The opinion of the court was delivered by: BONSAL
Plaintiff, Frederick W. Silverman, moves pursuant to Rule 65 of the Federal Rules of Civil Procedure for a preliminary injunction enjoining the defendants, J. William Middendorf, II, Secretary of the Navy, and Commanding Officer, Bureau of Medicine and Surgery, United States Navy, from ordering him to active duty in the United States Navy. Plaintiff contends that the Navy seeks to call him to active duty more than 6 1/2 years after his enlistment and after he has attained the age of 36 years, contrary to his consent, and in violation of 50 U.S.C.App. § 454(l) (1).
The defendants move pursuant to Rule 12(b) of the Federal Rules of Civil Procedure for an order dismissing the complaint on the grounds that this Court lacks jurisdiction since plaintiff has failed to exhaust his administrative remedies, that plaintiff voluntarily consented to be called to active duty as of July 1, 1976 by virtue of his commission in the United States Naval Reserve Medical Corps, that plaintiff cannot now rely upon his age or years in the service to avoid active duty, and that the Navy's actions are proper under 50 U.S.C. App. § 454(l) (4).
It appears undisputed that in 1969 plaintiff applied to the Department of the Navy ("the Department") for a commission in the United States Naval Reserve Medical Corps pursuant to the Armed Forces Physicians' Appointment and Residency Consideration Program commonly referred to as the "Berry Plan", and that on September 14, 1969, plaintiff entered into an agreement with the Department whereby he consented ". . . to serve on active duty as a commissioned officer for a period of two (2) years at the conclusion of deferment if the needs of the service so require." Exhibit "A" attached to Affidavit of Gary G. Cooper dated July 8, 1976. Thereafter, plaintiff accepted a commission as a lieutenant in the United States Naval Reserve Medical Corps.
On February 25, 1970, plaintiff requested a five-year deferment of active military service to complete his residency training in general surgery at the Bronx Municipal Hospital. He was granted a one-year deferment and subsequently, on a year-to-year basis, received additional one-year deferments. See Exhibits "D" through "G" attached to Affidavit of Gary G. Cooper dated July 8, 1976. By letter dated January 28, 1974, plaintiff requested an additional one-year deferment to accept a fellowship in surgical oncology at Roswell Park Memorial Hospital in Buffalo, New York. The deferment was granted on February 22, 1974. Plaintiff then informed the Department that he intended to accept a two-year fellowship at Memorial Sloan Kettering Cancer Center, New York, New York instead of the fellowship at Park Memorial Hospital. By letter dated December 4, 1974, plaintiff was granted an extension of his deferment until June 30, 1976. See Exhibit "S" attached to Affidavit of Gary G. Cooper dated July 8, 1976.
On October 31, 1975, plaintiff was notified by Captain Barcay of the Bureau of Medicine and Surgery of the Department of the Navy that he was in his last year of deferment and that he would become eligible for active duty soon after his training was completed. By letter dated December 22, 1975, plaintiff was informed that the Department planned to call him to active duty in the summer of 1976 and, on March 23, 1976, plaintiff was notified that he was scheduled to report for active duty on July 7, 1976. By letter dated April 6, 1976, plaintiff requested that he be relieved from further commitment for active duty in the United States Naval Reserve on the grounds of his present age, his years of service in the inactive Reserves, and his family obligations. This request was denied by the Chief of Naval Personnel by letter dated June 11, 1976. See Exhibit "B" attached to plaintiff's Complaint filed June 21, 1976. Plaintiff then commenced this action on June 21, 1976. By agreement of both parties, plaintiff's call to active duty has been deferred pending determination of these motions.
Plaintiff contends that he may not be called to active duty because he is an officer and physician in the United States Naval Reserve over the age of 35 years and that under 50 U.S.C.App. § 454(l)(1) and applicable Department of Defense Regulations the Department of the Navy has neither the authority nor the jurisdiction to activate him. Plaintiff contends that he has exhausted all administrative remedies available to him and that he seeks injunctive relief because he has no other available and adequate remedy at law.
While it is undisputed that plaintiff sought review of his claims by a board authorized by the Chief of Naval Personnel (see Affidavit of D.J. Brideau dated July 2, 1976), it appears that plaintiff has not filed an application for relief before the Board for Correction of Naval Records. See Affidavit of John E. Corcoran dated June 29, 1976.
Section 1552 of Title 10 of the United States Code provides in part:
"(a) The Secretary of a military department, under procedures established by him and approved by the Secretary of Defense, and acting through boards of civilians of the executive part of that military department, may correct any military record of that department when he considers it necessary to correct an error or remove an injustice. . . .
"(b) No correction may be made under subsection (a) unless the claimant or his heir or legal representative files a request therefor . . . within three years after he discovers the ...