducements was probably the ability to carry on various civilian activities and to avoid the raucous sounds of daily bugles and the regimented day thereafter -- or even possibly foreign service. But these civilian activities were permissive, they were not constitutional rights. Plaintiff was still in the Army and subject to Army discipline. He was not a free agent. Nor could he ignore his Army enlistment. For six years he, by his own choice, imposed restrictions upon his activities and his appearance. For various reasons, the Army decided (not subject to federal court review unless the courts take over the functions of the General Staff) that the equivalent of two years' intensive service was six months, followed by five and one-half years of bi-weekly drills and summer camp training.
Plaintiff now asks that an exception as to appearance be made in his case. The Army has advised him that such an exception cannot be made. Such a decision is within the exclusive jurisdiction of the Army.
How have the courts handled such requests for special treatment under allegedly special circumstances?
First it is necessary to set out the statutory and regulatory framework underlying the present action. Section 673a of Title 10 authorizes the President to order to active duty any member of the Ready Reserve who is "not participating satisfactorily" in his reserve duties. Members of reserve units are exempt from induction under 50 U.S.C. App. § 456 only "so long as they continue to be such members and satisfactorily participate in scheduled drills and training periods as prescribed by ...