Brief for the Respondent in Opposition — Schonbrun v. Commanding Officer

Yn the Supreme Gourt of the Wnited States

OcToBER TERM, 1968

No. 1021

STEPHEN FEF’. SCHONBRUN, PETITIONER

Vv.

CoMMANDING OFFICER, ARMED FORCES, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinions of the district court (Pet. App. 46-49)

are unreported. The opinion of the court of appeals

(Pet. App. 37-45) is reported at 403 F.2d 371.

JURISDICTION

The judgment of the court of appeals was entered on

November 7, 1968. The petition for a writ of certiorari

was filed on February 5, 1969. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

(1)

335-644—89

2

QUESTION PRESENTED

Whether the courts below properly declined to over-

turn the refusal of the Army te grant a member vf the

ready reserves an exemption from active duty on the

basis of personal and community hardship.

STATUTES AND REGULATIONS INVOLVED

10 U.S.C. 271; 10 U.S.C. 673; 32 C.F.R. 125.3; 32

C.F.R. 126.3; Army Regulation 601-25 are set forth in

the Appendix, infra, pp. T-12.

STATEMFNT

Petitioner enlisted in the Army reserves on July 28,

1963, for six years. Less than one month before his

unit was activated in May 1968, he sought an exemp-

tion from active duty pursuan: to an Army regulation

which authorizes such exemption because of “extreme”

persona! or community hardship. His claim of ‘‘ex-

treme persona! hardship” was that his wife was suf-

fering from a psychiatri: diserder anc that her well-

being required his presence in the heusehold (Pet.

App. 60-62). The claim for “extreme community hard-

ship’”’ was based on the fact that he was teaching a

class of tan severely disturbed children in an under-

privileged area (Pet. App. 56-52). He was given a 30-

day extcision while his application was under con-

sideration. Upon Jearning that his commanding officer

had denied his request, petitioner appealed and sub-

mitted additional evidence (Pet. App. 71-78). On

June 19, 1968, he was notified that the appeals board

had denied him an exemption on the ground that *e«

“did not meet the criteria for exemption from in-

voluntary call to active duty as established in AR

001-25” (Pet. App. 40, 87).

When an application for reconsideration (Pet. App.

79-83) was denied (Pet. App. 84), petitioner filed

suit for habeas corpus in the district court. After two

hearings, the district court denied the writ. It ac-

ceptod petitioner’s representations, but concluded that

the weighing of the hardship to the community and

to his wife as against the needs of the armed forces

“is peculiarly the kind of decision that must be made

by the military” (Pet. App. 47).

The court of appeals unanimously affirmed.’ It

stated that the “‘very purpose of a ‘ready reserve’

is that the reserve should be ready” (Pet. App. 48);

that “[a]lthough Schonbrun’s case is appealing * * *

the courts must have regard to the flood of unmeri-

torious applications that might be loosed by such in-

terference with the military’s exercise of discretion

aud the effect of the delays caused by these in the

efficient administration of personnel who have volun-

tarily become part of the armed forces” (Pet. App.

44); and that “this is a subject on which civil review

of discretionary action by the military should be

declined”’ (#bid.).*

* Although the court expressed some doubt as to whether

habeas corpus would be availeble to a reservist challenging an

order requiring him to report for active duty as opposed to

seeking a discharge, it recognized that the district court “was

free to treat the petition as one for mandamus under 28 U.S.C.

1361” (Pet. App. 42) and therefore reached the merits.

*On December 23, 1968, Mr. Justice Harlan denied peti-

tioner’s application for a stay of the court of appeals’ man-

date, and on January 13, 1969, the full Court (Mr. Justice

Douglas dissenting) denied reconsideration. The Army has ad-

vised that petitioner entered on active duty on March 4, 1969.

4

ARGUMENT

Petitioner voluntarily enlisted in the ready reserve

and does not challenge the activation of his unit.

He claims only that the Army should have exempted

him from the call to active duty because of alleged

extreme community and personal hardship. As both

courts correctly held, however, that is a determina-

tion that peculiarly calls for and thus lies within the

expert judgment of the military authorities, since it

requires balancing the asserted community and per-

sonal hardships which would result from the indi-

vidual reservist’s entry on active duty against the

needs of the armed forces—an evaluation that must

consider, among other things, the reservist’s place in

the integrated functioning of his unit.

This case is thus different from Hammond vy. Len-

fest, 398 F. 2d 705 (C.A. 2), and United States ex

rel. Mankiewicz v. Ray, 399 F. 2d 900 (C.A. 2), upon

which petitioner relies (Pet. 9-15). Those cases in-

volved reservists who sought to be discharged on the .

ground they were conscientious objectors and did not

present the problem of balaneing the needs of the

military against claimed hardship to an individual

reservist and the community. As the court of appeals

explained the distinction (Pet. App. 43-44) :

In contrast to the yea or nay character of en-

titlement to the ecnscicntious objection exemp-

tion, administration of the hardship exemption

necessarily involves a balancing of the indi-

vidual’s claims against the nation’s needs, and

the balance may differ from time to time and

from place to place in a manner beyond the

| ompetence of a court to decide.

The court of appeals correctly recognized that the

proper utilization of men who have voluntarily joined

the military forces requires that this balancing be left

to the sound discretion of the military. Cf. Orloff v.

Willoughby, 345 U.S. 83, 92-95.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

Erwin N. GRIswo.p,

Solicttor General.

Wittram D, RvuckKeELsHavs,

Assistant Attorney General.

Aan S. RosEentTHAL,

RaupH A, Fine,

Attorneys.

Marcu 1969.

* Although petitioner contends (Pet. 16-24, 25-27) that the

Army committed various procedural errors in denying peti-

tioner’s claim for exemption from active duty, the short an-

swer is that the court of appeals found (Pst. 45) that the

alleged errors had not prejudiced him, and he makes no show-

ing here of any actual prejudice.

. wc f°

e. * wf

APPENDIX

10 U.S.C, 271. Ready Reserve: continuous screening.

Under regulations to be prescribed by the President,

each armed force shall provide a system of continuous

screening of units and members of the Ready Reserve

to insure that—

= SI z 2 =

(5) members whose mobilization in an emer-

gency would result in an extreme personal or

community hardship are not retained in the

Ready Reserve.

10 U.S.C. 673. Ready Reserve.

(a) In time of national emergency declared by the

President after January 1, 1953, or when otherwise

authorized by law, an authority designated by the

Secretary concerned may, without the consent of the

persons concerned, order any unit, and any member

not assigned to a unit organized to serve as a unit,

in the Ready Reserve under the jurisdiction of that

Secretary to active duty (other than for training)

for not more than 24 consecutive months.

(b) To achieve fair treatment as between members

in the Ready Reserve who are being considered for

recall to duty without their consent, consideration

shall be given to—

(1) the length and nature of previous serv-

ice, to assure such sharing of exposure to

hazards as the national security military

requirements will reasonably allow ;

(2) family responsibilities; and

3) employment necessary to maintain the

national hea!th, safety, or interest.

(7)

The Secretary of Defense shall prescribe such policies

and procedures as he considers necessary to carry

out this subsection. He shall report on those policies

and procedures at least once a year to the Committees

on Armed Services of the Senate and the House of

Representatives.

& 2 = * =

32 C.F.R.:

§ 125.3 Regulations for screening the Ready Reserve.

Screening of the Ready Reserve shall be conducted

in accordance with the provisions of Section 271, Title

10, United States Code.

# = * * *¥

(b) Extreme hardship. Members of the Ready

Reserve whose call to active duty in an emergency

would result in extreme personal or community hard-

ship as defined by the Secretary of Defense shall,

upon request, be transferred to the Standby Reserve.

Reservists shall be informed of the fellowing defini-

tions of hardship:

(1) Extreme personal hardship. An _ individual

desiring transfer from the Ready Reserve to the

Standby Reserve must establish by documentary evi-

dence that his dependents would, by his call to active

duty in an emergency, suffer extreme hardship great-

er than that which dependents of other Reservists

can be expected to experience from the Reservist’s

order to active duty. In order to insure a uniform

standard, the criteria established by the Service

should conform generally with current Selective Serv-

ice regulations on extreme hardship deferment. In

those cases where the reservist is registered with

Selective Service, documentary evidence may include

a recommendation by the State Director of Selective

8 ho SA RA Ir Si RO nc hae eA AO OB a SRE OVIS RG WIA! —— N

9

Service of the State in which the registrant’s Local

Board is located. Requests for consideration under

this paragraph must be initiated by the Reservist or

by his dependents.

(2) Extreme community hardship. An individual

desiring transfer from the Ready Reserve to the

Standby Reserve must establish by documentary evi-

dence that his withdrawal from the community in a

national emergency would have a substantially ad-

verse effect on the health, safety or welfare of the

community. In those eases where the reservist is reg-

istered with Selective Service, documentary evidence

may include a recommendation by the State Director

of Selective Service, of the State in which the regis-

trant’s Local Board is located. Requests for consider-

ation under this paragraph must be initiated by the

Reservist.

SS = = * *

Parr 126—Reapy Reservists [INVOLUNTARILY ORDERED

vo Active Duty: Dray, ExEMPTION, AND EARLY

RELEASE

§ 126.3 Policy.

(a) Sereening. The screening of Ready Reservists

will cease when they have been alerted for involuntary

order to active duty. Ready Reservists who have been

alerted for involuntary order to active duty will con-

tinue to be screened in accordance with Part 125 of

this Subchapter B.

(b) Delay or exemption. (1) Ready Reservists who

have been alerted for involuntary order to active duty

may request delay or exemption if they are—

* * & * *¥

ry) 3

bod

(5 GAO A MN pill AL Ble lo hile: el

hol et A EE Hat ide BEATS

an

OD tiiattni i, Gaerne nods of eto

(iti) Ready Reservists whose involuntary order to

active duty would result in an extreme personal or

community hardship; or

= . * z Ss

(3) Request for delay or exemption from a member

of the reserve forces involuntarily ordered to active

duty will be considered on the merits of the individual

case and the requirements of the services concerned.

Such requests will be submitted through the military

chain of command prescribed by the military depart-

ments. Final decision in all cases of appeal is vested in

the Secretaries of the military departments concerned

or their designated representatives.

* * Sd * &

Army Regulation 601-25:

3-2. Delay and exemption policies.

***b** * (3) * * * Delay or exemption of all

Ready reservists, other than those described in (1) and

(2) above, is authorized in accordance with either of the

following criteria:

(a) In exceptional cases when the involun-

tary order to active duty will result in an ex-

a3) personal or commurity hardship (para

1-12) ;

= = * * =

“1-12. Criteria for hardship conditions.

a. Extreme personal hardship.

(1) Illness of a member of immediate family.

When, in the opinion of the attending physician, the

illness of the member is such that—

(a) Fatality appears to be imminent; or,

(b) Presence of the reservist is an important

factor in the recovery of the patient and his im-

mediate departure would have a serious effect

upon the patient.

nee one ition am

11

b. Extreme community hardship. In general, this

requirement will be met only when all of the following

conditions are determined to exist:

(1) The service performed by the reservist

is essential to the maintenance of health, safety,

or welfare of his community.

(2) The service cannot be performed by

other persons residing in the area concerned.

(3) The reservist cannot be replaced in the

community by another person who can per-

form such services.”

3-11. Action on requests for delay or exemptions.

a. Requests will be considered only upon written

application submitted by the member concerned. Re-

quests which do not contain the complete information,

documentary evidence, and other required data will be

returned to the individual with specific indication of

the additional information desired.”’

* * * * *

(c) Requests for delay or exemption submitted on

the basis of extreme personal or community hardship—

(1) May be considered when the extreme

personal or community hardship condition oc-

curs net more than 6 months prior to receipt

of alert or active duty orders.

(2) May not be considered when such hard-

ship condition existed at the time applicant sub-

mitted DA Form 1140-1 (Army Reserve Status

Verification Questionnaire) as prescribed in

AR 140-25, whichever is the more recent, and

applicant failed to request transfer from the

Ready Reserve by reason of hardship.”

3-14. Action by area commanders and CO,

USAAC, and CO, USARCPC. The commander hav-

ing responsibility for the administration of delay and

exemption procedures over USAR members under

their jurisdictional control will take the actions out-

lined below on requests for delay or exemption sub-

mitted by such members.

NEARY SLI MEAT 2 YL EY TAN REY . LNT RE CIE ROME SEE SPEER

LAO ee ee Me PPR ee OD eT)

12

a. Notify the reservist of the decision rendered on

request for delay or exemption.

b. When the request is denied, notify the member

of such denial and reason therefor, together with his

right to appeal such decision.”’

3-15. Appeals. |

a. General. Appeals for reconsideration of denial

of requested delay or exemption may be considered

when the member can furnish additional evidence

which may warrant further review of his original

request. When the basis of the appeal is for reasons

other than furnished in the original request, such re-

quests will be processed as an initial request for delay

or exemption.

Se ee ee ae