Appeal from dismissal of petition for writs of habeas corpus and mandamus in the United States District Court for the District of Vermont, Albert W. Coffrin, Judge, for relief from Army's order compelling AWOL National Guardsman to report to active duty. Held, an AWOL National Guardsman who has not submitted to the Army's evaluation procedure for discharge processing has no standing to present claim for relief under discharge regulation.
Smith, Anderson and Oakes, Circuit Judges.
This appeal is from the dismissal of a writ seeking relief against an order compelling a National Guardsman to report to active army duty. It involves the question whether the courts may review the refusal of the Army to discharge a person on the basis of his claim to be "unfit" to be a soldier when he is absent without leave. More precisely, the question sought to be raised is whether Army Regulation 635-212 (AR 635-212) governing discharge of persons "unfit" or "unsuitable" for military service*fn1 requires that, once a unit commander determines that an individual should be processed for separation under the regulation and requests a "medical and mental status evaluation," the Army must discharge the individual even though he is absent without leave and hence unavailable for the required evaluation. While the answer is plainly negative, as the United States District Court for the District of Vermont, Albert W. Coffrin, Judge, found,*fn2 we find that appellant has no standing at the present time to present the issues of jurisdiction and reviewability for his discharge claim under AR 635-212.
In December, 1971, appellant voluntarily enlisted in the Vermont National Guard for a term of six years. The enlistment entailed six months of active duty and in May, 1972, Baldwin was sent to Fort Leonard Wood, Missouri, to fulfill that obligation. On June 8, 1972, he went AWOL from Fort Leonard Wood. While absent he obtained medical advice which recommended that he be separated from military service. He voluntarily returned to Fort Leonard Wood in July and sought a discharge with the aid of letters from his civilian doctors. Apparently his unit commander requested a psychiatric evaluation under AR 635-212, but in August, before the evaluation process was completed, Baldwin again went AWOL and returned to Vermont. While he was AWOL, he was reassigned to the Vermont Army National Guard and processed, pursuant to AR 135-91, P11.1b,*fn3 as an unsatisfactory participant in the Reserve Enlistment Program and was given orders to report to Fort Dix, New Jersey, on December 11, 1972, for 22 months and 10 days of active duty. He filed a petition for writs of habeas corpus and mandamus on December 8, 1972, and was on that day granted a temporary order by Judge Coffrin restraining appellees from asserting control over him until his case was decided.
The case might be thought paradoxical in that appellant's conduct alone is an indication that he is unfit to be in the service, so that a casual observer would suppose that the Army would want him out, or at least, not want him in.*fn4 To this end the court took the somewhat unusual though not unique position at argument of suggesting that the case might be disposed of by an agreement under which the appellant would report for active duty and the Army would discharge him as unfit. But this proved impossible because the Army has not yet decided - and perhaps cannot decide until it has appellant back in its custody and control - exactly what it wants to do with him.*fn5 The Army's position in this regard is understandable; a person who is AWOL as appellant is*fn6 cannot, according to the terms of AR 635-212, be "processed" for release. The separation processing under this regulation requires a physical examination and mental status evaluation of the appellant by Army personnel.*fn7 By his absence, the appellant has precluded the Army from exercising its authority over him, most particularly, from carrying out the evaluation as required in the exercise of its authority to discharge him under AR 635-212.
So saying, we have answered the specific question at issue. Appellant cannot be heard to assert a claim for relief since a person who has put himself beyond the reach of the administrative authorities cannot be permitted to contest the failure of those authorities to follow their regulations involving an evaluation of his conduct. This is especially true here where compliance with the regulations at issue requires the presence of the individual who has absented himself. The appellant must be estopped from asserting the Army's failure to discharge him in compliance with AR 635-212, at least until he has appeared, as the Army requests, for examinations pursuant to its determination of his fitness to serve. This result is no different from the requirement of an exhaustion of the administrative process*fn8 or from cases holding that a defendant who has not subjected himself to the jurisdiction of the court is not entitled to assert a plea in bar. See United States v. Weinstein, 511 F.2d 622, 628 (2d Cir. 1975) (dicta).
In this posture of the case we need not answer the complex of questions presented to us in the briefs - whether a soldier has standing to claim a violation of AR 635-212 or whether that regulation is solely for the benefit of the Army, see Allgood v. Kenan, 470 F.2d 1071, 1073-74 (9th Cir. 1972); Silverthorne v. Laird, 460 F.2d 1175, 1186 (5th Cir. 1972); whether the district court has any jurisdiction to enforce the regulation if it is solely for the benefit of the Army (Judge Coffrin held with Allgood and Silverthorne that he did not, but see Patterson v. Stancliff, 330 F. Supp. 110 (D. Vt. 1971)); whether there is jurisdiction to order the armed services to obey the regulation if it were developed for the protection of servicemen, see Naskiewicz v. Lawver, 456 F.2d 1166 (2d Cir. 1972); United States ex rel. Donham v. Resor, 436 F.2d 751 (2d Cir. 1971); United States ex rel. Joy v. Resor, 342 F. Supp. 70 (D. Vt. 1972); or whether a claim for relief under AR 635-212 may ever be stated. These questions may be simply different ways of stating the central substantive issue here which, given appellant's conduct, we find we cannot reach at this time.