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August 3, 1976

Daniel ARNOLD, Petitioner,
Donald RUMSFELD, Secretary of Defense, and Martin Hoffman, Secretary of the Army, Respondents

The opinion of the court was delivered by: PRATT


 This habeas corpus proceeding was assigned to Judge Neaher of this court, who on July 29, 1976 denied petitioner's request for a temporary restraining order. Judge Neaher did, however, permit the motion for a preliminary injunction to be accelerated so that the matter came before the undersigned, sitting as the Miscellaneous Part Judge, for argument on August 2, 1976. Upon the argument, the parties agreed that all available evidence was before the Court so that the application for a preliminary injunction and the disposition of the merits of the case may be consolidated. The following shall constitute the Court's findings of fact and conclusions of law.

 Petitioner, Captain Daniel Arnold (hereinafter "Arnold") a physician specializing in oncology, or the treatment of cancer, voluntarily accepted a reserve commission in the United States Army on February 2, 1972 under the provisions of the Armed Forces Physicians' Appointment and Residency Consideration Program (Berry Plan), under which the Army permits physicians to defer their active military service commitment until after they complete residency training in their specialty.

 In order to be eligible for the Berry Plan, Arnold subscribed to the following agreement:

"I hereby agree and consent that, if I am appointed a Reserve officer in the medical * * * corps * * *, I shall serve on active duty for a period of two consecutive years upon expiration of the period of delay in being ordered to active duty to complete residency or other post doctoral training." (Defs.' Ex. 1, p. 105)

 As early as 1972, Berry was programed by the Army for entry on active duty after July 1, 1976 (Defs.' Ex. 1, p. 116). Following the customary pattern of the Berry Plan, Arnold was given annual delays so as to enable him to complete his specialty training. With each application for a delay, he reaffirmed his agreement to serve two years on active duty.

 Having completed his specialty training, Arnold has now been ordered to report for entry on active duty on August 4, 1976 at Fort Sam Houston, Texas. On April 5, 1976, Arnold applied not for further delay, but for a complete exemption from his active duty commitment. The ground of his application was that he was essential to the cancer program of Montefiore Hospital in the Bronx, and that a community hardship would be created if he were to report for active duty. Arnold's employment by Montefiore Hospital commenced in early July of 1976, well after the date of his application for exemption. He has now been working at Montefiore Hospital for approximately one month and has performed what clearly appear to be important and much needed services in that hospital.

 In his application letter, Arnold stated:

"I fully realize that I received a substantial benefit in being deferred in order to complete my training, and that I have incurred an obligation which should be honored. As I understand it, however, that obligation is to my country and not merely to the United States Army. From a medical point of view, I believe that obligation would be better served by my staff position than if I were to actually be in the service." (Defs.' Ex. 1, pp. 18-19)

 Similar contentions in support of Arnold's exemption request were advanced by numerous medical professionals, both in Montefiore Hospital and outside the hospital.

 The initial response to Arnold's application for exemption was a letter dated April 22, 1976 from Major Schuyler (Defs.' Ex. 1, pp. 21-22). In it, Major Schuyler reminded Arnold of his acceptance of the commission under the Berry Plan and the extensions of delays up to June 30, 1976 in order to permit him to complete residency training in oncology. He also reminded Arnold of his agreement to serve two years upon completion of professional training. Major Schuyler noted that there are no contractual provisions under the Berry Plan whereby a physician may be released from his active duty obligation in order to enter private practice in a community unless the active Army declares him to be excess to its needs or unless a valid hardship is substantiated. With respect to the former, Major Schuyler stated: "You are not excess as there is a critical need for your medical skills in the active Army."

 Requests for hardship exemptions are processed by the Army Delay and Exemption Board. Major Schuyler outlined the criteria to be applied by that board in reviewing requests for exemption from active duty based on a claimed community hardship. Those criteria were the following:

a. The service performed by the officer is essential to the maintenance of health, safety or ...

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