Switkes v. United States

Davis, Judge,

dissenting:

For me, the two letters plaintiff wrote to the military authorities and the two answers he received' — -during the period in which the Defense Department was enjoined from sending him to Vietnam — -make all the difference. Early in August *171 1970 'he wrote to the commanding officer of Travis Air Force Base, explaining his situation and requesting instructions as to where he should report for military duty:

* * * I would appreciate being notified whether I should report to any military installation at this point and, if so, by when.

*****

Plaintiff forwarded a copy of this letter to the Surgeon General.

On August 12, 1970 the headquarters at Travis sent a response to plaintiff which stated in pertinent part:

% % # %

* * * You are advised that the Air Force has no operational control over you. This office has contacted Captain Michael Katz of the Litigation Division, Army Office of the Staff Judge Advocate, Pentagon, Washington, D.C., and he advises that he will contact the Surgeon General, and that you will be receiving directions f rom the Army.

$ $ $ ‡ ‡

Plaintiff received no instructions as to where he should report, and on February 4, 1971, wrote to the Surgeon General of the Army. This letter stated:

SH # * # *

As I am directly under the command of the Surgeon General, I am writing your office for advice as to my current status with the military. Based on the fact that I have very little time left in the service, I am unclear as to what to do now. Should I report to Sixth Army Headquarters in San Francisco ?

*****

To this inquiry the plaintiff received the following reply:

*****

Your current orders assigning you to Vietnam remain in effect. This office understands that you have obtained a restraining order barring your movement overseas. It is expected that you will comply with your original orders when the restraining order is dissolved. In the event the court reaches a decision which requires an amendment of your current orders, you will be so advised.

*172 The only proper understanding of tbis correspondence, it seems to me, is that plaintiff was officially informed that he should not report to Travis or to Vietnam while the district court’s order remained in effect, and that meanwhile the Army had no assignment for him other than to await the end of the litigation. The parties have agreed that throughout the disputed period Switkes remained under the authority and control of the Army and subject to its orders and discipline. He was amenable to orders and to an assignment within the country. There is no suggestion that he hid or could not be found. So far as we know, he did not act inconsistently with his status as an Army captain. Indeed, he tells us — and it is not denied — that he did not feel free to, and did not, engage in other employment. The conclusion I must reach on this record is that he did precisely what the Army told him to do, and that he was entitled to be paid even though he performed no “service” in the usual sense.

Only a year ago we had before us a military case which seems to me fully comparable. In Bates v. United States, 197 Ct. Cl. 35 , 453 F. 2d 1382 (1972), an enlisted man was returned from Vietnam to his hometown on temporary leave, with directions to await a permanent change-of-station order. Because of some administrative breakdown, he did not receive such orders, though like Switkes he made appropriate inquiry, and therefore he remained at home for some nine months before his status was regularized. In that instance the service itself corrected its records to show that he was on active duty (not in excess of leave) during the period at home. The issue before this court was whether he could properly retain, in addition to his active duty pay, his civilian earnings during his time at home — and we held that he could under the then existing regulation. For present purposes, the significant point is that the Defense Department itself agreed that Bates was on active duty while he was at home awaiting orders, and this court grounded its judgment on that determination. In view of Switkes’ correspondence and what he was told by the Surgeon General, the same position is called for here.

*173 As Judge Nichols points out, it is settled that “actual service” is not a prerequisite to the right to military pay; in circumstances where they were considered on active duty, other servicemen have been granted pay even though they were at home or not performing work for the military. See, e.g., Bell v. United States, 366 U.S. 393 (1961); United States v. Williamson, 90 U.S. (23 Wall.) 411 (1875); White v. United States, 72 Ct. Cl. 459 (1931); Dickenson v. United States, 163 Ct. Cl. 512 (1963). The true issue is whether the serviceman claiming active duty pay was where the military ordered him to be. 1

The majority, however, rests upon plaintiff’s conceded four-day AWOL from July 20 to July 24,1970, as tainting the whole rest of the period. I cannot accept this premise because the official correspondence which ensued (beginning in August 1970) shows clearly that he was on active duty, not absent without leave (or absent with leave), while the judicial restraining orders remained in effect. Although he specifically asked where to go, and expressed his willingness to go where ordered, he was told to stay put. See United States v. Williamson, supra.

There is no adequate reason, in my view, to question the authority of the two officers who wrote to Switkes. If plaintiff’s post was Travis (as the court holds), the commanding officer of that very Base refused to accept him but referred him to the Army’s Surgeon General and told him to wait to receive directions from the Army. Within the Army, the Surgeon General has staff responsibility for the management of health services, exercises technical staff supervision over medical facilities and 'assets, serves as chief of the Army Medical Department, and “exercises career management authority over commissioned personnel of the Army Medical Department within policies established by the Deputy Chief

*174 of Staff for Personnel.” Alt 10-5, para. 2-36 (change 1, May 1969). 2

As a staff officer, the Surgeon General may not have the technical authority, wholly on his own, to reassign a military doctor, but he certainly 'has, at the least, the authority to interpret orders which the Office of the Surgeon General undoubtedly drafted, in the first instance, for routine issuance by the Adjutant General. In this case, the 'Surgeon General was officially interpreting to plaintiff the scope of just such a directive — Switkes’ orders to proceed to Travis— and the impact of those orders during the period the judicial restraints were operative. There could hardly be a more authoritative explanation, and I cannot bring myself to reject the voice of the Surgeon General speaking officially to an Army doctor inquiring about his assignment.

The direct effect of the Surgeon General’s interpretation of plaintiff’s orders was that the latter’s omission to go to Travis, after July 24th, was confirmed and sanctioned. The captain was officially told not to proceed to Travis or any other military post; like the airman in Bates v. United States, supra, and the captain in United States v. Williamson, supra, he was on active duty where he was, awaiting further orders or assignment. Accordingly, Switkes was not absent from his post after July 24th, and I do not think that 37 U.S.C. § 503 (a) (1970) — which governs only servicemen absent without leave or over leave — is applicable. There is no need, therefore, to consider whether the Surgeon General had authority to reclassify an otherwise unexcused absence without leave.

These are the reasons why I think that plaintiff should recover for the period from July 25,1970 to April 7,1971.1 add that — perhaps it should go without saying — our personal views, one way or the other, as to conscientious objection, plaintiff’s invocation of that doctrine, and the Vietnam hos *175 tilities are wholly irrelevant to the solution of the problem before the court.

In United States v. Williamson, supra, 90 U.S. at 415-416 , the Supreme Court drew a sharp distinction between a serviceman on leave and one awaiting orders at home. As to the latter, the Court said: “He is as much under orders, and can no more question the duty of obedience than if ordered to an ambush to lie in wait for the enemy, to march to the front by a particular direction, or to the rear by a specified time.”

AR 614-30 (July 1970), Appendix B, provides that Inquiries and requests with respect to Army Medical Department officers are to be addressed to the Surgeon General, attention of MEDPT — (appropriate branch). The record shows that a telegraphic order amending plaintiff’s orders (allowing him leave to July 20) states that any reply should be sent to MEDPT-MC [Medical Corps].