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December 4, 1978

Michael A. JAMISON, Plaintiff,
John C. STETSON, Secretary of the Air Force and the United States of America, Defendants

The opinion of the court was delivered by: FOLEY


Plaintiff, Michael A. Jamison, a Captain in the United States Air Force, commenced this action on October 25, 1978, by the filing of a complaint, such action seeking to restrain the defendants, John C. Stetson, Secretary of the Air Force, and the United States, from taking any action against plaintiff regarding his transfer to Loring Air Force Base, Maine.

 On October 25, 1978, an order to show cause for a preliminary injunction was signed and made returnable November 6, 1978. A temporary restraining order was signed and filed on that same date. The grant of temporary injunctive relief was premised upon the second prong of the test for injunctive relief set forth in Sonesta International Hotels Corp. v. Wellington Associates, 483 F.2d 247, 250 (2d Cir. 1973); namely:

a clear showing of . . . sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.

 Accord, Pharmaceutical Society of the State of New York, Inc. v. Lefkowitz, 586 F.2d 953, 957-958 (2d Cir. 1978); State of New York v. Nuclear Regulatory Commission, 550 F.2d 745, 750 (2d Cir. 1977).

 The plaintiff's motion for a preliminary injunction was heard November 6, 1978. The submissions are complete. Upon this Court's consideration of the additional affidavits and supporting contentions, as well as a careful review of the precedents, it is my judgment that the temporary restraining order must be vacated, and the relief sought in the order to show cause denied and the complaint dismissed.

 The gravamen of plaintiff's complaint is that he was erroneously informed of his Active Duty Service Commitment (ADSC) prior to his attendance at a particular training school. He seeks to have this Court enjoin his transfer from the Plattsburgh Air Force Base to a new Permanent Duty Station in Maine as well as to direct the Secretary to amend his personnel record to reflect an ADSC of February 1, 1979. Such relief if granted would then enable plaintiff to exercise a particular regulation of the Air Force to avoid the assignment to Loring AFB, Maine. The facts are set forth in greater detail below.


 Plaintiff was commissioned in the grade of 2d lieutenant with the classification of "career reserve status" on December 17, 1971. At some indeterminate date he underwent pilot training, the consequence of which was the incurrence of a five-year active commitment, expiring in December of 1977.

 During the greater part of plaintiff's active service in the Air Force, he has been and continues to be stationed at Plattsburgh AFB, Plattsburgh, New York. Prior to 1977, Captain Jamison's specific responsibilities were those of copilot for the KC-135 aircraft. It is understood that this aircraft is used for aerial refuelling by the Strategic Air Command (SAC).

 In the Fall of 1976, plaintiff was offered and accepted the opportunity to attend the KC-135 Pilot Upgrade Program at Castle Air Force Base, California. Upon completion of this additional training, plaintiff would be classified as an aircraft commander.

 In accordance with a particular regulation of the Department of the Air Force, effective March 10, 1075, such flying training results in an additional ADSC. 32 C.F.R. § 888c.20. The duration of such additional commitments (1-4 years) depends upon the number of weeks for the particular training period. There is no dispute that Captain Jamison knew that the duration of his schooling was for a period of 71 days; or, more accurately, an eight week course. This course resulted in an ADSC of three years.

 In spite of the existence of 32 C.F.R. § 888c.20, Captain Jamison was unaware of the ADSC to be incurred following the completion of his upgrade training. See 32 C.F.R. § 888c.8. Therefore, prior to his entry into the upgrade training program on November 24, 1976, Captain Jamison inquired at the Consolidated Base Personnel Office, Plattsburgh AFB regarding his new ADSC. At that time it is contended that he was erroneously informed at the Plattsburgh Air Force Base that his additional commitment was for a period of two years. The giving of the erroneous information by the personnel office is not seriously disputed.

 It appears that an official Air Force publication, dated September 1, 1976, A.F.M. 50-5, amended an earlier edition of A.F.M. 50-5, by changing the KC-135 upgrade training course from 7 to 8 weeks. The consequence of an additional week of flying training was to increase the ADSC from 2 to 3 years. Apparently, the amended A.F.M. 50-5 was not received by the personnel office at Plattsburgh AFB until February 10, 1977. It must be further noted that it was not until November 15, 1977, that the Air Force mandated particular counseling of its personnel regarding the ADSC prior to entry upon a given course of training.

 Plaintiff completed his training at Castle AFB and returned to Plattsburgh AFB on or about February 2, 1977. Contemporaneous with Captain Jamison's completion of training, appropriate documentation reflecting his new ADSC, February 1, 1980, was entered in his personnel record. See 32 C.F.R. §§ 888c.10, 888c.12. Plaintiff states that he did not become aware of his ADSC until several months later that being sometime in April or May 1977.

 Approximately fifteen (15) months later, on August 14, 1978, plaintiff received orders reassigning him to Loring AFB, Maine, effective October 31, 1978. Such transfer was classified as a Permanent Change of Station. Loring AFB is one of five "northern tier" bases at which the SAC maintains a substantial number of the KC-135 aircraft. Plaintiff's assignment to Loring was based upon the following factors: 1) "northern tier" combat aircrew personnel are generally reassigned after three years; 2) Captain Jamison's unit had the greatest ...

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