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December 12, 1973

John T. ROHE, Petitioner,
Robert F. FROEHLKE, Secretary of the Army, and Commanding General, First United States Army, Ft. George Meade, Md., Respondents

Bartels, District Judge.

The opinion of the court was delivered by: BARTELS

BARTELS, District Judge.

Petitioner, John T. Rohe, applies for a preliminary and permanent injunction and a writ of mandamus directing the above respondents to cancel petitioner's order to active duty as an unsatisfactory reservist, and to cancel warrants outstanding against him for failure to obey orders to active duty. On June 22, 1973, the Court stayed the removal of Rohe from the jurisdiction of the Eastern and Southern Districts of New York, released him from the physical custody of the respondents and returned him to duty as a New York City policeman until the determination of this action. No answer has been filed but, instead, the Government has moved for summary judgment pursuant to Rule 56(b), F.R. Civ. P., which Rohe opposes.

 Rohe, a New York City policeman, enlisted in the New York Army National Guard on November 9, 1967, for a term of six years, and thereby became a member of the Army National Guard of the United States. On March 31, 1972, he was ordered to active duty for 19 months and 4 days, to begin April 17, 1972, for unsatisfactory participation in his Army Reserve Unit, consisting of failure to attend summer camp beginning June 26, 1971, to which he was commanded. He attempted to excuse his failure to appear upon the claim that he notified his unit prior to summer camp that he was ill; that he had a police department medical examination scheduled for June 28, 1971, and that he was on sick report from the police department on June 26, 1971, pursuant to whose regulations he could not leave his residence. The diagnosis was gastroenteritis, i.e., inflammation of the stomach and intestines. Rohe was interviewed by the Battalion Surgeon on the last drill prior to summer camp, who informed him that he was not too sick to refuse to attend summer camp as required by AR 135-91(5, d.(3)), and that he would be fully examined at Camp Drum. The reason for this examination would be to determine if a medical discharge was warranted, considering Rohe's long record of excused absence from drills for illness. When Rohe's reserve unit was mustered for summer camp on June 26, 1971 and he failed to appear, the clerk of the reserve unit informed Rohe that he could only be excused on the ground of sickness if he were so excused by the Battalion Commander. The records of the police department indicate that Rohe reported on a weekend sick report at his precinct at 9:20 A.M. on June 26, 1971, was signed out at 10:15 A.M. and on June 27, 1971 was examined by a Police Surgeon and returned to full duty on the same day. On June 28, 1971, Rohe was notified by his commander that he was being carried on AWOL status and should report to the unit, but Rohe failed to report to his unit at summer camp and went from AWOL status to deserter status.

 On September 15, 1971, Rohe was officially informed by letter that active duty orders had been requested from the unit commander; that he could file his appeal to the Appeal Board within fifteen days, and that his unit commander would explain the proper filing procedure if he so desired. On September 22, 1971, without seeking advice from his unit but with advice of Legal Aid police counsel, Rohe filed his appeal, which in nineteen paragraphs he attempted to explain his position that he was on sick report by the police department for June 26, 1971, and consequently had a valid reason for not proceeding to camp. Attached to such petition was a document with a notation by Dr. Leonard Fox, Police Surgeon, stating that the petitioner was confined to home for medical reasons on June 26th and 27th. *fn1" However, Rohe did not mention in that petition that he had been ordered to report to his unit on June 28, 1971, nor the fact that according to the letter of the Commanding Officer of the Medical Section of the Police Department, the records of that Section indicated that he was returned to full police duty on June 27, 1971, nor the fact that at no time did he make an effort to communicate with his unit while it was at camp. Instead, he stated in his letter of appeal, paragraph 11th: "On July 11 my unit returned from summer camp. By that time I had seen my police department surgeon and had been ordered back to duty."

 On September 28, 1971, Assistant Adjutant General notified Rohe that his appeal had been received and would be forwarded to his Commanding Officer for comments and recommendations, and that upon receipt of the unit commander's recommendation, "this office will advise you concerning the status of your appeal." Captain DiTullio, the Unit Commander, recommended denial of Rohe's appeal, rejecting, as was his right, an alternative recommendation by the Inspector General that Rohe be permitted to fulfill his obligation by equivalent summer camp training with another unit. On October 21, 1971, the Adjutant General, as a part of the appellate procedure, required the Company Commander to respond to Rohe's allegations on a point-by-point basis. *fn2" On January 15, 1972, the Company Commander made such a response to the Appeal Board, and in that connection the statements of Battalion Surgeon Petrillo and of First Sergeant Santagata, as well as the letter from the police department, were submitted. In both of these statements Petrillo and Santagata claimed that Rohe admitted he was not sick at the time but was on vacation and that he had flushed a letter from the police department regarding his police medical examination down the toilet. The Appeal Board denied Rohe's claim and ordered him to active duty. It is from this decision that Rohe seeks redress, claiming that he had no knowledge of the Petrillo and Santagata statements which the Unit Commander had forwarded to the Appeal Board and inserted into the file, and consequently had no opportunity to refute them on appeal. Accordingly, petitioner claims that the appeal procedure did not conform to Army Regulation 135-91, para. 20, and to the requirements of due process inasmuch as he was not afforded a meaningful and effective appeal.


 Army Regulation 135-91(11) specifically provides that a member of the Army Ready Reserve who fails to participate satisfactorily to attend or complete annual training will be ordered to active duty for a period which, when added to his prior service for a full-time training duty, will total twenty-four months. Before requesting that such a member be ordered to active duty, the unit commander must determine under Army Regulation 135-91(11) (b) "if the member was notified in sufficient time to comply, and whether or not emergency or cogent reasons existed for his absence." Upon determination that these conditions have been satisfied, the commander must reduce to grade E-2 a member in grade E-3, and thereupon he must forward a request to the appropriate area commander that the member be ordered to active duty. Thereafter the unit commander must immediately notify the member of the action taken, and advise him that he will be required to enter active duty in or about thirty days after such notification.

 A member who has been denied a requested delay of an order to active duty may appeal within fifteen days of the receipt of such denial. In such an appeal he is required to explain those facts pertinent to his case which he feels were not fully considered, and he may submit any additional evidence which he wishes to present. Paragraph 20, b. of the above regulations provides that appeal should be submitted through the unit commander, who in this case was Captain DiTullio, to the commander having authority to approve discharges or delays, who in this case was the New York State Adjutant General. Paragraph 20, c. provides that the State Adjutant General as approving authority may approve the delay. But when a denial of an appeal is "indicated" he must forward the appeal, records, and his recommendations to the United States Army Reserve Components Personnel and Administration Center at Fort Benjamin Harrison, Indiana. Para. 20,c.(2) (a). In accordance with para. 20,e. the commanding officer at Fort Benjamin Harrison must convene an appeal board which gives the commanding officer its recommendations. There is no requirement that the unit commander's recommendations or the State Adjutant General's recommendations, which are based on the unit commander's recommendations, be forwarded to the reservist who appeals. In AR 135-91(20,e.) it is specifically provided that in processing the appeal the provisions of AR 15-6 "will not be applicable to such proceedings." AR 15-6, referring to the procedure to be utilized in investigations recommending adverse personnel action, specifically reads in part as follows:

". . . the individual who is the subject of the investigation will be provided an opportunity to review all relevant material in the file, subject to security standards and questions of privilege, including the major commander's proposed recommendation for action to the Secretary. The individual will be permitted to rebut any adverse evidence and to submit any statement or relevant evidence that he desires."

 Thus, the right to review all relevant material in the file and to rebut adverse evidence is by express implication specifically excluded under an appeal taken pursuant to AR 135-91(20,e.). However, Army regulations do provide for access and review of personnel records by the individual concerned or his authorized representative, CFR § 518.15(c), and further, that copies of Army records will be made available upon proper request if the record requested is described with sufficient particularity "to enable the Department of the Army to locate the record with a reasonable amount of effort." CFR § 518.5(a). *fn3"


 It appears to be well settled that courts will not attempt to review purely discretionary decisions of military officials within their jurisdiction (see Smith v. Resor, 406 F.2d 141 (2d Cir. 1969).) They will, however, determine whether the military has complied with their own regulations in reaching such discretionary decisions. Hammond v. Lenfest, 398 F.2d 705, 710 (2d Cir. 1968). Nevertheless, they have in this context consistently rejected the suggestion that they, in effect, rewrite the military's internal procedures in order to meet the claims of a particular individual. Only in extraordinary circumstances will they inject themselves into the internal operations of the military. O'Mara v. Zebrowski, 447 F.2d 1085 (3d Cir. 1971). Accordingly, courts have held that the rights of a reservist involuntarily called to active duty for unexcused absences are adequately protected by a military regulation providing for a written appeal without a hearing. Ansted v. Resor, 437 F.2d 1020 (7th Cir. 1971); Hagopian v. Knowlton, 470 F.2d 201, 208 (2d Cir. 1972).

 Here, Rohe had full knowledge of the requirements which must be satisfied in order to be excused for sickness or for any other reason. Indeed, on February 4, 1969, he signed an orientation statement, which he acknowledged he understood and in which it was specifically stated:

"You are required to attend all periods of duty, unless specifically excused prior to the performance of such duty by your unit commander. Excuse from duty will be confined to exceptional cases only, such as sickness, injury, emergency or other circumstances beyond your control. All such instances require substantiation by appropriate affidavits or certificates by a medical officer. Employment conflicts, overtime, ...

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