Petition — Jackson v. United States

gs 7 ALLEN AARON JACKSON,

aa Petitioner, ~°-

vs.

Untrep Strats oF AMERICA,

Respondent.

2 to the United States Court of Claims

TEES ee Mauvis M. Beri,.

oe tio, James M. GaRkLoox,

Basar st Bax & CHovos,

Ges 722 Montgomery Street,

San Francisco, California 94111,

Attorneys for Petitioner.

Page

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Statutory provision involved ..............cceeececeeeees 2

SP DE Se cB inna od da desetccepecdecccocs 3

Reasons for granting the writ ................ceeeeeeeees 5

A. The findings of fact made by the Court of Claims

were clearly erroneous and were based on facts neither

found in nor supported by the record ............. 5

B. The Court of Claims erred in finding that petitioner’s

case sounds in tort and not in contract ............ 8

C. The Court of Claims erred in finding that the army

did not breach its enlistment contract with petitioner 13

GIR bcs kkvdile bd Mika cdacdad dud s0bERehne bé0de cede 17

Table of Authorities Cited

Cases Pages

Bibbs v. United States, 206 Ct. Cl. 896, cert. denied, 423

AP ME ~'0s cdnedunddedses tececadsesedconstebe 10, 11

Billings v. Truesdell, 32% U.S. 542 (1944) ............... 8,14

Bird & Sons, Inc. v. United States, 420 F.2d 1051 (Ct.

Tt EE ctencdScia th Useehnasthesedbeeessoeceeesoces 12

Cafeteria and Restaurant Workers Union Local 473 AFL-

CIO v. McElroy, 367 U.S. 886 .............ccceeeeees 14

Chain Belt Co. v. United States, 115 F.Supp. 701 (Ct.

Gy ED Sb ecc cede ccecccccsccscccecccescoccccccceces 11, 12

Clark v. United States, 461 F.2d 781 (Ct. Cl.), cert. denied,

Ge ee Ee CED GbeS Seba es ba Weccccecccccccccess 9

ii TaB.e or AUTHORITIES CITED

Pages

Dooley v. United States, 182 U.S. 222 (1901) ............ 12

Eastport Steamship Corp. v. United States, 372 F.2d 1002

|f S errr er ere T ere 9,12

Feres v. United States, 340 U.S. 1385 (1950) ............. 12

Jackson v. United States, 551 F.2d 282 ....... Setisnbtns 1, 6, 7,8

Kiefer & Kiefer v. Reconstruction Finance Corp., 306 U.S.

Se CED. oct cbhaddaceakelaedtas dyed dansbiesie enne 10

Martilla v. United States, 118 Ct. Cl. 177 (1950) ........ 9

McCreery v. United States, 161 Ct. Cl. 484 (1963) ....... 12

Peavy v. Warner, 493 F.2d 748 (5th Cir. 1974) ......... 14

Smith v. Resor, 406 F.2d 141 (2d Cir. 1969) ............ 8

United States v. Eliason, 41 U.S. (16 Pet.) 291 (1842) ... 14

United States v. Huff, 165 F.2d 720 (5th Cir. 1948) ..... 1l

Statutes

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Untrep States or AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

to the United States Court of Claims

Petitioner Allen Aaron Jackson respectfully prays

that a Writ of Certiorari issue to review the judg-

ment and opinion of the United States Court of

Claims entered in this proceeding on March 23, 1977.

OPINION BELOW

The opinion of the United States Court of Claims

is reported at 551 F.2d 282 (Ct. Cl. 1977).

JURISDICTION

The judgment of the United States Court of Claims

was entered on March 23, 1977, granting the motion

2

of the United States to dismiss the action brought

by Petitioner. The Court of Claims denied a timely

motion for rehearing on April 29, 1977. On July 18,

1977, this Court granted Petitioner’s motion to extend

the time for filing a Petition for Writ of Certiorari

up to and including August 21, 1977. The jurisdiction

of this Court is invoked pursuant to 28 U.S.C.

§1255(1).

QUESTIONS PRESENTED

1. Whether the Court of Claims granted the United

States’ Motion to Dismiss on the basis of an

improper and erroneous finding of fact, and on

the basis of facts neither found in nor sup-

ported by the record.

2. Whether the Court of Claims erred in finding

that Petitioner’s claim, based on his enlistment

contract with the Army, sounded in tort and not

in contract.

3. Whether the Court of Claims erred in finding

that the Army did not violate its enlistment con-

tract with Petitioner.

STATUTORY PROVISION INVOLVED

28 U.S.C. §1491 (The Tucker Act) :

The Court of Claims shall have jurisdiction to

render judgment upon any claim against the

United States founded either upon the Constitu-

tion or any Act of Congress, or any regulation

of an executive department, or upon any express

or implied contract with the United States, or

3

for liquidated or unliquidated damages in cases

not sounding in tort....

STATEMENT OF THE CASE

This is an action for breach of contract by the

United States. The United States Court of Claims

has jurisdiction over this case pursuant to 28 U.S.C.

§1491 (The Tucker Act).

On January 24, 1974, Petitioner Allen Asron Jack-

son entered into a contract of enlistment for three

years in the United States Army, at the recruiting

station located at 615 West Van Buren Street, Chi-

cago, Illinois. He signed the agreement on his own

behalf, and Sergeant A. C. Kosik represented the

Army.

As a condition of Petitioner’s enlistment, Petitioner

and Sergeant Kosik agreed that Petitioner did not

wish to be assigned to a Military Occupation Specialty

(MOS) which would subject him to dangerous combat-

type military maneuvers and the physical hazards

incident thereto. In addition, Petitioner wished to

learn mechanics so that ie could open a gas station

or auto repair shop after his three years of training

in the service. Accordingly, both parties to the agree-

ment specifically stipulated that Petitioner would be

assigned to automobile maintenance after his comple-

embodied in “Statements For Enlistment, Delayed

Entry Program” DA Form 3286-32-R, Paragraph

1(g)(2): “If enlisting for an Army school course, I

am assured of attending school course Ist INF DIV

4

(M) Ft. Riley KS AND OJI MOS 63 A10 (ME-

CHANICAL MAINT.).” Portions of the documents

executed by Petitioner upon enlistment in the Army

are appended hereto as Appendix A.

In accordance with the terms of the agreement,

Petitioner completed basic training at Fort Leonard

Wood, Missouri. On May 11, 1974, following his basic

training, he arrived for regular duty at Fort Riley,

Kansas, where he was assigned to a tank division, in

breach of his agreement with the Army. Petitioner

protested this assignment as a violation of the spirit

and terms of his enlistment contract and contacted

various Army personnel to effect a transfer to auto-

mobile mechanics school. Petitioner was scheduled to

meet with M. Dane of the Army on May 20, 1974, to

effectuate his transfer. This appointment, however,

was cancelled by the tank unit commander, because

the tank maneuvers which were scheduled to com-

mence on that day, in which Petitioner had been or-

dered to participate, were “more important”.

Participation in these combat maneuvers resulted

in precisely those consequences which Petitioner had

sought to avoid by means of the conditions of his en-

listment contract whereby he was not to be assigned to

combat maneuvers but to his MOS choice of mechan-

ical maintenance. During the course of the maneuvers,

Petitioner was required to run in front of the tanks

and explode smoke grenades. When the tanks turned

in Jackson’s direction, he was run over and bisected

by a tank; that is, he was literally cut in half. Both _

of Petitioner’s legs were severed, as were his male

organs, his rectum and his bowel. Of the organs below

5

the navel, only Petitioner’s kidneys and bladder re-

main.

On June 25, 1976, Petitioner filed a verified peti-

tion in the United States Court of Claims seeking

$5,000,000 for breach of contract. The petition is ap-

pended hereto as Appendix B. Petitioner based his

claim not only on the oral agreement with Kosik, but

on the express terms of the written enlistment agree-

ment, Paragraph 1(g)(2), supra. See also Paragraph

1(g)(1) of that document which refers to Army Reg-

ulation A.R. 601-210.

On September 23, 1976, Respondent filed a Motion

to Dismiss on the grounds that since Jackson’s claim

sounded in tort, the Court of Claims lacked jurisdic-

tion under the Tucker Act, 28 U.S.C. §1491. Peti-

tioner’s Response to Defendant’s Motion to Dismiss

was filed on November 23, 1976. On March 23, 1977,

without taking evidence and without hearing oral ar-

guments, the Court of Claims dismissed Petitioner’s

claim. Petitioner’s Motion for Rehearing was denied

on April 29, 1977, again without presentation of evi-

dence or oral argument.

REASONS FOR GRANTING THE WRIT

A. THE FINDINGS OF FACT MADE BY THE COURT OF CLAIMS

WERE OCLEARLY ERRONEOUS AND WERE BASED ON

PACTS NEITHER FOUND IN NOR SUPPORTED BY THE

REOORD.

The Court of Claims based its decision (appended

hereto as Appendix C) in part on a finding that:

6

Before the [Petitioner] could take the mechan-

ical maintenance course he had to complete basic

combat training. It is apparent that [ Petitioner]

had not complied with this requirement, as he had

only been at F't. Riley nine days when he engaged

in basic combat training at the time of his in-

jury. The [Petitioner] agrees that this is true.

Jackson v. United States, supra, 551 F.2d at 284.

The question of whether Jackson had completed

basic training prior to his injury is so fundamental

to his claim that the record must be set straight in

this respect. Petitioner’s Response to Defendant’s

Motion for Dismissal, filed with the Court of Claims

on November 23, 1976, expressly stated that Peti-

tioner was assigned to Fort Riley following his basic

training. Although Petitioner’s initial verified petition

to the Court of Claims (see Appendix B hereto) did

not specifically address itself to this question, he

stated therein, at Paragraph XI, that Petitioner had

performed all the terms and conditions of the agree-

ment between him and the Army which Petitioner was

required to perform. This clearly included the success-

ful completion of basic training. Petitioner has never

maintained otherwise.

The United States has not disputed that Petitioner

had completed basic training, nor could it do so on

the basis of its own records. In fact, there was noth-

ing in the record before the Court of Claims that

could have provided any support whatsoever for this

The Court also found that according to the enlist-

ment documents, Petitioner “could be placed in any

7

assignment at any time according to the needs of the

service.” Jackson v. United States, supra, 551 F.2d

at 284.

This finding is contrary to the express provisions of

these documents. The “Statements for Enlistment”

signed by Petitioner did not guarantee that a sub-

stantial portion of his enlistment would be spent in

his initial enlistment option, and in fact provided

that he could be transferred at any time “other than

as may be provided by the specific option selected.”

DA Form 3286, Part I, Paragraph 1(f). However,

the specific option selected by Petitioner and agreed

to by the Army provided that upon completion of

Basic Combat Training, Petitioner would “undergo

AIT in military occupational specialty, ... MECHAN-

ICAL MAINTENANCE.” U.S. Army Special Unit

Enlistment Option, DA Form 3286-47-R, Section I,

Paragraph 1(c). See Appendix A. This document

also provided that Petitioner was

guaranteed assignment to the untt for which en-

listed for a minimum of 16 months. Upon com-

pletion of the guaranteed period of stabilization

in the unit for which enlisted, I may be reas-

signed in accordance with the needs of the Army.

DA Form 3286-47-R, Section III, Paragraph

1(a). (Emphasis added.)

In addition to the profound errors of fact concern-

ing Petitioner’s contract with the Army, the Court

of Claims made substantive findings concerning the

authority of military recruiters, from which it con-

cluded that Sergeant Kosik was not empowered to

make the alleged promises or representations that

~~ +»

8

Petitioner would not be assigned to combat-type

duties. This conclusion is unsupported by the record.

In faet, had Petitioner been permitted to conduct

discovery, he would have demonstrated the breadth

of the recruiter’s authority under Army regulations

as well as his authority to commit the Army under

the Guaranteed Enlistment Option Program, A.R.

610-201."

These erroneous and improper findings of fact were

the basis of the Court of Claims’ determination that

Petitioner’s contract was ineffective and/or inap-

plicable to Petitioner’s action against the United

States. On the basis of this finding, the Court con-

cluded that Petitioner’s claim sounded not in contract

but in tort, and was thus not within its jurisdiction.

Jackson v. United States, supra, 551 F.2d at 285.

The magnitude of the error in these findings of

fact, upon which the Court of Claims based its dis-

missal gf Petitioner’s action against the United

States, requires review by this Court.

B. THE COURT OF CLAIMS ERRED IN FINDING THAT PETI-

TIONER’S CASE SOUNDS IN TORT AND NOT IN CONTRACT.

The Court of Claims found that Petitioner’s case

sounded in tort and dismissed his Petition on the

ground that it has no original tort jurisdiction. This

finding and conclusion are in error. Petitioner’s peti-

1This program has in various forms been in existence since

World War II. The Army is bound by its own regulations. See

Billings v. Truesdell, 321 U.S. 542 (1944); Smith v. Resor, 406

F.2d 141 (2d Cir. 1969).

tion to the Court of Claims, appended hereto as

Appendix B, is based solely and exclusively on the

breach of the enlistment contract. His petition con-

tains no tort allegations, and it contains no elements

or facts which could be read to constitute a tort. No

instance of negligence has been suggested; no mis-

representation has been implied. Petitioner has al-

leged and would attempt to prove only a breach of

contract, and not a tort.

The authorities cited in the Court of Claims opinion

stand solely for the proposition that the Tucker Act,

28 U.S.C. $1491, does not confer jurisdiction upon

the court in matters which are torts. Thus, in Mar-

tila v. United States, 118 Ct. Cl. 177 (1950), the

plaintiff complained of no breach of contract but

rather an arm injury resulting from being called

back to work before a fracture had healed. Similarly,

in Eastport Steamship Corp. v. United States, 372

F.2d 1002 (Ct. Cl. 1967), no breach of contract was

alleged, and the court found no contract claim to

exist. Consequently, where the Maritime Commission

wrongfully withheld permission to sell a vessel to a

foreign purchaser, the action was held to be one

sounding in tort, over which the Court of Claims had

no jurisdiction. Nowhere does the court imply that

a claim sounding in tort precludes contractual relief

where appropriate.

Consistent with these cases is Clark v. United

States, 461 F.2d 781 (Ct. Cl.), cert. denied, 409 U.S.

1028 (1972). There, although the plaintiffs, former

members of the reserve component of the United

States Air Force, did allege a breach of contract, the

10

court held that not only was there no breach, but also

that there was no contract. Disposing of the contract

claim on its merits, the court then held that it could

give plaintiffs no relief on the claim which also

sounded in tort, since the Tort Claims Act, 28 U.S.C.

§2680, prohibited a suit on the tort. Obviously if

there had been a legitimate contract claim the court

would have entertained the suit regardless of the fact

that the claim also sounded in tort. See Kiefer &

Kiefer v. Reconstruction Finance Corp., 306 U.S.

381, 395 (1939).

Nor is Bibbs v. United States, 206 Ct. Cl. 896, cert.

denied, 423 U.S. 985 (1975), also cited by the court,

to the contrary. The opinion in that case consists of a

two-sentence order which states:

Upon consideration thereof and of plaintiffs’

response and of defendant’s reply and of plain-

tiffs’ response thereto, the court concludes that

the motion should be granted because the action

though pleaded in a contract form is an action

sounding in tort over which this court has no

jurisdiction under 28 U.S.C. §1491 (1970); Mar-

tilla v. United States, 118 Ct. Cl. 177 (1950);

Eastport Steamship Corp. v. United States, 178

Ct. Cl. 599, 372 F.2d 1002 (1967); Clark v.

United States, 198 Ct. Cl. 593, 461 F.2d 781, cert.

denied, 409 U.S. 1028 (1972); and on the basis

thereof,

IT IS ORDERED that defendant’s motion to

dismiss is hereby granted and that plaintiffs’

petition be and the same is hereby dismissed.

In Bibbs, the court merely held that the plaintiffs

established no contractual basis for their claim and

11

that the only ground for their complaint was in

tort, over which the court had no jurisdiction. The

authority cited by the court as support for its holding

substantiates this view. The cases, which are discussed

above, all involve either non-contractual claims or

claims which though pleaded in contractual terms

were found not to be based on contracts. None of the

cases involves a situation where a valid contractual

relationship is in issue. Further, the Government’s

brief in Bibbs also argued that no contract existed,

and this must be presumed to have been the basis for

the court’s holding.

Indeed, as the court in United States v. Huff, 165

F.2d 720, 725 (5th Cir. 1948), noted, it is an elemen-

tary and well-settled principle of law that:

...+ [W]here the Government contracts through

the agency of one authorized to contract for

it, the Government is liable for breach of that

contract whether or not the damages sound in

tort. [Citations] A tortious breach of contract

is not a tort independent of contract so as to

preclude an action under the Tucker Act. “A

party may in some cases waive a tort; that is, he

may forbear to sue in tort, and sue in contract,

where the matter out of which his claim arises

has in it the elements of both contract and tort.

...” Bigby v. United States, 188 U.S. 400....

(Emphasis added.)

So, too, in Chain Belt Co. v. United States, 115 F.

Supp. 701 (Ct. Cl. 1953), an action by a manufacturer

against the Government for breach of contract arising

out of the Government’s failure to remove machinery

from a portion of the plant purchased by the manu-

12

facturer and its failure to repair damage it caused,

the court stated:

While it is true that this court does not have

jurisdiction over claims sounding in tort, an

action may be maintained in this court which

arises primarily from a contractual undertaking

regardless of the fact that the loss resulted from

_ the negligent manner in which defendant per-

formed its contract. 115 F. Supp. at 711-12. (Em-

phasis added.)

And in Bird & Sons, Inc. v. United States, 420

F.2d 1051 (Ct. Cl. 1970), the lessor of a truck sued

the Government for breach of a lease resulting in

damage to the truck. The court ruled that, “Where

an alleged ‘negligent’ act constitutes a breach of a

contractually created duty, the Tucker Act does not

preclude relief.” 420 F.2d at 1054.

Consequently, even if plaintiff had pleaded facts

sufficient to constitute a claim in tort, which he has

not, he would still be entitled to waive the tort and

proceed under the Tucker Act. Dooley v. United

States, 182 U.S. 222 (1901).

McCreery v. United States, 161 Ct, Cl. 484 (1963)

and Feres v. United States, 340 U.S. 135 (1950),

cited in the decision, are totally irrelevant to Peti-

tioner’s case. Those cases were based exclusively on

the torts of negligence or misrepresentation and have

nothing whatever to do with the contract claim which

plaintiff brings herein. Similarly, in Eastport Steam-

ship Corp. v. United States, supra, the court merely

scrutinized the pleadings to determixe what claim,

if any, the plaintiff had, since no contract claim was

13

involved. The court did not indicate in any way that

a legitimate contract claim is not cognizable because

the claim “sounds in tort.”

0. THE COURT OF CLAIMS ERRED IN PINDING THAT THE

ARMY DID NOT BREACH ITS ENLISTMENT CONTRACT

WITH PETITIONER.

In its opinion, the Court of Claims held that Peti-

tioner was not entitled as matter of contractual right

to the guaranteed enlistment option as delineated in

his enlistment papers, and that Petitioner could not

rely on any statements, representations or agieements

made by the Army recruiter.

In attempting to create a volunteer Army, Congress

enacted 10 U.S.C. §503, which requires that “the

Secretary concerned shall conduct intensive recruiting

campaigns to obtain enlistments in the Regular

Army.” Pursuant to 10 U.S.C. §3012, the Secretary

of the Army authorized the so-called “guaranteed en-

listment program.” 32 C.F.R. §571.5.

One important inducement of this authorized cam-

paign is the schooling or training provided under the

guaranteed enlistment. A.R. 610-201. The document

which Petitioner and the legal representative of the

United States Army agreed to stated that Petitioner

was “assured of attending school course” in mechani-

cal maintenance. This assurance, anc the assurance

that Petitioner would be assigned to mechanical main-

tenance rather than to occupation specialties involv-

ing dangerous combat-type maneuvers, were the

14

consideration for, and conditions of, Petitioner’s en-

listment in the Army.

Common-law rules governing private contracts are

applicable to agreements made with the Armed

Forces. In Peavy v. Warner, 493 F.2d 748, 750 (5th

Cir. 1974), a suit based on the breach of an enlistment

contract was said to be entirely proper. The rule, as

the court there pronounced it, is explicit:

[C]laims that enlistment contracts are invalid

or have been breached are decided under tradi-

tional notions of contract law. Shelton v. Brun-

son, 465 F.2d 144 (5th Cir. 1972); Johnson v.

Chafee, 469 F.2d 1216 (9th Cir. 1972); Chalfant

v. Laird, 420 F.2d 945 (9th Cir. 1969), 493 F.2d

at 750. (Emphasis added.)

Applying these principles in the case at bar, the

error of the Court of Claims’ holding is apparent:

Without the promise of specialized training in me-

chanical maintenance, Petitioner would not have

signed the enlistment documents, the terms of which

were later violated by the Army.

In addition, the Court of Claims’ interpretation of

A.R. 610-201 violates the long established standard

for judging lawful military regulations. Army regu-

lations have the force of law, Cafeteria and Restau-

rant Workers Union Local 473 AFL-CIO v. McElroy,

367 U.S. 886; Billings v. Truesdell, 321 U.S. 542

(1944) ; United States v. Eliason, 41 U.S. (16 Pet.)

291 (1842), and may not be questioned by the courts

because they are thought to be unwise, United States

v. Eltason, supra. In the case at bar, Petitioner would

have demonstrated that under the applicable regula-

15

tions, Sergeant Kosik was in fact empowered to make

the promises and representations upon which Peti-

tioner relied in enlisting, and that these promises and

representations were binding on the Government.

A final point is in order. The United States has

argued, and the Court of Claims has imputed, that

Petitioner’s and the Army’s agreement to have Peti-

tioner assigned to mechanical maintenance as op-

posed to occupation specialties involving dangerous

combat-type maneuvers could form no basis for a

contract, and none was thereby created. If this is so,

Petitioner is rather hard pressed to know what it was

that he signed. The document which he and the rep-

resentative of the Army signed assured him of train-

ing in mechanical maintenance. Without this assur-

ance, Petitioner would not have enlisted in the Army.

Petitioner will not accept the imputation that the

United States Army is not to be held to its promises.

These are promises which the United States Army

has circulated and presently circulates throughout

this country to induce young people like Allen Jack-

son to join and make a career in this nation’s volun-

teer military. Petitioner does not and will not believe

that he was lied to. He will not believe that others

are being deceived. He will not accept the suggestion

that the promises of the United States are worthless

and to be treated with contempt. Petitioner served

his country honorably; he was mutilated while serv-

ing his country. He will not hear the Government say

that the agreement he signed has no value, that the

Government’s words were empty, hollow and unen-

forceable in a court of law.

16

To hold that the United States Army is accountable

on its contracts will neither imperil it nor the Re

public. If the Government has no intention of living

up to its word, it need not give its word. In times

of national emergency, the Army may of course rely

on the draft. It need make no promises; it need

enter no bilateral agreements. Presently the nation

is actively experimenting with a volunteer army, and

so long as the Army feels required to promise young

recruits specific military occupation specialties in

order to encourage enlistment, it ought not to derive

the recruiting advantages of its agreements but none

of the burdens. Such an Army would be a trap for the

unwary, a vessel for the gullible.

Petitioner rejects any suggestion that the agree-

ment entered into between the parties would operate

to restrict all basic duties of the plaintiff as a soldier,

and that to affirm the agreement would mean that

Petitioner might be in continuous attendance at an

Army school course in automobile maintenance for

the term of his enlistment. Such a contention, which

the Government has advanced below, is absurd and

insulting. The Army promised only to send Petitioner

to mechanical maintenance school after his basic

training. The natural consequence of being so trained

would be assignment to a Military Occupation Spe-

cialty for which the training is appropriate. That was

the expectation of the parties—not that Petitioner

woald spend his career in training.

Petitioner entered into an enforceable contract with

the United States Army, which the Army breached.

17

The conclusion to the contrary drawn by the Court of

Claims is unsupported, inexplicable and clearly

erroneous.

CONCLUSION

For all of the foregoing reasons, the Petition for

Writ of Certiorari should be granted.

Respectfully submitted,

MELVIN M. BEL,

JaMEs M. GARLOOK,

Bex & CHOvULOs,

722 Montgomery Street,

Sen Francisco, California 94111,

Attorneys for Petitioner.

Dated, August 17, 1977.

(Appendices Follow)

4

Appendix A

DA Form 3286-32-R, 1 Jun 72

STATEMENT FOR ENLISTMENT

DELAYED ENTRY PROGRAM

For use of this form, see AR 601-220; The pro-

ponent agency is the Office of the Deputy Chief

of Staff for Personnel

TO BE COMPLETED BY ALL APPLICANTS

ENLISTING FOR THIS OPTION

1. ACKNOWLEDGEMENT: In connection with

my enlistment in the United States Army Reserve, I

hereby acknowledge that:

a. My enlistment in the US Army Reserve obli-

gates me to a total of 6 years of service in the Armed

Forces of the United States, including service in the

Reserve Components, unless sooner discharged by

proper authority.

b. I will be assigned to the US Army Reserve

Control Group (Delayed Entry), during which time

I will be in a nonpay status, and will not be author-

ized to participate in any Reserve training.

ce. My time served in the Reserve will be creditable

for pay purposes when I enlist in the Regular Army

or enter on active duty.

d. The combined time served in the Reserve prior

to entry on active duty and on active duty will be

creditable to my 6-year obligation.

e. I volunteer to serve on active duty for 3 (enter

number) years in any job assignment specified by the

ft a Se eee ede a ee ss ——

il

Army, such period to begin within 180 days unless I

enlist in the Regular Army, or I am granted further

delay by proper authority.

f. This enlistment in no way releases me from my

obligation to register with the Selective Service Sys-

tem; however, by fulfilling the terms of this agree-

ment, I will be deferred from induction or involun-

tary order to active duty except in the event of war

or national emergency declared by Congress, or na-

tional emergency declared after 1 Jan 53 by the

President of the United States or as otherwise pro-

vided by law presently in force or hereafter enacted.

g. In lieu of performing the active duty specified

in e above, I may enlist in the Regular Army for not

less than (enter number) years with the fol-

lowing understanding :

(1) Upon enlistment in the Regular army, I will

be enlisted under the provisions of AR 601-210,

TABLE 5-41 (Enter the appropriate table number

and the title of the enlistment option(s) for which

enlisting. Only tables for which a “yes” entry is

included in Column 7, Table 5-1, may be entered

here. )

(2) If enlisting for an Army school course, I am

assured of attending school course Ist INF DIV (M)

Ft. Riley, Ks and OJT MOS 63A10 (MECHANT-

CAL MAINT) (Enter school course title and course

number. )

(3) If I subsequently enlist in the Regular Army

for an option for which an enlistment bonus is au-

thorized, has been authorized in the past, or may be

lil

authorized in the future, I will be entitled to “the

bonus only if it is authorized at the time of my en-

listment in the Regular Army.

(4) In the event the enlistment option, school

course, or training for which enlisting is discontinued

before I enlist in the Regular Army, I will enlist for

another option, school course, or training of my choice

for which I am qualified and for which there is a

vacancy.

(5) The date of my enlistment in the Regular

Army is scheduled for 25 FEB. 174.

(Day) (Month) (Year)

(6) Should I disqualify myself before I enlist in

the Regular Army, initiate action designed to obtain

my release from the Delayed Entry Program, fail to

enlist in the Regular Army, or willfully fail to report

for active duty on the date specified in my enlistment

orders, I forfeit my entitlement-to this enlistment —

option and may be required to serve on active duty

for 3 (enter number) years in my Reserve status.

h. If for any reason I am discharged from the

Army Reserve other than for immediate enlistment

for not less than 3 (enter number) years in the Regu-

lar Army, my draft-deferred status is terminated and

the circumstances will be reported to my local Se-

lective Service Board.

i. Upon completion of my active duty, I will serve

in the Ready Reserve in accordance with laws and

regulations then in effect or thereafter put into effect.

j. In the event I willfully fail to report on the

date specified in my active duty orders to the Armed

iv

Forces Examining and Entrance Station designated

therein, I will be in an absent without leave (AWOL)

status and subject to apprehension and disciplinary

action under Article 85 (Desertion) or Article 86

(AWOL) of the Uniform Code of Military Justice

(Title 10, US code, Sections 885 and 886).

2. UNDERSTANDING: I have read and under-

stand each of the statements above and the statements

contained in DA Form 3286, signed by me, and un-

derstand that they are intended to constitute all prom-

ises whatsoever concerning my enlistment in the US

Army Reserve. Any other promise, representation, or

commitment made to me in connection with my enlist-

ment is written below in my own handwriting or is

hereby waived (if none, write “None’”’). None

AUTHENTICATION

Signature of Career Counselor

/s/ Anthony C. Kosik

Signature of Applicant

/s/ Allen A. Jackson

Date 24 Jan 1974

Typed Name, Grade, SSN, and Signature or Witness-

ing Officer

Stephen H. Buch

Capt. AGC

Proe Off.

DA Form 3286-47-R, 1 Dee 73 .

PART VI—UNITED STATES ARMY

SPECIAL UNIT ENLISTMENT OPTION

For use of this form, see AR 601-210; the

proponent agency is the Office of the Deputy

Chief of Staff for Personnel.

TO BE COMPLETED BY ALL APPLICANTS

ENLISTING FOR THIS OPTION

SECTION I

(Applicable to all nonprior service applicants and

prior service applicants who are required to undergo

advanced indivic.ual training.)

1. ACKNOWLEDGEMENT: In connection with

my enlistment in the Regular Army for the United

States Army Special Unit Enlistment Option, I

hereby acknowledge that:

a. My enlistment for this option assures me that,

provided I meet required prerequisites, I will be as-

signed to Ist INF DIV, FT. RILEY, KS (Enter

the unit for which enlisting.)

b. Unless I have previously completed basic or

basic combat training (BCT) and served in the Army

or Marine Corps in the past 3 years, I must complete

BCT prior to undergoing advanced individual train-

ing (AIT).

ce. Upon completion of BCT, I will undergo AIT

in military. gecupational specialty MOS (OJT)

63A10 MECHANICAL MAINTENANCE (Enter the

MOS for which enlisted.)

vi

d. In the event the training in the MOS for which

I enlisted is cancelled after my enlistment or if I

fail to report for MOS training at the appropriate

time, through no fault of my own, I may select train-

ing in any other MOS for which a vacancy exists in

the unit for which enlisted and for which I am qual-

ified.

SECTION II (Deleted)

SECTION III

(Applicable to all applicants. )

1. ACKNOWLEDGEMENT: In connection with

my enlistment in the Regular Army for the United

States Army Special Unit Enlistment Option, I

hereby acknowledge that:

a. I am guaranteed assignment to the unit for

which enlisted for a minimum of 16 months or normal

tour length if enlisting for a short tour area after

arrival at the unit for which enlisted, except as in-

dicated below. Upon completion of the guaranteed

period of stabilization in the unit for which enlisted,

I may be reassigned in accordance with the needs of

the Army.

b. If enlisting for the United States Army Air

Defense Command, I will be assigned to a unit lo-

cated in the vicinity of NA (Enter the selected metro-

politan area; e.g., “Chicago, IL.”)

ce. If enlisting for an airborne or Special Forces

Unit, I must complete airborne training.

d. In the event the unit or activity to which I am

assigned or attached under the provisions of this op-

<_—=>

=

Vii

tion is deployed, relocated, inactivated, disbanded, dis-

continued, reorganized, or redesignated prior to the

expiration of the guaranteed minimum period of as-

signment to the unit, activity, installation, or oversea

area of choice, I will remain assigned to the unit or

area, or be reassigned in accordance with my pref-

erences. However, If the foregoing is not possible or

does not fulfill Army worldwide personnel require-

ments, the needs of the Army will determine whether

I will remain assigned to the unit or area or be re-

assigned.

e. If enlisting for assignment to an oversea com-

mand, I must be eligible under the provisions of AR

614-30, for oversea assignment.

f. In the event I fail to meet any of the estab-

lished prerequisites for this option or become medi-

cally or otherwise disqualified for training or duty in

my designated military occupational specialty (MOS),

I will be trained and utilized in accordance with the

needs of the Army and will be required to complete

the term of service for which I enlisted.

g. My term of enlistment is for 3 years.

2. UNDERSTANDING: I have read and under-

stand each of the statements above and the statements

contained in other parts of DA Form 3286, signed by

me, and understand that they are intended to consti-

tute all promises whatsoever concerning my enlistment.

Any other promise, representation, or commitment

made to me in connection with my enlistment is writ-

ten below in my own handwriting, or is hereby waived.

(If none, write “None.”) X None.

AUTHENTICATION

Signature of Career Counselor

/s/ Anthony C. Kosik

Signature of Applicant

/s/ Allen A. Jackson

Date 25 FEB 1974

Typed Name, Grade, SSN, and Signature of Witness-

ing Officer

/s/ J.P. Woythal

Jeffrey P. Woythal

Ist Lt. INF

Asst Proc Off AFEES

CHCO

*U.S. Government Printing Office : 1973—750-269/1807 Region 5-1

STATEMENTS FOR ENLISTMENT (Parts I through V)

For use of this Form, see AR 601-210 and AR 601-280; the proponent

agency is Office of the Deputy Chief of Staff for Personnel.

PART I—GENERAL STATEMENT OF UNDERSTANDING

(To be completed by all applicants for enlistment or

reenlistment in the Regular Army)

1. In connection with my enlistment in the Regular Army, I hereby

acknowledge that:

LINE ACKNOWLEDGEMENT

All promises made to me are contained in Items 3 (Rate/

a Grade), 37 (Rate/Grade Appointed/Reappointed), 48 (Untitled

Item) of the DD Form 4, my Enlistment Contract.

I have not been guaranteed Technical School Training unless

b___the title of the school course has been entered in Item 48, DD

Form 4. s

Should I make any material omission orf misstatement of fact

in connection with any of my enlistment documents:

(1) I may be subject to early separation from this enlist-

c ment or,

(2) I will complete, if permitted, the period for which I

enlisted in any assignment deemed appropriate in ac-

cordance with the needs of the Army.

Should I choose an option which requires a security clearance

and I am not granted such clearance after I have enlisted, or

d my granted clearance is revoked after I have enlisted, I agree

to accept any assignment in accordance with the needs of the

Army and I will complete the period for which I enlisted.

Law violations for which I have been convicted or have had ad-

e verse adjudications as a juvenile or youthful offender may be

cause for denial of security clearance.

x

My choice of initial enlistment option shown in Item 48 of my

DD Form 4 does not constitute any guarantee that a substantiai

part of my enlistment will be served in this option, and the

needs of the service may result in my transfer at any time

(other than as may be provided by the specific option selected)

to any other assignment within the continental United States

or to an oversea command.

Should my enlis‘ment involve a commitment for specialized

training or a selective assignment, conduct on my part occurring

after my enlistment which results in disciplinary action may be

just cause for my transfer to any other assignment within the

continental United States or to an oversea command.

My acceptance for enlistment carries no promise whatsoever

relative to furnishing transportation for dependents to oversea

commands or to the farnishing of family quarters either in over-

sea commands or in the continental United States.

If, after my enlistment for a specific option, I should fail to

meet required qualifications which cannot be determined prior

to my enlistment, I understand that I will not be offered another

enlistment option, but will be trained and assigned in accordance

with the needs of the Army and will be required to complete

the term of service for which I enlisted.

If, after my enlistment in the Regular Army, I should waive my

initial enlistment option as listed in Item 48, DD Form 4 and

in Part VI of my statements for enlistment for any reason what-

soever, this initial option will not be reinstated at a later date.

I am not conscientiously opposed, by reason of religious train-

ing or belief, to bearing arms or to participation in, or training

for war in any fo

I am aware that in the event of armed conflict involving the

United States the Secretary of the Army may declare null and

void any portion of my enlistment option pertaining to training,

assignment, or duty, if he determines such action to be neces-

sary.

PART II—STATEMENT OF LAW VIOLATIONS-

AND PREVIOUS CONDITIONS

(To be completed by every individual enlisting or reenlisting in the

Reguwar Army or amending a Regular Army enlistment contract )

2. INSTRUCTIONS TO APPLICANT

(Read before completing Part I1)

a. Complete the statement in

Item (1) below by checking the

appropriate box.

b. Answer questions (2) through

(6) by writing “Yes” or “No” as

appropriate, in the “Answer” col-

umn.

c. This statement is to be a com-

plete and accurate list of all law

violations and offenses (includ-

ing mimor traffic violations or

offenses) for which you have

been arrested, cited, charged, or

held (regardless of subsequent

disposition of your case) by

NUMBER

civil law enforcement officials,

or for which you were referred

to juvenile court or juvenile pro-

bation officials.

d. Prior Army service personnel

list only those violations occur-

ring during and/or subsequent

to last period of honorable ac-

tive service, except for offenses

not previously revealed.

e. Inservice personnel immedi-

ately enlisting, list only those

violations occurring during cur-

rent term of service, except for

offenses not previously revealed.

ANSWER

(1) I have read or had explained to me paragraphs 14 and

19, AR 604-10 which sets forth the criteria (reasons)

for discharge and types

I (() have [x]

of discharge and certify that

have not (check one) engaged in disloyal

or subversive activities as defined therein. No

(2) Have you ever been rejected for enlistment or induc ‘ion

in any of the Armed Forces to include failure of the

mental examinations administered by any AFEES, or

been discharged from previous service under other than

honorable conditions, under Personnel Security Regula-

tions, or by reason of unsuitability, or undesirable

habits or traits of character, or for medical reasons?

No

NUMBER

(3) Have you ever been arrested, cited, charged or held by

Federal, State, County, City or other law enforcement

authorities or by Juvenile Court or Juvenile Probation

Officials for any violation of any Federal Law, State

Law, County or Municipal Law, Regulation or Ordi-

nance?

(4) Have you ever been convicted of a felony or any other

offense, or adjudicated a youthful or juvenile delin-

quent?

(5) Have you ever been imprisoned under sentence of any

court?

(6) Are you now or have you ever been on parole, probation

supervision, under suspended sentence, or are you

awaiting final action on charges against you?

DA Form 3286

1 May 72

EDITION OF 1 JUL 69 Is OBSOLETE.

No

No

No

No

eee

PART II—STATEMENT OF LAW VIOLATIONS

AND PREVIOUS CONDITIONS (Continued)

3. Remarks (Give full details for any of the above questions to which

you answered yes.) (If additional space is required, continue this item

on a separate sheet of paper and attach securely to this form.)

REF ITEM OFFENSE(S) DATE AND PLACE DISPOSITION

DEVON KEDZE CHARGES

#3 SPEEDING Feb 21 - 1974 DROPPED

PART III—ACKNOWLEDGEMENT OF UNDERSTANDING

OF SERVICE REQUIREMENTS

(Applicable to all male applicants who incur a

military service obligation under current laws)

4. I understand that upon completion of my period of enlistment in the

Regular Army, I will become a Reserve of the Army. Being a Reserve

of the Army, if I enlist in a federally recognized unit of the Army Na-

tional Guard, I will become an enlisted member of the Army National

Guard of the United States. I understand further that satisfactory

service as an enlisted member of the Army National Guard of the

United States constitutes service in the Ready Reserve. Accordingly,

if Ready Reserve service in an appropriate activity of the United

States Army Reserve is not available to me, I agree to enlist in the

Army National Guard of a state (including the District of Columbia

and Puerto Rico) in which I am residing, if so directed. If my en-

listment is accepted by proper authority I agree to complete my Ready

Reserve service as a member of the Army National Guard of the

United States.

PART IV—DEPENDENCY STATEMENT

(To be completed by all applicants )

5. Relationship and age of all persons who are dependent upon me for

support are recorded below (If none, so state):

RELATIONSHIP AGE

None

xiv

PART V—MARRIAGE STATEMENT (Item 6 is applicable to

WOMEN applicants. Item 7 to be completed by ALL applicants

(men & women) )

6. I understand that at my request I may be separated from the

Women’s Army Corps by reason of iage after satisfying service

commitments on my current enlistment were incurred by school

attendance or by promotion, or upon completion of 18 months of my

current enlistment, whichever is later. If I am eligible for separation

on marriage and my application is not submitted before I depart

my home station for an oversea assignment, I must serve at least six

months of that tour before I can be separated. If I am serving in an

oversea command and I am eligible for separation by reason of mar-

riage, I must serve at least six months of that tour before I can be

separated. I understand also that in time of war or national emergency

declared by Congress I will not be eligible to be discharged solely for

reason of marriage. I further understand that withholding knowledge

of pregnancy, parenthood, or marriage will constitute grounds for my

being discharged from the United States Army.

7. Complete one of the following statements by entering “X” in appli-

cable box(es) and recording date(s) where appropriate.

{X] sever Mangizp [|] MaRRieD [_] WIDOWED

(Date)

LEGALLY SEPARA

[_] prvorcep are C} TED aia

I have read and understamd the meaning of all statements contained

in Parts I through V of this form and agree to all conditions set forth

therein. I certify that all answers to questions, statements and entries

on this form are true, correct and complete and that the Recruiter/

Career Counselor has informed me that should I intentionally conceal

any information required above, I may later be subject to

action or discharge wpon its discovery. I explicitly wnderstand that

Part I111—Acknowledgement of Understanding of Service Require-

ments applies to me, if I have not previously discharged my lawful

military service obligation.

DATE SIGNATURE OF APPLICANT SIGNATURE AND TITLE OF WITNESS

1 1974 #5;~Allen Aaron Jackson SSG

/8/ James F. Barney

3C

XV

Appendix B

Belli, Ashe & Choulos

Melvin M. Belli

James M. Garlock

722 Montgomery Street

San Francisco, CA 94111

Telephone 415-981-1849

Attorneys for Plaintiff

In the United States Court of Claims

No. 259-76

Allen Aaron Jackson, ,

Plaintiff,

‘

United States of America,

Defendant. ;

VERIFIED PETITION

Now comes the plaintiff, Allen Aaron Jackson, by

and through his attorneys Belli, Ashe & Choulos and

complaining of the defendant, The United States, as

follows:

I

That the plaintiff is a United States citizen,

II

This suit is brought under 28 USC §1491 as

amended which provides that the Court of Claims

xvi

shall have jurisdiction to render judgment upon any

claim against the United States founded upon any

express or implied contract with the United States,

III

That at all times referred to herein, the United

States was acting through the United States Army

and its officers and agents, including one Sgt. A. C.

Kosik, an officer in the Army of the United States.

IV

That on or about January 24, 1974 the plaintiff

entered into a contract of enlistment in the Army for

three years with Sgt. A. C. Kosik representing the

United States Army.

V

That the plaintiff and Sgt. A. C. Kosik specifically

agreed that the plaintiff would be assigned to auto-

mobile maintenance after basic training. The promise

was written and embodied in “Statements For En-

listment, Delayed Entry Program,” at g(2): “I am

assured of attending school court ist Inf. Div (M)

Ft. Riley, Ks., (mechanical maint.)” A copy of said

contract is attached as Exhibit A and incorporated

herein. [See Appendix A hereto. ]

VI

That as a condition to plaintiff’s enlistment, he and

Set. A. C. Kosik agreed that plaintiff did not want

regular assignment to any dangerous-combative-type

military maneuvers or functions as he feared- for his

bodily safety and well-being.

Vil

That on or about May 11, 1974, plaintiff arrived

for regular duty at Fort Riley, Kansas, and was as-

signed to Tank Division.

VIII

That Plaintiff protested his assignment to tank

duty claiming a violation of the spirit and terms of

his enlistment contract with the United States. On

being told of the Plaintiff’s dissatisfaction with the

breach of the United States, Lt. Goulding, Fort Sher-

idan agreed that the plaintiff was definitely improp-

erly assigned and that there was clearly a breach of

the enlistment contract Plaintiff and the United

States had entered.

Ix

That on or about May 20, 1974, Plaintiff was sched-

uled to meet with M. Dane, of the Army, to effect

Plaintiff’s transfer to automobile mechanics. This

appointment was cancelled by the commander of the

tank unit because maneuvers scheduled for that day

were “more important.”

x

That on or about May 20, 1974, the tank unit at

Ft. Riley, to which Plaintiff was erroneously as-

signed, commenced dangerous combatant type ma-

neuvers whereby two sets of four tanks would attack

each other. The Plaintiff in full combatant field gear

was required to run eight-hundred yards in front of

his tank unit and explode smoke grenades at a certain

point on the road. The Plaintiff performed as or-

see

dered and, when the tanks reached the detonated

grenades they turned in the Plaintiff’s direction and

ran over him, causing him to have the lower half of

his body, from the navel down, amputated.

xt

That the Plaintiff has duly performed all the terms

and conditions of the said agreement on his part to

be performed.

XII

That the United States by and through the United

States Army, has breached the terms of its contract

with the Plaintiff.

XITt

That the injury and damage which occurred to the

Plaintiff was a direct consequence of the breach of

contract by the United States. That the Plaintiff,

Allen Aaron Jackson, has been damaged in the amount

of Five Million ($5,000,000.00) Dollars.

Wuenrerore, the Plaintiff, Allen Aaron Jackson,

prays judgment against the defendant, the United

States, in the amount of Five Million ($5,000,000.00)

Dollars.

Dated: June 23, 1976

Belli, Ashe & Choulos

By /s/ James M. Garlock

James M. Garlock

Attorneys for Plaintiff

VERIFICATION

Allen Aaron Jackson, being first duly sworn upon

his oath deposes and says:

He is the Plaintiff in the above matter, he has read

the foregoing petition and knows the contents thereof

and the same is true of his own knowledge.

/s/ Allen Aaron Jackson

Allen Aaron Jackson

Subscribed and sworn to before me on the 16th day

of February, 1976.

/s/ Gerri Rudman

Notary Public

Appendix C

In the United States Court of Claims

No. 259-76

(Decided March 23, 1977)

ALLEN AARON Jackson v. THE UwiTep STaTEs

James M. Garlock, attorney of record for plaintiff.

Belli & Choulos and Melvin M. Belli, of counsel.

LeRoy Southmayd, Jr., with whom was Acting As-

sistant Attorney General Irving Jaffe, for defendant.

Before SKELTON, Kunzic and BENNETT, Judges.

ON DEFENDANT’S MOTION TO DISMISS

SKELTON, Judge, delivered the opinion of the court:

The plaintiff enlisted in the United States Army on

February 25, 1974, for a term of three years by sign-

ing written documents of enlistment, which are dis-

cussed below. He alleges that the recruiting officer

agreed with him that plaintiff would be allowed to

attend an automotive mechanical maintenance school

of the 1st Inf. Div. (M) at Fort Riley, Kansas, and

that plaintiff would not be assigned to any dangerous-

combative-type military maneuvers or functions. He

reported for duty at Fort Riley, Kansas, on May 11,

1974, and was assigned to a tank division. On May

ee ened

20, 1974, he was required to engage in dangerous com-

batant type maneuvers with his tank unit and during

the maneuvers one of the tanks ran over the plaintiff,

causing him to have the lower half of his body, from

the navel down, amputated. Plaintiff argues that be-

cause of the foregoing, the Army breached the enlist-

ment contract, and he sues here to recover $5,000,000

for such breach. The plaintiff is totally disabled and

has been receiving total disability benefits in Grade

PV2 since May 29, 1974.

The case is before us on defendant’s motion to dis-

miss the plaintiff’s petition. The defendant says that

although plaintiff has couched his suit in terms of a

contract action, his claim sounds in tort over which

this court has no jurisdiction. Also, the defendant

alleges that the enlistment documents signed by the

plaintiff, copies of which are attached to defendant’s

reply brief, nowhere contain any provision that the

plaintiff would not be assigned to any dangerous-

combative-type military maneuvers or functions, and

that if any such agreement was made orally by the

recruiting officer, it was done without authority and

contradicts the written enlistment documents and was

and is null and void.

The Department of the Army records disclose that

on February 25, 1974, plaintiff began his active duty

service at the Chicago Armed Forces Entrance and

Examination Station (AFEES). While at the station,

plaintiff executed (1) Department of Defense Form 4

(DD 4), Enlistment Contract-Armed Forces of the

United States; (2) Department of the Army Form

xxii

3286 (DA 3286), Statements for Enlistment, Parts I

through V; and (3) Department of the Army Form

3286-47-R, Statements for Enlistment, Part VI.

In executing DA Form 3286, plaintiff acknowledged

in Part 1, General Statement of Understanding, that

“All promises made to me are contained in Items 3

(Rate/Grade), 37 (Rate/Grade Appointed/Reap-

pointed), 48 (Untitled Item) of the DD Form 4, my

Enlistment Contract.” In the DD 4 executed by plain-

tiff, Items 3, 37 and 48 state in sequential order:

“PVIE-1,” “NA,” “ENL FOR SUE ENL OPT

(TABLE 541) 18ST INF DIV, FT RILEY, KS

AND MOS 638A10 MECH MAINT.” There were no

promises made in the documents pertaining to service

with any dangerous-combative-type military maneu-

vers or functions of the U. S. Army.

Also, DA Form 3286 contained the following pro-

vision :

f. My choice of initial enlistment option shown in

Item 48 of my DD Form 4 does not constitute

any guarantee that a substantial part of my

enlistment will be served in this option, and the

needs of the service may result in my transfer

at any time (other than as may be provided by

the specific option selected) to any other assign-

ment within the continental United States or to

an oversea command. .

Part VI of DA Form 3286-47-R specified :

b. Unless I have previously completed basic or basic

combat training (BCT) and served in the Army or

Marine Corps in the past 3 years, I must complete

BCT prior to undergoing advanced individual train-

ing (AIT).

¢. Upon completion of BCT, I will undergo AIT

in military occupational specialty MOS (OJT)

63A10 MECHANICAL MAINTENANCE (Enter

the MOS for which enlisted).

In executing DA Form 3286-47-R, plaintiff ac-

knowledged that no other promises, representations,

or commitments had been made to him other than as

to the statements set forth in this document, by writ-

ing in the word “None,” as shown as follows:

2. UNDERSTANDING: I have read and under-

stand each of the statements above and the state-

ments contained in other parts of DA Form 3286,

signed by me, and understand that they are in-

tended to constitute all promises whatsoever con-

cerning my enlistment. Any other promise,

representation, or commitment made to me in

connection with my enlistment is written below in

my own handwriting, or is hereby waived. (If

none, write “None.”’)

X None

It is clear from the above enlistment documents the

plaintiff signed that:

(1) Before the plaintiff could take the mechanical

maintenance course he had to complete basic combat

training. It is apparent that plaintiff had not com-

plied with this requirement, as he had only beer at

Ft. Riley nine days when he was injured and ob-

viously was engaged in basic combat training at the

time of his injury. The plaintiff agrees that this is

true.

(2) The plaintiff could be placed in any assign-

ment at any time according to the needs of the

service.

(3) The plaintiff stated in his own handwriting

that no promises had been made to him in connection

with his enlistment other than those contained in the

enlistment documents he had signed, which are dis-

cussed in detail above.

(4) No promise, representation, commitment,

agreement, or contract was made between the Army

and the plaintiff in the enlistment documents in con-

nection with his enlistment that provided that he

would not be assigned to any dangerous-combative-

type military maneuvers or functions during his

service in the Army. It is clear that the documents,

supra, executed by plaintiff upon entering active duty

service in the Army, imposed no obligation on the

United States to refrain from having plaintiff par-

ticipate in a field training exercise, nor was there any

prohibition from utilizing plaintiff in field training

exercises.

Notwithstanding plaintiff's positive statement in

the enlistment documents that no promises or repre-

sentations were made to him other than those in the

written documents, he now claims that he was prom-

ised by the recruiting officer that he would not be

assigned to dangerous or combat-type military duties.

He does not state whether such promises were oral

or written, but since they are not in the written en-

listment papers, he evidently contends that the repre-

sentations and promises were made orally by the

xXV

recruiting officer. If this is true, such oral promises

and representations, if they were made by the recruit-

ing officer, are not binding on the government. In

Goldstein v. Clifford, 290 F.Supp. 275 (D.N.J. 1968),

it was held:

The enlistment instrument and the statutory law

in effect when it was signed constitute the enlist-

ment contract. * * * [Id. at 279]

See also United States ex rel. Norris v. Norman, 296

F.Supp. 1270 (N.D. Ill. 1969) and Pfile v. Corcoran,

287 F.Supp. 554 (D. Colo. 1968). In our opinion, 10

U.S.C. § 505 requires written instruments for an en-

listment. Otherwise, there would be no way the gov-

ernment could determine which branch of the service

was involved nor the term or conditions of the enlist-

ment. |

Even if the Army recruiter made the alleged oral

promises to the plaintiff, which defendant denies,

plaintiff cannot reccver on his contract theory unless

he shows that the recruiter had the actual authority

to make the statements on which plaintiff says he re-

lied. Housing Corp. of America v. United States, 199

Ct. Cl. 705, 468 F.2d 922 (1972); Operational Man-

uals, Inc. v. United States, 205 Ct. Cl. 854 (1974).

One who purports to contract with the United States

assumes the risk that the official with whom he deals

is clothed with the actual authority to enter the con-

tract alleged. Federal Crop Ins. Corp. v. Merrill, 332

U.S. 380, 384 (1947); Haight v. United States, 209

Ct. Cl. 698 (1976), cert. denied, 429 U.S.—(45 US.

L.W. 3251 (October 4, 1976)). Moreover, the United

xxvi

States is not estopped to deny the authority of its

agents. California-Pacific Util. Co. v. United States,

194 Ct. Cl. 703, 720 (1971); Putnam Mills Corp. v.

United States, 202 Ct. Cl. 1, 479 F.2d 1334 (1973).

The plaintiff has not proven that the recruiter had

actual authority to make the alleged oral promises or

representations, if he did in fact make them. It is

well settled that the United States is not bound by

its agents acting beyond their authority and contrary

to regulation. Federal Crop Ins. Corp. v. Merrill,

supra; Porter v. United States, 204 Ct. Cl. 355, 496

F.2d 583 (1974), cert. dented, 420 U.S. 1004 (1975) ;

Operational Mamuals, Inc. v. United States, supra.

In the present state of the record, the court is re-

quired to conclude that the recruiter did not make the

alleged promises and representations, or, if he did

make them, he had no authority to do so. In either

case, the plaintiff has no claim for damages for breach

of contract.

After a thorough, careful, and comprehensive re-

view of the facts in this case by the court in view of

the shocking severity of the plaintiff’s injuries, we

conclude that although plaintiff attempts to cast his

complaint in terms of breach of an enlistment con-

tract, the action sounds in tort. This court, pursuant

to 28 U.S.C. § 1491, has no original tort jurisdiction.

Martilla v. United States, 118 Ct. Cl. 177 (1950);

Eastport Steamship Corp. v. United States, 178 Ct.

CL. 599, 372 F.2d 1002 (1967) ; Clark v. United States,

198 Ct. Cl. 593, 461 F.2d 781, cert. denied, 409 U.S.

1028 (1972); Bibbs v. United States, 206 Ct. Cl. 896,

cert. dented, 423 U.S. 985 (1975).

ee

In McCreery v. United States, 161 Ct. Cl. 484, 487-

88 (1963), this court stated:

The claim here is based on misrepresentation by

tke defendant’s officers which the plaintiff relied on

to his detriment. The claim thus sounds in tort.

Restatement of Torts (1938) § 532; Prosser Torts

(1941 ed.) § 87. See also United States v. Neustadt,

366 U.S. 696, 706, fn. 16 (1961). Repeatedly it has

has been held that under the Tucker Act (28 U.S.C.

§ 1491), which defines the general trial jurisdiction

of this court, this court lacks jurisdiction over a

case sounding in tort regardless of how vicious or

malicious the tort may be. * * * [Footnote omitted. ]

The case of Bibbs v. United States, supra, is very

much in point. In that case we held:

* * * Upon consideration thereof and of plaintiffs’

response and of defendant’s reply and of plaintiffs’

response thereto, the court concludes that the motion

should be granted because the action though pleaded

in a contract form is an action sounding in tort

over which this court has no jurisdiction under 28

U.S.C. § 1491 (1970); Martilla v. United States,

118 Ct. Cl. 177 (1950) ; Eastport Steamship Corp. v.

United States, 178 Ct. Cl. 599, 372 F.2d 1002 (1967) ;

Clark v. United States, 198 Ct. Cl. 593, 461 F.2d

781, cert. dened, 409 U.S. 1028 (1972) ; and on the

basis thereof,

IT IS ORDERED that defendant’s motion to

dismiss is hereby granted and that plaintiffs’ peti-

tion be and the same is hereby dismissed. [206 Ct.

Cl. at 897.]

If plaintiff’s claim is based on the act or omission

of the recruiting officer, an employee of the govern-

eee

ment, it would be excluded from coverage under the

Tort Claims Act, 28 U.S.C. § 2680(a) ; Clark v. United

States, supra. Furthermore, under 28 U.S.C.

§ 2401(b), a tort claim against the United States is

barred two years after such claim accrues. This time

period has expired in the instant case. Accordingly,

no purpose would be served by transferring the in-

stant case, under 28 U.S.C. § 1506, to the appropriate

district court which has tort claims jurisdiction for

proceedings under the Federal Tort Claims Act. Even

if the limitation question were not involved and the

case could be transferred to an appropriate district

court, the plaintiff would be confronted with the de-

cision of the Supreme Court in Feres v. United States,

340 U.S. 135 (1950) involving an Army lieutenant

who was killed in a fire in an Army barracks, in

which the court stated at 141:

* * * We know of no American law which ever has

permitted a soldier to recover for negligence,

against either his superior officers or the Govern-

ment he is serving. * * * [Footnote omitted. ]

The court deeply sympathizes with the plaintiff for

the severe injuries he received while serving our

country in the United States Army. However, the

court is without jurisdiction, authority, or power to

grant him any relief. It may be that he could get

help from Congress by way of a Congressional Ref-

erence case, but that is for him to decide.’

1J. Glosser, Congressional Reference Cases in the United States

Court of Claims: A Historical and Current Perspective, 25 Am. U.

L. Rev. 595 (1976).

xxix

We hold that plaintiff’s case sounds in tort and not

in contract, and that we have no jurisdiction of his

case. See 28 U.S.C. § 1491 and cases cited above.

The defendant’s motion to dismiss is granted and

plaintiff’s petition is dismissed.