Appeal from an Order of the United States District Court for the Eastern District of New York, John R. Bartels, Judge, denying petition to enjoin respondents from ordering petitioner to active duty as an unsatisfactory reservist and granting summary judgment to respondents.
Lumbard and Hays, Circuit Judges, Jameson, District Judge.*fn*
Appellant Rohe brought this action for injunction and other relief claiming that the procedure by which he was ordered to active duty as an unsatisfactory reservist was improper because in appealing the order under Army Regulation 135-91 para. 20, he was not informed of or permitted to answer adverse factual allegations placed in his file. The district court held that the regulation did not require the Army to show the comments to appellant. The court denied Rohe's request for injunctive relief and granted the government's motion for summary judgment. 368 F. Supp. 114 (E.D.N.Y. 1973). We reverse.
On June 26, 1971, appellant, a member of the United States Army National Guard, failed to report as ordered to annual summer training. He had notified his unit of his illness, but was told that he would have to report to summer camp and be examined by a military doctor there. Appellant claims that he was on sick report on June 26 in his regular job as a New York City policeman and that under departmental regulations he was forbidden to leave home. Appellant later submitted a memorandum from a police surgeon stating that appellant was ill and confined to home on June 26 and 27.
After the unit returned from summer camp Rohe met with Major Curran, the Assistant Inspector General, who subsequently recommended to the unit commander that Rohe be permitted to attend summer camp with another unit rather than being ordered to active duty. The unit commander rejected this recommendation and on September 15, 1971, Rohe was officially notified that active duty orders would be issued for him in about 30 days and that if he so desired he could appeal the decision within 15 days.
On September 22 Rohe filed his appeal. On September 28 Rohe was notified that his appeal had been received and would be forwarded to the unit commander for comments and recommendations and that upon receipt thereof "this office will advise you concerning the status of your appeal." The unit commander recommended denial of the appeal. On October 21, 1971, the Assistant Adjutant General directed the unit commander to "respond to [Rohe's] allegations on a point by point basis." On October 28 the unit commander responded, reiterating his disapproval of the appeal and stating reasons for his view.
On November 3 the Assistant Adjutant General returned the matter to the unit commander again for clarification and explanation of the allegations that Rohe had not talked to the police surgeon but to a policeman from the medical unit and that he had been returned to duty by the police surgeon on the morning of June 27.
On December 1, 1971, the Assistant Adjutant General once more returned the matter to the unit commander. He requested signed statements from the police surgeon and the sergeant of the police medical unit concerning the facts of Rohe's illness. He also requested an explanation from the unit commander concerning Rohe's history of illness, which had caused the unit commander to excuse Rohe from 19 drills in the six months preceding summer camp. On January 15, 1972, the unit commander replied to these requests. He also included statements by the battalion surgeon and the unit's first sergeant. Both statements claimed that, on questioning, Rohe admitted that he was not on sick leave but on vacation and that when asked to produce the letter from the police surgeon concerning a purported examination scheduled for June 28 he flushed the letter down the toilet.
On March 21, 1972, the convening authority, with one member dissenting, approved the recommendation that appellant be ordered to active duty.
Rohe claims, and the government does not deny, that after the letter of September 28 he never received notice of the Assistant Adjutant General's requests for further materials or of the responses of the unit commander.*fn1 Rohe specifically denies several of the factual allegations contained in these materials. The repeated requests by the Assistant Adjutant General for these materials show, he contends, that the materials were crucial to the denial of his appeal. He feels there might have been a different result if he had had any opportunity to rebut them.
Army Regulation 135-91 para. 20,*fn2 provides for appeals of involuntary orders of reservists to active duty. The regulation does not explicitly require that the appellant be informed of adverse allegations placed in his record. Rohe argues that such a right is necessary to enable him to ...