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UNITED STATES EX REL. ROMAN v. SCHLESINGER

November 26, 1975

UNITED STATES OF AMERICA ex rel. RICHARD LOUIS ROMAN, Petitioner,
v.
JAMES R. SCHLESINGER, Secretary of Defense, JOHN W. WARNER, Secretary of the Navy; THE COMMANDANT OF THE THIRD NAVAL DISTRICT; and CHIEF OF NAVAL PERSONNEL, Respondents



The opinion of the court was delivered by: NEAHER

MEMORANDUM OF DECISION

 NEAHER, District Judge.

 Petitioner, a Navy sonar technician, is again before the court seeking a writ of habeas corpus, 28 U.S.C. § 2241, compelling the Navy to release him from further obligation under a two-year enlistment extension agreement he signed in 1971. He claims that the Navy failed to give him the agreed quid pro quo which induced his consent to the two-year extension, i.e., an assignment to "computer school", and he is, therefore, being unlawfully held in the Navy. Parisi v. Davidson, 405 U.S. 34, 31 L. Ed. 2d 17, 92 S. Ct. 815 (1972); United States ex rel. Schonbrun v. Commanding Officer, 403 F.2d 371, 373 (2 Cir. 1968), cert. denied, 394 U.S. 929, 22 L. Ed. 2d 460, 89 S. Ct. 1195 (1969).

 The parties were before the court earlier this year when petitioner sought the same relief he requests now. At that time, after holding an evidentiary hearing at which petitioner and several naval personnel testified concerning the substantive claims raised, the court treated petitioner's application as one seeking mandamus relief and deferred further consideration of the matter until petitioner exhausted his administrative remedies within the Navy. Memorandum of Decision, April 21, 1975.

 Petitioner did pursue available remedies within the Navy and his request for cancellation of his contract was finally denied by the Chief of Naval Personnel on July 2, 1975. That same day, petitioner filed a "second" application for a writ of habeas corpus incorporating by reference the grounds alleged in his first application and further alleging exhaustion of administrative remedies.

 The parties agree that if the merits of petitioner's claim are reached by the court, a decision should be rendered based on the evidence presented at the hearing on the first application. The respondents urge, however, that the court no longer has jurisdiction in this matter and consequently cannot reach the merits. For the reasons stated below, the court is of opinion that it does have jurisdiction but that on the merits petitioner is not entitled to the relief he seeks.

 I.

 The government contends that the court's April 21, 1975 decision is, in effect, a dismissal of petitioner's first application and that no jurisdiction exists as to the "second" petition because both petitioner and his custodian are outside the court's jurisdiction. It is unnecessary to reach the question of whether there is an independent jurisdictional basis for the second petition because it was the court's intention to retain jurisdiction to decide the first petition on the merits, if petitioner's administrative remedies proved unsuccessful. *fn1" That intention was expressed as follows:

 
"The court has reviewed the factual and legal basis for each of these contentions and has concluded that the interests of all concerned would not be served by an immediate ruling on the merits of petitioner's asserted contract claims. For the reasons which follow, the court will deny habeas corpus relief at this time, treat the application as a mandamus proceeding under 28 U.S.C. § 1361, and direct respondents to permit petitioner to avail himself of all available intraservice remedies that may be appropriate."

 And again:

 
"Should petitioner promptly avail himself of this remedy without obtaining the desired relief, this court would then have grounds for proceeding directly to the merits of his claims." Memorandum of Decision, April 21, 1975, at 9 and 13; emphasis supplied.

 Having fully explored the substantive claims raised by petitioner in two days of hearings, there is no reason why the court should not proceed to a decision on the merits.

 II.

 At the age of 18 and after having graduated high school, petitioner decided to enlist in the Navy. To that end, during December 1970, he approached a Navy recruiter in Coney Island, Brooklyn, New York, where he then lived, and expressed a desire to enlist for four years of active duty. *fn2" The recruiter suggested a six-year active duty enlistment but petitioner declined. He was given some forms to fill out and he returned to the recruiter two or three days later with the forms completed.

 The recruiter then referred him to a second recruiter at a different location in Brooklyn (Bay Ridge), to whom he went several days later. The second recruiter also mentioned a six-year active duty enlistment and suggested that petitioner take a test to see if he would be eligible for a training program which would give him a year to a year and a half of schooling and working on the latest IBM equipment. The recruiter mentioned that the school was in California. No mention was made of where petitioner would be assigned after school. Petitioner agreed and took a five and a half hour test which was graded immediately thereafter.

 Petitioner was informed that he had done well on the examination and was therefore eligible for whatever program he wanted. He requested "computer school", having had a previous interest in that field, and was under the impression when he left the recruiter that it was settled that he had enlisted for six years of active duty and would, in return for the extra two years of active duty, be sent to "computer school." No contracts were signed at that time.

 On January 26, 1971, petitioner went to Fort Hamilton in Brooklyn, had his pre-induction physical and signed a prepared contract. Before signing the contract, petitioner began to read it and noticed that it provided for only a four-year active duty commitment instead of the six-year program which he understood he had agreed to. He pointed out the discrepancy to the Navy official at whose desk he was reading the contract. The Navy official then made a telephone call to an unidentified person, spoke to that person for a while and then gave the phone to petitioner. The man on the other end of the line told petitioner that there had been a mistake but that he should sign the four-year contract so that he could be shipped out to boot camp that day and he, in turn, would send out an explanatory letter correcting the error. Petitioner then signed the contract and was shipped out to boot camp in Great Lakes, Illinois.

 During boot camp, on February 23, 1971, he was sent to a building to be interviewed for job classification. He explained to the man interviewing him that there had been a mix-up, that he was supposed to be in for six years active duty and that there should be a letter explaining this. The interviewer looked through petitioner's records, told him he had found the letter, and stated that the error could be corrected by executing a two-year extension agreement. This agreement gave as the reason for the extension "Training (Advanced Electronics Field (AEF) Program)" (Petitioner's Exh. 2), and further provided that "I understand this extension agreement becomes binding upon execution and thereafter may not be cancelled except as set forth in BUPERS Manual, Article 1050150." Id.

 Petitioner informed the interviewer that he had been promised "computer school" but the interviewer insisted that petitioner fill out a sheet listing five school choices in order of preference. Petitioner acquiesced and listed "computer ...


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