Petition for Writ of Certiorari — Moxey v. Seely
Supreme Court brief1974
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—TOPR... CORT. OS
IN THE
Supreme Court of the United States
é
October Term, 1973
TODD G. MOXEY, Petitioner
v.
EDGAR C. SEELY, JR.
and
SECRETARY OF DEFENSE, Respondents
Petition for Writ of Certiorari
to the United States Court of Appeals
for the Third Circuit
Pee ee ry reorr
RUCHAEL bie
JOHN DAVID EGNAL
Attorney for Petitioner
EGNAL and EGNAL, P.A.
1315 Walnut Street
Philadelphia, Pa. 19107
THE LEGAL INTELLIGENCER, 66 NORTH JUNIPER STREET, PHILA., PA. 18107
REE RODMAN TIE TE A PARTE MER ERI
TABLE OF CONTENTS
Page
Opinions Below ............. Sa pe ]
RR NS ag a eee ies 2
Questions Presented for Review .......... he 2
Statutes and Constitutional Provisions Involved .... . 3
Seatemment of the Case ....................%. 4
Reasons for Granting the Writ .................... 7
I et tee Og ecto Ve eh 25
TABLE OF CITATIONS
Federal Cases:
Bell v. United States, 349 U.S. 81, 75 S.Ct. 62 (1955). .24, 25
Bluth v. Laird, 435 F.2d 1065 (4th Cir. 1970)
Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045 (1953)... .9, 23
Crotty v. Kelly, 443 F.2d 214 (1st Cir. 1971) ......... 14
Goldberg v. Kelly, 397 U.S. 254(1970).............. 14
Greene v. McElroy, 360 U.S. 474(1959) ............. 14
Gonzales v. United States, 348 U.S. 407(1955) ....... 14
Harmon v. Brucker, 355 U.S. 579, 78 S.Ct. 433 (1958) . fe)
Hemans v. United States, 163 F.2d 228 (‘6th Cir.), cert.
erase. Sas US O08 (1987)... .... ....... io< ae
Keister v. Resor, 462 F.2d 471 (3d Cir. 1972) ........ 8, 24
Mellinger v. Laird, 339 F.Supp. 434(E.D. Pa. 1972)... 7
Morse v. Boswell, 393 U.S. 802, 89 S.Ct. 41 (1968) .... 7
O'Mara v. Zebrowski, 447 F.2d 1085 (3d Cir. 1971) . . .8, 12,
16, 23, 24, 26
Orloff v. Willoughby, 345 U.S. 83. 73 S.Ct. 534(1953). 8
i
OPA MISE PRGA LLIN, MUS LAT OT peaeegtry ROM
Bereen ,
TABLE OF CITATIONS— Continued)
Federal Cases: Page
Rosengart v. Laird, 449 F.2d 523 (2d Cir. 1971) .. 2...
Ryan v. Barkley, 342 F.Supp. 362; E.D. Pa. 1972)... ..
Slettehaugh v. Tarr, 322 F.Supp. 180; D. Minn. 1971) .
United States ex rel. Armstrong v. Wheeler, 321
Pte. 473 (Ee Pa. BR) 2. oo oie eee
United States ex rel. Checkman v. Laird, 469 F.2d
rege Vi Et as. RRR eh ee eee eee nes
United States v. Wallen, 315 F.Supp. 459 (D. Minn.
MU hori Cea ee Oran he hueeteae on ae eas
MRE hen aka a ear eine ea soma
Other Cases:
Coonan v. Commanding Officer 5 SSLR 3603 (‘E.D.
UN. GR rs eh ee nee st eee Sor aa
Hamilton v. Flanagan, 5 SSLR 3453 (D. Kan. 1972)...
Higbee v. Laird, + SSLR 3555 (D. N.J. 1971) ........
Silvey v. Resor, 5 SSLR 3357 (N.D. Ohio 1971) .......
United States ex rel. Iberg v. Laird, 5 SSLR 3291 (N.D.
a een cee ee ae ee
United States ex rel. Scott v. LaFrance, 4+ SSLR 3493
Oa SR IED se, ee egret
Wright v. Laird, 4+ SSLR 3656 (N.D. Cal. 1970) 18,
Statutes:
ee ee ES Secs ee ate ee ee nas
ee es Re ks el eee eee oats wis
er ee ani Stale a enue ty
AS aS. ARATE a hen ne Sac oe ar a edt ty a
Statutes:
10S. 3
1OULSC. §
10 U.S.C. §
ae USC. $9)
Rules:
Rule 36a). F. R. Civ. P. .
Other Authority:
United States Constitution, Fifth Amendment... 3
Sa i ete coe
ili
IN| THE
Supreme Court of the United States
October Term, 1973
TODD G. MOXEY, Petitioner
v.
EDGAR C. SEELY, JR.
and
SECRETARY OF DEFENSE, Respondents
Petition for Writ of Certiorari to the
United States Court of Appeals for the
Third Circuit
OPINIONS BELOW
The opinion of the district court in support of its
order granting the respondent's motion for summary
judgment is unreported, and appears at pages A44-A53 of
the appendix to this petition. The judgment order of the
Third Circuit Court of Appeals, affirming the district
court’s decision, is reflected at 485 F.2d 680 (table) and
appears at pages A55-A56 of the appendix to this petition.
]
)
JURISDICTION
The judgment of the Third Circuit Court of Appeals
Was entered on October 11, 1973: a timely petition for
rehearing was denied on November 7, 1973. The jurisdic-
tion of this Court is invoked pursuant 28 U.S.C. §1254; 1).
QUESTIONS PRESENTED FOR REVIEW
1. What is the scope of the federal courts’ power to
review the actions of the military in subjecting a reservist
to up-to-two years of involuntary active duty for alleged
unsatisfactory participation?
2. Was the petitioner's constitutional right to pro-
cedural Due Process violated—
A. by reason of the military's rejection of his
specific request to see and respond to the adverse
reports placed in his appeal file?
B. by reason of the military's failure to adhere
to the hearing requirements of AR 15-6 which were
applicable at the time petitioner filed his administra-
tive appeal?
C. by reason of the failure of the Army Appeal
Board to give the petitioner's case meaningful con-
sideration, as well as by its use of “canned” findings
of fact”
3. Does the fact that the military has available to it
two different, and far less punitive, methods for dealing
with a reservist who allegedly participates in an unsatis-
factory manner render unconstitutional the use of the
up-to-two-year involuntary activation method?
3
STATUTES AND CONSTITUTIONAL
PROVISIONS INVOLVED
a. U. S. Constitution, Amendment V: “No person
shall be . . . deprived of life, liberty, or property, without
due process of law:”
b. 10 U.S.C. §673a, Ready Reserve: members not
assigned to, or participating satisfactorily in, units
(a) Notwithstanding any other provision of law,
the President may order to active duty any member
of the Ready Reserve of an armed force who—
(1) is not assigned to, or participating satis-
factorily in, a unit of the Ready Reserve: *
(2) has not fulfilled his statutory reserve
obligation; and
(3) has not served on active duty for a total
of 24 months.
c. Army Regulation ( AR) 135-91, €€12, 20
4
STATEMENT OF THE CASE
This action was commenced on October 26, 1971, by
the petitioner, a member of the United States Army
Reserves, seeking relief from an order directing him to
perform involuntary active duty for sixteen months.
The case was disposed of by the district court's grant
of the respondent's motion for summary judgment. In its
opinion in support of that action, the district judge totally
ignored several substantial issues presented by the com-
plaint: and with regard to the issues dealt with in the
opinion, seriously misconstrued and misapplied decisions
of this Court dealing with the proper application of constitu-
tional rights in the military. On appeal, the Third Circuit
affirmed without opinion and denied a petition for rehear-
ing.
FACTS
“Plaintiff enlisted in the Army Reserves on February
18, 1966. He served on active duty for six months in 1966,
and thereafter, fulfilled the required weekend and summer
camp assignments. Plaintiff was due to be discharged from
the reserves in February, 1972.” (Complaint, §6). The basis
for the activation order was the accrual by the petitioner
of “five or more unexcused absences from scheduled unit
training assemblies”,' as follows:
Sunday January 10, 1971 two
Saturday February 13, 1971 two
Sunday February 14, 1971 two
Six
The petitioner was in fact absent from the two drills held
on January 10, 1971; however, he had a “severe cold, as a
result of which he could not attend the training sessions
1. AR 135-91, £12. See the opinion of the district court at
page A47 of the Appendix.
2 ORE
... (Complaint ©10). “On February 13, 1971, Major
Charles E. Mahan, Executive Officer of the plaintiff's Army
Reserve unit, stated to the plaintiff that he. Mahan, believed
that the plaintiff was in fact sick and unable to attend the
unit's training sessions on January 10, 1971.” | Request for
Admission No. 1). Nevertheless, the plaintiff was charged
with unexcused absences for the two drills held on January
10, 1971. The respondents have admitted that “no hearing
was ever afforded plaintiff ~ concerning his claim that he
should have been given excused absences for the two drills
held on January 10, 1971.
Plaintiff did attend the four February drills on the 13th
and 14th, but was given an unexcused absence for each drill
because his uniform was at the cleaners. This resulted from
the fact that when the plaintiff called the unit's headquar-
ters, he was erroneously advised that the February drills
were scheduled for the 20th and 21st.
Following various procedures which will be described.
infra, in detail (during which the plaintiff was denied a
hearing as well as the right to see and rebut the several
adverse reports submitted by his superiors), active duty
orders were issued.
The complaint raised several substantial issues:
Count I — the decisions of the defendants (not
to grant excused absences or equivalent training)
were erroneous, arbitrary and beyond the permis-
sible bonds of discretion available to them
Count II] — the procedures followed by the defend-
ants were illegal in numerous respects: said
illegality resulting from
a. the defendants failure to follow some
of their own regulations:
2. The version of AR 135-91 in effect when the plaintiff
commenced his appeal provided that the hearing procedures of
AR 15-6 were applicable, and the defendants admittedly did not
follow AR 15-6. Nor did the defendants follow that portion of AR
6
b. the illegality of other regulations which
were followed;3 and
c. the absence of any regulation to cover
certain aspects of the appeal procedure.
Count II] — the availability to the defendants of
other procedures for dealing with the alleged mis-
conduct of the plaintiff. which procedures (under
the Uniform Code of Military Justice) embody
minimal guarantees of due process, renders un-
constitutional the defendants reliance on the
up-to-two-year involuntary activation procedure,
under which there is a total lack of due process.
On December 3, 1971, the matter was argued on the
defendants’ Motion for Summary Judgment. On April 7,
1972, District Judge Higginbotham issued an order direct-
ing that the matter be reargued on May 19, 1972, as to
certain specific issues (A42-A43). These issues concerned
the purported November, 1970 amendment to AR 135-91,
€20\e) which eliminated the application of AR 15-6 to the
appeal procedure (see fn. 3, below), as well as the rights that
would be available to the Army if the matter were remanded
to it for reprocessing. On June 27, 1972, Judge Higgin-
botham filed an opinion and order granting the defendants’
Motion for Summary Judgment ( A44-A53). On appeal, the
Court of Appeals for the Third Circuit affirmed without
opinion ( A55-A56).
Note 2—Continued
135-91, ©20(e) which requires “a board of officers to determine
findings and submit recommendations.”
3. The defendants have contended that the applicability of
AR 15-6 to AR 135-91 appeals was terminated in November. 1970
(prior to the plaintiff's appeal). It is plaintiff's position that this
purported amendment of AR 135-91 was illegal in that it was at
variance with AR 310-3, which governs the amendment of other
Army regulations.
4. The regulations are silent with respect to the right of a
reservist to see and respond to the adverse reports which are
placed in his file and which form the basis of a decision to deny
his appeal.
es eee Lee
REASONS FOR GRANTING THE WRIT
I. The decisions of the defendants (not to grant excused
absences or equivalent training) were erroneous, ar-
bitrary and beyond the permissible bounds of dis-
cretion available to them.
The federal courts, in recent years. have had numerous
occasions to review military decisions involving individual
reservists> in two distinct areas—the denial of an appli-
cation for discharge (usually based on the reservist’s claim
that he had become a conscientious objector)* and the
denial of a request for relief from an involuntary activation
order.* Both types of decision are basically subject to
discretionary standards: neither can be dealt with on the
basis of precise criteria.
In the conscientious objector discharge cases, the
courts have had no qualms about imposing severe limita-
tions on the military's exercise of its discretion. In fact.
many of these cases create the impression that the federal
courts are empowered to undertake a de novo review of the
reservist’s application for discharge.* By contrast, in the
5. It must be emphasized that this case does not involve
the activation, for military reasons, of an entire unit. Cf. Morse
v. Boswell, 393 U.S. 802. 89 S.Ct. 41 and 709 (1968) (Douglas.
J., dissenting).
6. For an expanded discussion of the scope of judicial review
in conscientious objector discharge cases, see United States ex rel.
Checkman v. Laird, 469 F.2d 773 (2d Cir. 1972). In 1972, there
were 42 reported cases involving CO discharges. 12 by reservists
and 30 by men on active duty.
7. Most of the involuntary activation cases are collected in
footnote 1 of Mellinger v. Laird, 339 F.Supp. 434. 437 (E.D.Pa.
1972).
8. See, e.g.. United States ex rel. Iberg v. Laird, 5 SSLR 3291
(N.D.Il. 1971) (court reviews and rejects numerous reasons stated
by the appeal board in support of its denial of the discharge. in-
cluding its finding that the applicant was not sincere): Silvey v.
Resor, 5 SSLR 3357 (N.D.Ohio 1971) (“the record has been
searched for any facts to support the Review Board's conclusion”
8
area of involuntary activation, the federal courts seem to
have turned their backs completely on the reasonableness,
or even correctness, of the military decisions,® and have
concerned themselves only slightly with the legality of the
procedures followed by the military.'”
The line of cases discussed above, involving the refusal
to review decisions to activate reservists, rests entirely on
this Court's opinion in Orloff v. Willoughby, 345 U.S. 83,
73 S.Ct. 534 (1953). It is submitted that the courts below
have seriously misconstrued Orloff.
Orloff involved an attempt by an Army doctor to have
the federal courts tell the military what his duty assignment
should be. Clearly, Orloff correctly held that the courts had
no business interfering, at all, with such an internal matter.
In so doing, this Court did not in any way suggest that its
holding should be read as broadly as was done by the courts
below. In fact, in discussing the role of the judiciary vis-
a-vis the military, the Orloff Court stated:
“While the courts have found occasion to deter-
mine whether one has been lawfully inducted and is
therefore within the jurisdiction of the Army and
subject to its orders, we have found no case where this
Court has assumed to revise duty orders as to one
lawfully in the service.” 345 U.S. at 94.
Note 8—Continued
denying the discharge); Hamilton v. Flanagan, 5 SSLR 3453 (D.
Kan. 1972); Coonan v. Commanding Officer, 5 SSLR 3603
(E.D.Wis. 1972).
9. “It is a well established principle that the federal courts
will not review the discretionary decisions of the military authori-
ties made within their valid jurisdiction.” O'Mara v. Zebrowski,
447 F.2d 1085, 1087 (3d Cir. 1971); Keister v. Resor, 462 F.2d
471, 474 (3d Cir. 1972). See fn. 2 of the opinion of the district
court, at page A47.
10. While the Third Circuit, in O'Mara, stated that it had
the power “to review procedures employed by the military to de-
termine if they comport with the requirements of procedural due
process. . . .” (p.1088), it went on to state that “(t]he procedure
of AR 135-91 unquestionably could be improved. . . . It is not
our function to decide what is best for enlisted reservists.” (p.1090)
In the context of the present case, the issue—whether
the plaintiff is subject to activation—is much more akin
to the issue of whether one has been lawfully inducted than
to what his correct duty assignment should be.'! In the
conscientious objector discharge cases, the military makes
a decision which affects whether a man will fulfill his
obligation in the military (on active duty or in the reserves)
or by performing alternative service as a civilian. If the
decision is adverse to the applicant, he can turn to the
federal courts for meaningful review (see fn. 8, supra). In
the reservist activation cases, the military makes a decision ~
which affects whether a man will fulfill his obligation to ©
the military in the reserves or on active duty. Especially
because there are so few safeguards surrounding the proce-
dure which leads to activation, it seems unconscionable
for the federal courts to deny any review. Clearly, such a
result is not required by Orloff and would seem to run
counter to this Court’s decisions in Burns v. Wilson, 346
U.S. 137, 73 S.Ct. 1045 (1953) (scope of federal judicial
review of military decisions depends on the extent to which
the military “has dealt fully and fairly with” the issue); and
Harmon v. Brucker, 355 U.S. 579, 78 S.Ct. 433 (1958)
(federal court has the power to review the character of a
military discharge). The involuntary activation procedure —
is an anomaly, even under the military's system of justice. |
Now that the pressures of the Indochina war have eased =
substantially, it would seem to be an appropriate time to =
deal with the “short shrift” treatment which this very =
serious group of cases has received by the lower federal *
courts.
In any event, even under the existing state of the law,
there must be a point at which a court can say that the ©
military has abused its discretion. See Bluth v. Laird, 435
F.2d 1065, 1071 (4th Cir. 1970) (military decisions can be
overturned if “a clear and unequivocal abuse of discretion
11. See footnote 5, supra.
10
has been demonstrated”). A review of the facts suggests
that this case involves such a “clear and unequivocal abuse
of discretion.”
The six absences charged against the plaintiff can be
dealt with in two groups—the first two and the last four.
The first two (January 10, 1971) were based on the
plainuff‘’s absence on that date from the unit training
assemblies.'? However, a medical excuse was offered,
and the question here presented is whether the defendants’
rejection of that medical excuse was a “clear abuse of
discretion.”
The pertinent facts in this regard are as follows.
During the period in question, the plaintiff's unit was
subject to a specific administrative directive entitled,
“Reporting Absence Due to Illness.” The plaintiff followed
the provisions of this directive, in that he attempted to
report his condition to the unit. However. his one oppor-
tunity to call went unanswered (Complaint 10).'
Plaintiff related the foregoing events to his unit's executive
officer (second in command), Major Mahan, on the next
date for which a training assembly was scheduled | Febru-
ary 13, 1971). On that date, Major Mahan stated to the
plaintiff that “he, Mahan, believed that the plaintiff was in
12. The other four absences were accrued during ihe weekend
of February 13 and 14, 1971, and were based on the fact that the
plaintiff was not in uniform when he attended those drills. The
explanation offered by the plaintiff was that he was told the Feb-
ruary drills were to be held on the 20th and 21st. and that on the
13th and 14th, his uniforms were at the cleaners. While the plain-
tiff feels that under these circumstances, the awarding of four
unexcused absences was unjust and a clear abuse of discretion.
the abuse is not as clear as that which was committed with respect
to the January 10, 1971 absences.
13. The plaintiff lived in an apartment by himself, and had
no telephone. His only access to a phone on that date was in the
luncheonette below his apartment, which is not normally open
on Sunday. Plaintiff was only able to make one call, when the
owner came in briefly, to do some cleaning (Complaint, €10).
DY ORT A BD
1]
fact sick and unable to attend the unit's training sessions
on January 10, 1971.7"
Under these circumstances, it is completely unjusti-
fiable for Mahan (‘apparently the effective decision-maker
in the unit) to charge the plaintiff with unexcused absences.
Especially in view of the lack of any hearing or meaning-
ful appeal procedures, it is imperative that the federal
courts undertake at least a minimal review of the basic
decisions which led to the activation.
II. The activation of the plaintiff resulted from numerous
procedural defects and irregularities.
For some reason, the district court stated in its opinion:
“Private Moxey does not make the claim, clearly
within the jurisdiction of a court, that the Army
violated its own regulations. His claim is that the
regulations themselves are invalid.” ( A48, fn. 3)
Such an assertion is incredible and is completely contra-
dicted by the complaint and the briefs filed in the district
court. All of the issues raised on appeal, several of which
involve the claim that the Army violated its own regula-
tions, were made in the district court.
A. The appeal procedure employed by the defendants
was constitutionally deficient by reason of a failure to
permit the plaintiff to respond to three separate documents,
' adverse to him, which were placed in his file.
As noted earlier, the procedures made available to the
plaintiff, as he sought to contest the involuntary activation,
did not include any type of hearing. This lack of a hearing
is challenged later on in the brief as being in violation both
14. Request for admission No. 1. The defendants’ answer to
this request, that they “are without sufficient information to
respond’, is clearly insufficient under Rule 36(a), F.R.Civ.P.
PETE Vea Pe OL MAT OR LO
12
of Army regulations as well as minimum due process
requirements. In a different “factual context”, the Third
Circuit found that the absence of any hearing was not
unconstitutional. O'Mara v. Zebrowski, 447 F.2d at 1089.
In so ruling, the court noted the availability of “an appeal
in which the reservist has an opportunity to ‘explain those
facts pertinent to his case which he feels were not fully
considered, and *** include any additional appropriate
evidence ***’ Army Reg. 135-91/20) (a).” (emphasis added )
All of the pertinent documents from the appeal file
are reproduced in the Appendix. They include several letters
written by the plaintiff ( A8-A28) as well as three documents
prepared by the defendants: a purported factual summary,
signed by Major Mahan and two sergeants, dated February
14, 1971 (Al-A2); a five page response by Captain Seely
dated June 10, 1971, to the plaintiff's several appeal letters
(A29-A33): and a three page recommendation on behalf
of the Commander of the First United States Army, dated
August 11, 1971 ( A36-A38). None of these three documents
was seen by the plaintiff until after the final action by the
Army (see A35), yet the documents contain many factual
assertions which are not true, assumptions which are not
true, and arguments which the plaintiff did not know were
being used and which his appeal letters do not anticipate.
For example, the February 14th summary, while
containing a substantially accurate factual recital of some
of the events of that weekend, ends with an inaccurate
value judgment:
“The attitude of PVT Moxey and appearance of
uniform, in the opinion of the undersigned, is a definite
factor in morale and discipline, and affects other
members of this unit.”
The June 10, 1971 memorandum by Cpt. Seely con-
tains a point by point rebuttal of the plaintiff ‘s arguments.
With regard to the January 10, 1971 absence, Cpt. Seely
states “that a doctor's excuse is required for illness... .”
(A29, €2.b). The Captain totally ignores the impact of the
units administrative directive. which eliminates the need
for doctors excuses see request for admission 4). In €2.c,
dealing with the plaintiff's error as to the February drill
dates. Cpt. Seely asserts that “it is contrary to human expe-
rience for a person not to read a letter that arrives by way
of ‘registered mail. ~ This is an observation which the
plainuff should have been permitted to rebut. since the
registered letter in question deals basically with unexcused
absences. and the notification of the next meeting date
appears at the end of the letter. Furthermore. €2.c chal-
lenges the plaintff’s contention that he was misadvised,
by telephone. of the meeting date. since he failed “to
identify the person at the reserve center who allegedly
mislaid [sic] him. . . .~ A30). Cpt. Seely claimed “that
the AST’s always identify themselves when answering the
phone, are verv competent, and know when assemblies are
scheduled.” Id.) Had the plaintiff been given an oppor-
tunity to respond. he would have noted that the AST’s,
when identifving themselves. speak at a blinding and
unintelligible speed. and that while they may be competent,
three different units drill at Norristown and even compe-
tent AST’s can make mistakes. The final portions of €2.d
A31) deal with a hitchhiking incident which occurred
after the activation procedures were initiated and which
is irrelevant, and a categorically untrue, slanderous charge
that the plaintiff “has been known to use the name of Mavor
Caiola carelessly and without authorization.”
The August 11, 1971 report from the First Army offers
three points in support of its negative recommendation.
Paragraph 3.a A36) deals with the January 10th medical
excuse, and as in the case of Cpt. Seely’s report, totally ig-
nores the effect of the unit's administrative directive. Para-
graph 3.b reiterates the points. discussed above, in connec-
tion with €2.c of Cpt. Seely’s letter. Paragraph 3.c deals
with the plaintiff's claim that his activation constitutes
unequal or discriminatory treatment. While we do not press
the charge of discrimination as a separate issue. it is
interesting that the First Army states. “The claim that a
14
Specialist Yadavia regularly wore civilian clothing to meet-
ings also contains the explanation that the enlisted man
had not been issued a duty uniform.” ( A37). It is significant
that the record contains nothing to substantiate this asser-
tion, and it is believed by the plaintiff to be untrue.
The foregoing discussion should demonstrate, rather
clearly, that the plaintiff in this case was substantially
prejudiced as a result of his inability to see and respond
to the adverse recommendations. Since the appeal regula-
tion gives the plaintiff the right to “explain those facts
pertinent to his case which he feels were not fully consid-
ered,” it seems implicit that the reservist must be given
copies of the adverse reports in order to know what was
and what was not “considered.” In the present case, the
plaintiff made a specific request to see and respond to the
adverse recommendations ( A34). The defendants’ response,
dated August 11, 1971 stated that,
“It has been determined that it would not be
appropriate to provide you with the requested materi-
als at this time. Please be advised, however, that in
the event your appeal is disapproved at the Depart-
ment of the Army level, you will be supplied with a
copy of all documents considered by the appeal board.”
(A35).
The denial of this specific request would seem to be prejudi-
cial procedural error under decisions of this Court such
as Gonzales v. United States, 348 U.S. 407 (1955): Greene
v. McElroy, 360 U.S. 474 (1959); Goldberg v. Kelly, 397
U.S. 254 (1970).
Gonzales involved the denial of an intermediate recom-
mendation of the Department of Justice made to the Selec-
tive Service Appeal Board. In Crotty v. Kelly, 443 F.2d 214
(Ist Cir. 1971), the Gonzales principle was applied to the
intermediate recommendation made to the Army Con-
scientious Objector Appeal Board. There, an Army Na-
tional Guardsman sought relief from involuntary activa-
tion. His application for discharge as a conscientious
15
objector had been denied, and apparently, the involuntary
activation was based upon absences which were admitted-
ly unexcused. The First Circuit rejected the appellant's
theory that the procedure followed in his AR 135-91 appeal
Was prejudicial because he
“did have access to most of the National Guard
files and did know the reasons for his call-up, yet he
made no effort to respond to these reasons. Had he
made an effort to refute the charges against him,
he might have been prejudiced if the investigative
report was not available to him, but not having taken
that initial effort, petitioner has no grounds to com-
plain.” 443 F.2d at 215. (emphasis added)
In the present case, plaintiff did make effort to learn of the
adverse recommendations, he was prepared to respond.
and he did not know the reasons why he was given un-
excused absences for the drills (as opposed to excuses
or equivalent training assignments). See also Ryan v.
Barkley, 342 F.Supp. 362 (E.D. Pa. 1972) (on point).
B. At the time plaintiff appealed the activation order,
the applicable regulation (AR 135-91, 20) provided
that the hearing procedures of AR 15-6 was appli-
cable.
Change No. 6 of AR 135-91, effective as of March 30,
1970, amended the activation procedure by requiring the
review board, in disposing of appeals, to “follow procedures
as set forth in AR 15-6.” (See A59, A58). AR 15-6 provides
for numerous procedural safeguards (see A49).
The drill dates for which the plaintiff has been charged
with unexcused absences are January 10, February 13
and February 14, 1971. The plaintiff was notified on Feb-
ruary 23, 1971, that procedures had been initiated to have
him activated. Although the several letters of appeal sub-
mitted by the plaintiff are undated, it appears that the
typed appeal letters were submitted in early March, 1971
16
and resubmitted during the middle of that month (See
A18). On April 2, 1971, formal notification of the activa-
tion Was mailed from headquarters of the First Army (A6-
A7). This notice stated that the plaintiff had fifteen days
to file an appeal. Presumably, the handwritten appeal
letters were written in response to this notice. In any
event, it is clear that the plaintiff had done all he could
with respect to the appeal prior to June 1, 1971.'5
On June 1, 1971, Change No. 9 of AR 135-91 went
into effect (A60). This change, which was published on
April 8, 1971, eliminated the applicability of AR 15-6 from
the appeal procedure (A58, bottom right).
The defendants contended, and the court below ruled,
that the elimination of AR 15-6 had previously been ac-
complished by an electronic “message change” dated
November 13, 1970 (A61-A62) and reproduced by the First
Army on November 24, 1970 ( A63).
In O'Mara v. Zebrowski, supra, the reservist was
ordered to active duty on March 5, 1970, twenty-five days
prior to the addition to AR 135-91 £20 of the right to an
AR 156 hearing. Furthermore, at no time during the
O'Mara litigation was the March 30, 1970 change before
the courts. Thus, the Third Circuit expressly declined
to rule on the applicability of AR 15-6. 447 F.2d at 1087
fn. 5. It did, however, uphold the action of the army and
the procedures followed “in light of the factual context
of [the] case.” Id. at 1089. Nevertheless, the Court did
observe:
“The procedure of Army Reg. 135-91 unques-
tionably could be improved.” Id. at 1090.
In fact, the procedure had been improved on March 30,
1970, by the addition of §20(e), which provided that the
appeal board procedures would be governed by AR 15-6,
15. The Appeal Board did not act on the plaintiff ‘s case until
September, 1971, at which time, it denied relief (A39-A41). Ad-
mittedly, none of the provisions of AR 15-6 were followed by the
Appeal Board.
and that the “format of the [appeal] board proceedings
will be prescribed by the Commanding Officer, United
States Army Reserve Components Personnel Center.”
It appears, from the opinion in Higbee v. Laird, 4SSLR
3555 (D. N.J. 1971), that the “format prescribed by the
Commanding Officer” was simply that there would be no
hearing. The existence of such a “non-format” is also
suggested by Circular No. 135-7, the Bulletin issued by First
Army Headquarters on November 24, 1970 \ A63). This
Bulletin is actually a reprint of a message from the Office
of Personnel Operations, Reserve Components Personnel
Center (OPO, RCPC), issued on November 13, 1970 ( A61-
A62). Paragraph 1 indicated that there already had existed
a “policy of not authorizing personal appearances .. . .
This is the policy, or “format”, which the court in Higbee
felt was of “dubious” legality, and which plaintiff contends
is clearly illegal.
Paragraph 2 of the “OPO, RCPC message” begins:
“In order to clarify the policy, paragraph 20e, AR
135-91 will be amended by printed change to read as
follows:” (emphasis added)
There then follows the language which did appear in
printed Change No. 9, dated April 8, 1971, with an effective
date of June 1, 1971 (see A60).
If the “OPO, RCPC message” ended with paragraph
2, there could be no question that it was inapplicable to the
present case. However, paragraph 3 of the “message”
states, “The above provisions are effective immediately.”
In view of the introduction to paragraph 2, which
indicates that the “message” contains a proposed amend-
ment, it would seem that paragraph 3 means only that the
proposal is effective immediately. However, even if it was
the intention of the proponent of the message—the Office
of Personnel Operations, Reserve Components Personnel
Center (OPO, RCPC)}—that the change take immediate
effect, plaintiff submits that the OPO, RCPC is without
Qotresreren
15
authority to amend a regulation such as AR 133-91 which
was issued by order of the Secretary of the Army.
Under the Constitution, power to make (and by impli-
cation, to amend) rules for the Army is vested in the Presi-
dent and Congress. At 5 U.S.C. §301, Congress delegated
its power, as follows:
“The head of the Executive department or military
department may prescribe regulations for the govern-
ment of his department . . . .” (emphasis added)
In the case of the Army, this means the Secretary of the
Army; not the Office of Personnel Operations. The record
here is devoid of any purported sub-delegation of rule-
making power by the Secretary to the OPO, but even if such
a sub-delegation were shown, it would be argued that
Congress did not authorize the Secretary to so sub-delegate.
It seems clear, then, that the November 13, 1970
“message” quoted in the November 24, 1970 Bulletin, has
no effect on the plaintiff's case; an additional reason
further reinforces this contention.
AR 310-3 is a regulation that governs the amendment
of other Army Regulations. Paragraph 1-12 sets forth the
criteria governing “Interim changes to DA (Department
of Army) publications.” Interim, or “message” changes may
only be used “in rare instances” and “under the most urgent
circumstances.”
The failure to adhere to the requirements of ©1-12 led
to the invalidation of a purported “message change” in
Wright v. Laird, 4 SSLR 3656 (N.D.Cal. 1970). At issue was
the effect of a message change in the regulation dealing
with conscientious objector discharges. The original regula-
tion provided that if such applications were submitted at
replacement stations, they would be processed at such
stations. By “message change”, the Army provided that
applications filed at replacement stations would not be
considered but would be forwarded, with the soldier, to his
next permanent duty station (normally, Viet Nam). Judge
Wallenberg held that the “message change” was not
19
authorized by AR 310-3, 1-12, and accordingly. he directed
the Army to process the plaintiff's application in accor-
dance with the original regulation.
In the event that the message change under considera-
tion in this case was issued by the Department of the Army
(as opposed to the Office of Personnel Operations ). it would
seem, under the authority of Wright, that it is invalid and
cannot be applied to the plaintiff.
An additional argument supporting the plaintiff's
contention that the message change was not intended as
a change in the regulation is the fact that the transmittal
sheet for Change No. 9 does not show that any message
change has been superseded | A60). Compare the trans-
mittal sheet for Change No. 6 (A59). where a message
change not relevant to this case was superseded. Finally.
the November 13. 1970 message ‘ A61-A62) does not purport
to be an “interim change’—compare the examples set forth
in AR 310-3, fig. 1-1.
The district court completely ignored the question as
to what was intended by the November 13, 1970 message
and it dodged the question whether, assuming an “interim
change” was intended. the Army did or did not follow AR
310-3, €1-12:
“It is clear that the Army's use of the ‘message
change’ procedure indicates a determination by the
Army that the instant change ‘removing the applica-
bility of AR 15-6 to the AR 135-91 call-up procedures )
was considered to be ‘urgent. Thus. a federal court
cannot ‘second guess such a discretionary determina-
tion by the Army as to what is or is not ‘urgent.” | A51-
A52).
Such an extension of the “no judicial review of discretion-
ary determinations” rule is incredible. The issue is a legal
one—whether the purported change in one regulation vio-
lated another. To take this issue out of the scope of judicial
review is to flatly ignore the well-settled rule that courts
Bp eae tare nr
20
can determine whether the Army has followed its own
regulations.'®
It is clear that this issue was not dealt with in Keister
v. Resor, 462 F.2d 471, aff’g, 343 F. Supp. 203 (E.D.Pa.
1971). There, the plaintiff did not question the effect of the
November 13, 1970 message (343 F.Supp. at 208) and
instead, proceeded with the basic “contention . . . that
he is entitled by AR 15-6 to a hearing before his unit com-
mander.” (462 F.2d at 474). In the present case, Moxey’s
contention is that he is entitled by AR 135-91, €20\e) to
an AR 156 hearing before the appeal board.
C. The appeal procedure followed by the defendants was
defective in two respects: the appeal board failed
to give the plaintiff's case meaningful consideration,
and then it forwarded meaningless, “canned” findings
to the Commanding Officer, whose ultimate decision
thus became tainted.
Paragraph 17 of the complaint asserts, “on information
and belief, the appeal board . . . did not in fact give the
plaintiff ‘s case meaningful consideration.” Plaintiff sought
to elicit some of the facts that would relate to this claim,
in interrogatories 5, 6 & 7. The defendants refused to an-
swer questions 5(c), 6 & 7, and stated that the appeal file
answered questions 5a), (b), (d) & (e). Plaintiffs motion
to compel answers to these interrogatories, filed on Novem-
ber 19, 1971, was never acted upon by the court below.
Plaintiff made a further attempt to expand the record
in this regard in request for admission No. 5. The defen-
dants’ answer resolved the fact that the ultimate action
on the appeal is made by the Commanding Officer of the
United States Army Reserve Center (5.a) but left as dis-
puted questions of fact. whether the Commanding Officer
16. At the very least, this issue raises a factual question
that is within the scope of federal jurisdiction and which could
not have been properly disposed of on a motion for summary judg-
ment.
21
reviews the entire file or just the findings and recom-
mendations of the appeal board (€5.b) and whether the
appeal board findings are based on each individual case
or are “canned” findings used in most, if not all cases
{ 5 .¢ ). 17
Since the district court below acted on the defendants
motion for summary judgment, all factual disputes must
be (for purposes of the motion) resolved in the plaintiff's
favor. As such, the present record establishes two clear
infirmities in the appeal process.
First, under the applicable regulation [AR 135-91,
€20\e)], the ultimate decision is made by the Commanding
Officer, on the basis of “findings and . . . recommenda-
tions” submitted to him by the appeal board. Since the
findings submitted by the appeal board in this case are
“canned” and thus meaningless, it is clear that a decision
based on these “findings” would violate the plaintiff's right
to a fair and meaningful appeal.
Secondly, the present record establishes the fact that
the appeal board did not, itself. give meaningful considera-
tion to the plaintiff's case, again an infringement of his
right to appeal.
In sustaining what was acknowledged to be a some-
what unfair procedure, the Third Circuit in O'Mara placed
great emphasis on the right to appeal. The present record
raises very serious questions as to whether that right of
appeal had any meaning. Research has disclosed no re-
servist activation case dealing with these issues. However.
analogous issues have been dealt with in several Selective
Service and conscientious objector discharge cases. These
17. In connection with the “canned” findings issue, there
has been attached to the Appendix the appeal board “findings”
from five other reservist activation appeals. as follows Keister.
A64: Caruso, A66; O'Mara, A68: Mellinger, A69. and Drennen,
A70O. The findings in each case (paragraph 5) are identical, word
for word, with the findings made in the present case (A440).
Neither petitioner nor his counsel is aware of a single case
decided by the AR 135-19 appeal board which did not have the
same, identical findings.
22
cases, set forth in the margin,'* involve appeal boards
condemned for (a) failing to give meaningful considera-
tion, (b) relying on an improper or invalid summary of the
file, and/or (c) use of “canned” findings.
III. The availability to the defendants of other procedures
for dealing with the alleged misconduct of the plain-
tiff, which procedures embody minimal guarantees
of due process, renders unconstitutional the defend-
ants’ reliance on the involuntary activation procedure,
under which there is a total lack of due process.
The plaintiff faces a punishment of sixteen months of
active duty, because he did not appear on one day, and was
not in a proper uniform on two other days. Under the
Uniform Code of Military Justice, the plaintiff could have
been charged under Article 86 (10 U.S.C. §886) with
Absence without leave; Article 92 (10 U.S.C. §892) with
Failure to obey order or regulation; or, perhaps, under
Article 134 (10 U.S.C. §934), the General Article, for “dis-
orders and neglects to the prejudice of good order and disci-
pline in the armed forces . . . .” The maximum penalties
that the plaintiff would have been subjected to, under the
18. The leading selective service case in this area is United
States v. Wallen, 315 F.Supp. 459 (D.Minn. 1970). Other selective
service cases include Slettehaugh v. Tarr, 322 F.Supp. 180 (D.
Minn. 1971); United States ex rel. Scott v. LaFrance, 4 SSLR 3493
(N.D.Ohio 1971); United States v. Weaver, 336 F.Supp. 558 (E.D.
Pa. 1972).
In United States ex rel. Armstrong v. Wheeler, 321 F.Supp.
471 (E.D.Pa. 1970), the present Chief Judge reversed the Army's
denial of an application for CO discharge. At page 479 fn. 13,
Judge Lord noted the CO Appeal Board's use of “a stock paragraph”
and condemned it. See also, Judge Lumbard’s dissenting opinion
in the CO discharge case of Rosengart v. Laird, 449 F.2d 523,
537 (2d Cir. 1971) (“It is fundamentally unfair to set forth inter-
nally contradictory standard phrases in place of sensible reasons
for a decision”), majority opinion vacated, 405 U.S. 908, 92 S.Ct.
931 (1972).
23
UCMJ, are confinement for 1,3 and 1 months, respectively,
and forfeiture of two-thirds pay for the same periods. Under
the UCMJ, the plaintiff would have had the benefit of basic
procedural safeguards, even under the “non-judicial pun-
ishment” provisions of Article 15 (U.S.C. §815). See, e.g.,
Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045 (1953).
A second route available to the defendants for dealing
with the alleged unsatisfactory performance of the plaintiff
would be under the provisions of 10 U.S.C. §270(b). This
section, which was first enacted in 1958 and amended as
recently as 1971, provides that a reservist who does not
perform satisfactorily “may be ordered without his consent
to perform additional active duty for training for not more
then 45 days.”
Under these circumstances, the constitutionality of
the use of the vastly disproportionate 16 month activation
punishment is a serious question. It was raised in the courts
below, but ignored.
In O'Mara v. Zebrowski, the Third Circuit specifically
declined to rule on the claim that the up-to-two-year activa-
tion procedure constituted cruel and unusual punishment.
447 F.2d at 1091 n.25. However, the opinion noted that,
“Although O'Mara seeks to characterize involun-
tary activation as ‘punishment, and thereby magnify
its impact upon him, this characterization does not
fit well, for involuntary activation befalls reservists
who fail or are unable to attend unit training assem-
blies because of a change in residence or job inter-
ference, as well as those who fail to attend without
proper authority.
A footnote at this point continued the thought as follows:
“13. Army Reg. 135-91(5) (b). It is difficult to
believe that the Army has a consistent policy of
‘punishing’ reservists who are unable to attend unit
training assemblies because they move outside the
area in which their unit is located.” 447 F.2d at 1089.
24
The record in O'Mara was completely devoid of any
indication as to how the involuntary activation provisions
were applied. The present record, likewise, contains no
factual basis to support this theory. It is petitioner's belief,
as well as that of his attorney, that the activation proce-
dures are never used against a reservist who moves or
changes jobs, until a substantial period of time has elapsed
(during which, the reservist is given priority in joining a
new unit).
This completely unfounded rationale for concluding
that involuntary activation is not punishment was seized
upon by the District Judge in Keister v. Resor as the basis
for rejecting the “cruel and unusual punishment” argu-
ment. 343 F.Supp. 203, 211-12 (E.D.Pa. 1971). As in this
case and in O’Mara, there was nothing in the record in
Keister concerning the application of the involuntary
activation provision to reservists who move or change jobs.
In affirming Keister, the Third Circuit did not discuss the
cruel and unusual punishment issue, though the opinion
ended with, “The order of the district court will be affirmed
in all respects.” 462 F.2d 471, 475 (3d Cir. 1972).
A reservist is primarily a civilian. His expected com-
mitment to the military, after initial training, is one
weekend per month and two weeks in the summer. Admit-
tedly, a reservist knows that in time of emergency, extended
service on active duty may be required. In such event, the
disruption of one’s career or education and of one’s family
life, as well as the risks to life and limb which attend active
duty in the military, are sacrifices which the reservist will
make. In the absence of the countervailing need created
by a national emergency, involuntary activation amounts
to punishment. For a reservist, it is as severe, if not more
so, than incarceration. The court martial and 45-day activa-
tion procedures represent reasonable methods for dealing
with an allegedly unsatisfactory reservist. Especially since
such reasonable procedures do exist, it is clear that the
up-to-two-year activation is wholly disproportionate to the
offenses and shocking to the conscience. Cf. Bell v. United
eee
25
States, 349 U.S. 81, 75 S.Ct. 620 : 1955): Hemans v. United
States, 163 F.2d 228, 237 ‘6th Cir.), cert. denied, 332 U.S.
801 (1947).
CONCLUSION
The appellant in this case is a member of the United
States Army Reserves. His commitment to the military
consisted basically of six months on active duty, followed
by five and one-half years as an active reservist (training
sessions one weekend per month plus two weeks in the
summer). During the final year of this six-year obligation,
he was ordered to perform sixteen months of involuntary
active duty based upon unexcused absences for three dates
(two meetings per day, i.e. six meetings). On two of the
days (one weekend), appellant was present but not in
uniform due to the fact that both of his uniforms were
at the cleaners; on the third day, he was absent and al-
though his absence was acknowledged by the defendants
to have been caused by an actual illness, he was neverthe-
less charged with an unexcused absence.
In seeking relief from the involuntary active duty
orders, plaintiff raised various issues, including three
specific challenges to the propriety of the administrative
appeal procedure followed by the defendants. In the court
below, only one of these issues was dealt with, the other
two were ignored. !9
19. The district court rejected appellant's contention that
the version of AR 135-91 in effect with the administrative appeal
was taken provided for an appeal hearing pursuant to AR 15-6
(67a-69a). This is issue II-B, discussed at pages 15-20 of this
petition.
The lower court ignored appellant's contentions that he had
- a right to see and respond to adverse reports in his file before the
Appeal Board acted (issue I]-A, pp. 11-15 of this petition), and that
the appeal itself was defective due to inadequate consideration by
the Appeal Board as well as its use of “canned” findings (issue
II-C, pp. 20-22 of this petition).
The Court of Appeals did not deal with any of the issues.
26
In O'Mara v. Zebrowski, 447 F.2d 1085, 1088 | 1971),
the Third Circuit stated:
“We believe that a federal court has jurisdic-
tion to review procedures employed by the military
to determine if they comport with the requirements
of procedural due process in light of the context in
which the procedures operate.”
The basic procedural claim asserted in that case was the
right at some point in the appeal process to a full hearing.
In rejecting that contention, the court seemed to rely on the
existence of a written appeal to sustain the constitutionality
of the overall procedure. At page 1090, Judge Van Dusen
Stated:
“(3] The procedure of Army Reg. 135-91 unques-
tionably could be improved. Determinations of a
rather summary character which substantially affect
individuals are, however, an everyday occurrence
in the military. It is not our function to decide what
is best for enlisted reservists. The challenged pro-
cedure does permit a reservist to take the matter up
with his unit commander, and it also permits an ap-
peal in which the reservist has an opportunity to
‘explain those facts pertinent to his case which he
feels were not fully considered, and * * * include
any additional appropriate evidence. * * ** Army
Reg. 135-91(20) (a). Given the factual context in
which this procedure operates, and the presumption
of constitutionality that attaches to this statutorily
authorized procedure, we are unable to conclude that
the procedure is constitutionally defective.”
(emphasis added, footnotes omitted)
In the present case, the two procedural issues which were
ignored by the district judge raise very serious questions
as to whether the “procedures employed by the military”
“comport with the requirements of procedural due process
in light of the context in which the procedures operate.”
27
The appellant, in this case. is faced with the threat
of a most severe disruption to his life. That disruption is
based upon a determination by the military that his partici-
pation as a reservist was unsatisfactory. The facts, in
this case, raise serious questions as to whether that deter-
mination, made initially by the unit commander. was just
and proper.
The Army purports to make available administrative
procedures for testing the propriety of the unit command-
ers decision to activate the reservist. The record, in this
case, clearly demonstrates the deficiencies and_ short-
comings of these procedures. When the appellant sought
a small dose of fair treatment from the Army (the right
to respond to adverse comments prior to a decision by the
Appeal Board), his plea fell on deaf ears.
Realizing that “determinations of a rather summary
character are an everyday occurrence in the military.”
the appellant turned to the federal courts, which claimed
to have the power (if not the duty) to “review procedures
emploved by the military to determine if they comport
with the requirements of procedural due process... .
In the district court, appellant was not afforded a trial,
and the opinion granting summary judgment to the govern-
ment ignored two of the most important issues raised.
The Third Circuit Court of Appeals affirmed without opin-
ion.
If these issues are without merit, let someone savy why,
for not even the government's briefs in the courts below
did that. If they have merit. then the judgment below
must be reversed. At this point. however. there is clearly
a need to grant this petition, not only to permit a fair and
just disposition of this case. but also to rectify the drift
28
which has occurred in the lower federal courts in this type
of case, away from the principles this Court articulated in
Gonzales, Harmon v. Brucker and Burns v. Wilson.
Respectfully submitted,
a. ae
Sn ee is ue
JOHN DAVID EGNAL
Attorney for the Petitioner
Of Counsel:
EGNAL & EGNAL, P.A.
Suite 600
1315 Walnut Street
Philadelphia, Pa. 19107
-
—s *. - al =
RUPP
Use Fae =
IN THE US: FEB 4
Supreme Court of the United! States...
19/4
im Ry
1 ny bP be
October Term, 1973
No 7$- 1188
TODD G. MOXEY, Petitioner
v.
EDGAR C. SEELY, JR.
and
SECRETARY OF DEFENSE, Respondent
Appendix to Petition for Writ of Certiorari
to the United States Court of Appeals
for the Third Circuit
RPM sy 6 ceOvaL
bdi Wi be ccmds 850 ows tee
JOHN DAVID EGNAL
Attorney for Petitioner
EGNAL and EGNAL, P.A.
1315 Walnut Street
Philadelphia, Pa. 19107
THE LEGAL INTELLIGENCER, 68 NORTH JUNIPER STREET, PHILA., PA. 19107
TABLE OF CONTENTS
Page
l. SELECTED DOCUMENTS FROM EXHIBIT G-1
Statement in support of the defendant, Seely, dated
NEE 3, ch ceh bk sod cara ec Raeaanees eee
Request for Active Duty Orders, dated 2/23/71 ...... A3
Notice to plaintiff of appeal rights, dated 4/2/71 er
Undated, 5-page. handwritten letter from plainuff... A8
Undated, 1-page, handwritten letter from plaintiff... Al3
Undated, statement in support of the plaintiff... .... Al4
Undated, 3-page, handwritten letter from plainuff ... Al5
Undated, 1-page. typewritten letter from plaintiff .... A18
Undated, 10-page, typewritten letter from plaintiff... A19
Reply by the defendant, Seely, to the plaintiff's appeal
ee ee _¢ Rat nh tae reais A29
Undated request by plaintiff for copies of the adverse
statements of his superiors ................... A34
Letter, dated 8/11/71, denying plaintiffs request for
eee ere ere A35
Recommendation of the Commander. First U.S. Army.
EIENEE 305 Sowa occas aioe as te ee A36
AR 135-91 Delay Appeal Board record of proceedings.
BENT Bs i Swe Sf renee cys astee tee A39
II. ORDERS AND OPINIONS OF THE COURTS BELOW
District Court:
Order, fixing reargument as to certain issues, dated
Moa o an ec ae Oey Cp Te eee ees A42
Opinion and order granting the defendants motion
for summary judgment, dated 6/27/72 .......... Ad4
i
TABLE OF CONTENTS— Continued )
District Court: Cont'd Page
Order granting a stay of activation pending appeal ... A54
Court of Appeals:
Judgment Order, dated 10/11/73 ................. A55
Order Sur Petition for Rehearing, dated 11/7/73 .. A57
Ill. SUPPLEMENTAL MATERIALS
AR 135-91, 120 (Appeals) ..................000-- A58
AR 135-91, cover sheet for Change No. 6, dated
ee ot eee a aay ans ou ewe A59
AR 135-91 cover sheet for Change No. 9, dated
NS tree Oe aie ale go Wis wa awe ¥0 0 se A60
Department of the Army message, re AR 135-91, 20
EE cise ce essa civddcseeecews A61
First U.S. Army Circular No. 135-7, re AR 135-91,
a A63
AR 135-91 Delay Appeal Board record of proceedings,
re: |
Richard E. Keister (/82/71) ................-..-- A64
Ratoeeter ©. Casmee (7iseris) ...-- - 20 ee ens. A66
NS A68
Arthur G. Mellinger (5/19/70) ................... A69
Eugene J. Drennen (7/24/70) ................-.-.. A70
Commanding Officer
416th Civil Affairs Company
On 13 February 1971. 0800 hours. PVT Todd G. Moxey.
203-34-2216. a member of this unit. was not present at the
regular scheduled monthly meeting. of which he was cogni-
zant. At 1100 hours. same date a telephone call was made
by Sgt. Bender ‘confirmed by 1SG Rodrique } to this enlisted
man ‘telephone number 272-9850) at his address of record.
155 W. Elm Street. Norristown, Pa. 19401. to question why
he was not present at the drill. On 13 February 1971, 1200
hours, PVT Moxey did report to the Reserve Center, and to
1SG Rodrique, but he was out of uniform. When questioned
by 1SG Rodrique about being out of uniform. PVT Moxey
stated that his uniform was in the laundry. He was given a
“L™ for this meeting ‘0600 hours to 1630 hours. 13 February
1971) and fully advised of this decision by LTC Seely, the
Commanding Officer of the unit. He was again advised that
he would not be given credit for the two meetings scheduled
for this date because he was out of uniform. He acknowl-
edged receipt of the letter being sent to him, by signing the
postal receipt form. This occurred at 1345 hours. A copy of
the letter sent to him was given to him personally by Major
O'Brien. PVT Moxey was then advised by Major O'Brien to
report to the Reserve Center on 14 February 1971. at 0800
hours in proper uniform. On 14 February 1971, at 0800
hours, PVT Moxey was present at the meeting. but in an un-
excusable appearance. Accordingly. he was not given credit
for the scheduled meetings on this date from 0800 to 1200
hours and 1250 to 1630 hours. Although PVT Moxey did at-
\l
HEADQUARTERS 416TH CIVIL AFFAIRS COMPANY
1020 Sandy Street
Norristown, Pennsylvania 19401
14 February 1971
SUBJECT: MOXEY. Todd G. | PVT) 203-34-2216
rere ysercrcn meray cesays: rence eT M FERNY PR TLY ANOLON PABADTIAI TY NE
re Ore et ee
Pe Sr 8 ew ee - = sem ak
A2
tend the meetings scheduled on 14 February 1971, the uni-
form was dirty (covered with mud), unpressed, with a large
slit in the sleeve and with holes in the shirt and pants. The
condition of the uniform was inexcusable. PVT Moxey was
presented to LTC Seely who acknowledged the unexcusable
appearance of this person. 1SG and Major Mahan were in
their presence. The time was presented 0800 hours 14
February 1971. LTC Seely advised PVT Moxey that he
would not receive credit for the morning meeting of this
date, and if he did not return to the afternoon meeting in
proper uniform, he would not receive credit for the after-
noon meeting. PVT Moxey was advised by Certified Mail
sent 14 February 1971 to confirm the unexcused absences
heretofore stated. His records indicated that he had a total
of six (6) unexcused absences as of 14 February 1971, which
is over the authorized limit. LTC Seely further advised him
that proper action will be taken to bring this matter to
higher headquarters. The attitude of PVT Moxey and ap-
pearance of uniform, in the opinion of the undersigned, is
a definite factor in morale and discipline, and affects other
members of this unit.
WITNESS: CHARLES E. MAHAN, MAJ. CA-USAR
PAUL L. BENDER, SGT.
HENRY J. RODRIQUE, 1SG
one. | el Se EE Nee
A3
416TH CIVIL AFFAIRS COMPANY
1020 Sandy Street
Norristown, Pennsylvania 19401
23 February 1971
SuBsect: Request for Active Duty Orders UP AR 135-91
Commanding Officer
304th Civil Affairs Group
Woodhaven and Comly Roads
Philadelphia, Pa. 19154
1. Request that active duty orders be issued on the indi-
vidual named below under the provisions of AR 135-91.
2. I have personally verified the circumstances in this case
and have determined that the administrative requirements
of AR 135-91 have been adequately complied with and that
the individual concerned failed to fulfill the satisfactory
participation requirements of that regulation.
3. The following information is provided:
Full name: MOXEY, TODD GRAY
Grade: PVT E2
Service Number: 203-34-2216
SSAN: 203-34-2216
USAR Unit of assignment: 416th CA Company,
Norristown, Pa.
19401 USARC.1020
Sandy St., UIC:
WRTP AAA.
© oo oP
DOR: 20 July 68
HOR: 155 West Elm St.. Norristown, Pa. 19401
Period of AD requested: 17 Months, 12 Days.
Time previously served on AD, AFT, ACDUTRA:
4 Mos; 18 Days ( AC-
DUTRA) 2 Mos; AT-
Tour (1967-70 Incl.)
= soq mm
A4
PMOS: 70A10:DMCS: 70A10
BPED: 18 Feb 1966
BASD: N/A
m. Authority: 10 USC 673a and paragraph 12, AR
1.
35-91 EDGAR C. SEELY. JR.
LTC, CA-USAR
Commanding
= peo
3 Incls:
1. 201 File (Moxey)
2. Warning Letters of Unex Abs
3. Ltr to CO, 304th CA Gp
TO OD oS S PS ea
416TH CIVIL AFFAIRS COMPANY
1020 Sandy Street
Norristown, Pennsylvania, 19401
23 February 1971
SUBJECT: Unsatisfactory Participation of PVT TODD G.
MOXEY, 203-34-2216
Commanding Officer
304th Civil Affairs Group
Woodhaven and Comly Road
Philadelphia, Pennsylvania, 19154
1. PV2 TODD G. MOXEY, of this unit, has been a constant
problem over the last 1!2 years. He frequently fails to ap-
pear in the prescribed uniform, to present a neat and
soldierly appearance, or to perform his assigned duties in
a satisfactory manner as determined by the Unit Com-
mander. In addition, he has not attended a number of drills.
2. Because of his misconduct and unsatisfactory participa-
tion, he has been reduced in rank.
3. The Commanding Officer, Executive Officer, and First
Sergeant have counselled him on numerous occasions about
his participation and conduct, but to no avail.
4. Letters have been submitted to him concerning his ab-
sences from drills, but it appears that this have no effect
on his cooperation as enumerated above.
EDGAR C. SEELY. JR.
LTC, CA-USAR
Commanding
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DEPARTMENT OF THE ARMY
HEADQUARTERS, FIRST UNITED STATES ARMY
FORT GEORGE G. MEADE, MARYLAND 20755
AHAAG-CA 2 April 1971
Sussect: Order to Active Duty
PVT TODD C. MOXEY
155 West Elm Street
Norristown, Pa. 15401
1. This headquarters had been requested to order you to
active duty for 24 months, less any active duty time you
have served, for unsatisfactory participation in accordance
with AR 135-91.
2. Documentation presented by your unit commander is
complete and this headquarters has requested assignment
instructions from Department of the Army this date. Active
duty orders will be issued in approximately 30 days.
3. If you wish to appeal your order to active duty you must
present a written appeal with documentation to your unit
commander within fifteen (15) days of receipt of this letter.
4. Delay in entry on active duty is authorized only in the
specific cases outlined in paragraph 16, AR 135-91. If you
wish to apply for such a delay, you must immediately pre-
sent a written request with documentation to your unit
commander. Requests for a delay in reporting for active
duty after orders are issued will be considered only for
emergencies, to include illness or injury.
5. You will be required to undergo a complete medical
examination upon reporting for active duty unless you
have undergone a medical examination within the past
12 months and signed a statement that to the best of your
a. ll | cl RIE
AT
knowledge there has been no significant change in your
physical condition. If you are found to be physically dis-
qualified, you will be discharged at the Reception Station.
FOR THE COMMANDER:
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155 W. Elm St.
Norristown, Pa.
Commanding Officer
304th CA Group
Armed Forces Reserve Center
Woodhaven and Comley Roads
Phila., Pa. 1914
Dear Sir:
Attached is a letter concerning a request by the CO
of the 416th CA unit to have me sent away to active duty.
It was originally submitted to you on about Mar. 2nd but
was returned to me on Mar. 12th with a covering letter from
the civilian aide of the 304th (signing for a Capt. Mitkus)
stating that my letter had not been received until Mar. 8th
and my file had been forwarded on Mar. Ist. (Why my letter
wasn't forwarded I don't know) . . . Anyway, I am resub-
mitting the letter to you as the CO of the next higher hqs.
above the 416th and as an attempt to marry this letter to my
file which according to the civilian aide of the 358th CA
unit has been returned to the 304th for some administra-
tive corrections.
Sincerely yours,
Todd Moxey
cares =—_ 5
eS Se Be Fk Se er A TE ate + oe a
A19
155 W. Elm St.
Norristown, Pa.
Commanding Officer
304th CA Group
Armed Forces Reserve Center
Woodhaven and Comley Roads
Phila., Pa. 191544
Dear Sir:
On Feb. 23d. 1 received a notice from the civilian aide
of the 416th CA unit in which the CO of the 416th was re-
questing again that I be sent away to active duty for having
received 5 or more unexcused absences. I had been given
“U"s for MUTA 2 drills on Jan. 10th, Feb. 13th, and Feb.
14th . . . I'd like to describe in some detail the sequence
of events on and between the dates of Jan. 10th and Feb.
14th.
On Sunday, Jan. 10th. | was awakened by my alarm
going off at about 7:15 AM. | had a sore throat. I felt punk.
and my nose was starting to clog up. I hadn't had much
sleep in the previous 4+ or 5 days, and I was dead tired. In
short, I didn’t feel well enough to go to the meeting. and
I went back to sleep. I have no phone where I live. The
phone I use is in a store area downstairs from where I live.
This area is closed on Sundays except on occasions when
the store owner will come in to do some cleanup or repair
work. If he does come, it is never until late morning or early
afternoon. There was no point for me to stay up to 8:00 AM
or to set my alarm for that time to trv to call the unit. |
awoke again that morning sometime between 10:00 AM
and noon. | heard someone roaming around in the store
area, so | went down and placed a call to the unit. No one
answered. | let the phone ring for about 4 or 5 minutes—
figuring someone had to be there. (I don't recall exactly
when I| phoned: it could have been around noon when everv-
one Was eating lunch.) | went back upstairs to bed. A little
while later, I went back down to trv to call again, but the
area Was Closed, and | returned upstairs.
LEELA IE
nts
OLE: ERNE T FE NO
A20
Sometime around the Ist of Feb., I called the reserve
center to find out when the next meeting was and was told
it was the weekend of Feb. 20th and 21st.
On Sat., Feb. 13th about 10:30 AM, I received a phone
call from Sgt. Bender inyuiring why I wasnt at the reserve
meeting. I said | didn't think it was until the following
weekend. He said the meetings were always on the 2nd
weekend of every month. | said that I knew that this was
usually the case but that I'd been informed that the meeting
would be the weekend of the 20th and it seemed feasible
that a change had been made to allow people to take ad-
vantage of a + day weekend. He said no; the meeting was
that weekend. I said I'd be there as soon as possible.
Thinking the meeting wasn’t until the following week.
I had just sent out the decent uniforms I had to the cleaners,
and they were still at the cleaners. The only uniform I had
was an old, dirty one with pants that had ink stains and
holes and a shirt with half one sleeve ripped off. I put on
civilian slacks and a sport coat and went off to the reserve
center. I arrived about 11:00 AM and went upstairs to find
the XO to tell him I'd been sick on the Sun. of the Jan.
meeting and to explain why I was late and why | had on
civilian clothes. I didn’t find him. I went into the personnel
section to sign in. Someone there told me that the Ist Sgt.
wanted to see me. I went downstairs to look for the Ist Sgt..
found him in the drill hall, and said to him that I'd been told
he wanted to see me. He said he'd see me later. | went
upstairs to work on the area study project I was assigned
to.
About 2:00 PM, the Ist Sgt. called me from the room
in which I was working. He told me that I was being given
2 “U's for Sun., Jan. 10th, that I was being given 2 “Us for
that day and would be given 2 more “Us for the following
day if I did not have a uniform on. | told that I had been sick
on Jan. 10th. He asked me why I| hadnt called in. I said that
I had tried to, but when I placed the call, no one answered.
He said there was always someone around to answer the
phone. | said that I thought this was so, but I had let the
Sg eee ae Ao he ead SO
A2]
phone ring for about 5 minutes and no one had answered.
I said mavbe the unit had had a formation or were at lunch.
I then commented that | didn't have any decent uniforms
to Wear. | had thought the meeting wasnt until the follow-
ing weekend. The decent uniforms | had were still at the
laundry. There was nothing else really | could wear. He
then said that I'd been notified that the meetings were this
weekend. I said that I hadn't been so notified. Indeed. when
I had called the reserve center, I was told the meeting
wasnt until the next weekend. He said the letter sent me
indicating that I had been given 2 “U"s for Jan. 10th had
indicated that the Feb. meeting was to be on the 13th and
14th. I said it hadn't. I then asked to see the XO and CO:
he said they wouldnt see me. I said again strongly that I
would like to see the XO and CO. He said no: the decision
was final. He then said to go ahead and leave if | wanted
to.
I had no way home and it was raining. and I didn't
want to stand in the rain to trv to hitch a ride. so I decided
to stay awhile and work on the area study. Furthermore. |
wanted to trv to see the XO or CO. About 15 to 20 minutes
later, the Ist Sgt. came into the room where I was working
with a copy of the letter sent to me indicating I was being
given 2 “U's for Jan. 10th and pointed out that it. the letter.
did indeed indicate that the Feb. meetings were to be on the
weekend of the 13th. I acknowledged my mistake. When |
got the letter. | knew what it was and frankly didn't bother
to examine it to closely. | was never really aware that those
letters included the dates of the next meeting. In the past.
when I received “U's. I was present at the reserve center.
Believing that the “Us were unjustified and being angered
by being given a “U~. frankly I didnt pay too much at-
tention to the content of these formal notices when thev
were given to me. Moreover. since I Was at the reserve cen-
ter when I got a “LU” and since I remained there. I got infor-
mation about the dates of the next meeting the wav | nor-
mally would—by getting a copy of the duty sheet distri-
buted on Sun. afternoons. Furthermore. if anytime I missed
A22
a weekend or a Sun. when these duty sheets were distri-
buted, I'd call the reserve center, which I also did in this
instance. )
I continued to work on the area study for awhile and
then went downstairs. I ran into the XO in the hall. I said
that I was being given “Us for not having a proper uniform;
I didn't think it was fair since | thought the meetings were
not to be until the following weekend and my uniforms
were at the cleaners. He said that the letter sent me in Jan.
indicating I was being given 2 “U”"s for Jan. 10th stated the
Feb. meeting dates as the 13th and 14th. I acknowledged
my mistake. I said though that be that as it may, | still
didn’t have any decent uniforms to wear. There was noth-
ing I could do. Being given 2 “U”s for Sat. and possibly 2
more the next day seemed too harsh a penalty. He said
there was nothing he could do about it. I then mentioned
that I had been sick on Jan. 10th. I had tried to call the unit
that day but had been unable to reach anyone. He asked me
if I had a Dr.’s note. I indicated that I hadn't and said that
I didn’t need a Dr. to tell me I had a sore throat, a runny
nose, that I was dead tired. (Moreover, it didn’t seem to
make much sense to go to see a Dr. unless my cold got
worse; I knew myself well enough and how I react to colds
to know how to take care of myself. Frankly as well, I didn't
want to spend the $5 to $8 unless it were absolutely neces-
sary.) I asked the XO if he would change the “U”s given me
for Jan. 10th. He said he wouldn't. I said that if it were
really essential that he have a Dr.’s written statement, I
could probably get one. The XO started walking down the
hall toward the stairs; I followed. He said he knew it was
easy to get a Dr.’s note; all one had to do was pay $5. Climb-
ing the stairs, he said getting a Dr.’s note wasn't necessary.
I asked him again if he could change the “U”"s. He said no.
I then said in a hough, “In other words you don't believe
me.” He said no; he believed me. I said that if he believed
me, why in the devil didn’t he change the “U"s!! This was
just incredible!
A23
I went back to work on the area study project. Maj.
O'Brien, the head of the area study project, called me over
to acknowledge receipt of the formal notice that stated |
was being given 2 “U"s for that day and that with these 2, |
had 4 for the year. During the conversation I had with him,
Maj. O'brien inquired whether | had any uniform at all. |
said that I had an old, dirty, mussed one with a shirt that
had half one sleeve torn off. He suggested that I wear it in-
stead of civilian clothes; he said civilian clothes just
wouldn't do. I said I'd be glad to wear the uniform: it didn't
make any difference to me; but it was a mess.
Sun., I came to the meeting in the old uniform. During
the opening formation, the XO called me over and motioned
for me to follow him upstairs. I did. We went into the CO's
office. The XO said to the CO that he wanted him, the CO, to
see me in this uniform. He, the XO, said that I was being
given a “U” for the day and that I could leave. I said that |
had told him the previous day that I had no decent uni-
forms to wear. The CO then chorted that there was nothing
to say and told me to leave. I said I'd be glad to check with
supply to see if they had anything I could wear. They said
no, just leave. I said that giving me a “U” was just small and
I left. 1 went down the hall to see Maj. O’Brien. I called him
out of the room where he was and said that the CO and XO
had just told me to leave because my uniform was a mess. I
took off the field jacket I had on and showed him the shirt |
Was wearing. I shrugged my shoulders, and he shook his
head; the uniform was as I said it was the previous day. I
said I wasn’t trying to flaunt anyone, but if you don’t have
a decent uniform, you can’t wear one. He nodded and then
said if the CO and XO had said for me to leave, there was
nothing he could do about it. I then left the reserve center.
The “U"s for Jan. 10th are just plain and simple un-
warranted. I was sick. Being given 4 “Us for the weekend
of Feb. 13th and 14th seems too harsh a penalty. Even
though I was at fault in not knowing the dates of the Feb.
meeting, for not reading the warning letter sent me in Jan.
carefully enough to notice the dates stated in it (though I
RAOUL
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Bew ha ita he Peat RY has
A24
had also been misinformed about the meeting dates when
I called the reserve center), giving me a “LU” for each of the
4+ meetings during the weekend when there was nothing |
could really do about wearing a decent uniform was like . . .
beating a dead horse. Furthermore, the possible ultimate
punishment (activation) is far too severe for the crime.
Realistically, my not wearing a uniform did not prevent me
from doing the work I was supposed to do, did not in any
way seriously hamper the functioning of the unit. I dont
mean to say that one should not wear uniforms to drills, but
it is not all-important. Wearing a uniform is not so impor-
tant that in effect one should face a possible disruption in
one’s life of 18 months because he is unable to wear a
decent one . . . The whole situation is somewhat similar
to the following: A man has 2 cars. One of his cars is being
repaired; the other has a faulty muffler. He believes he
won't need a car for another week and by that time the car
being repaired will be ready for use. The man receives a call
from a friend asking him, the man, to pay the friend an
emergency visit. The man has been asked to visit the friend
not only on that day but also on the following day. The
man takes the car with the faulty muffler and starts out to
see his friend. On the way, a policeman stops him and gives
him a ticket for driving a car with a faulty muffler. The man
says he received an emergency call from a friend and has
to see him, and this car is his only means of transportation.
What is more, he will have to pay another visit to his friend
the following day. He explains to the policeman that he
didn’t think he would need a car for another week and by
that time a car he is having repaired would have been
ready. The man continues on his way to his friend’s house,
sees his friend and then starts to return home. On his way
home, the same policeman stops him again and gives him
another ticket for drivit.g a car with a defective muffler. The
next day the man starts out to visit his friend, and the same
policeman stops him a third time and gives him still
another ticket. On his way back home after visiting his
friend, the same policeman stops him again and gives him
iL) nee Ren EA Oa ead ete ets A PEN aS ‘ A eee
A25
a fourth ticket. In addition the policeman indicates that
because he, the man, has received 4 tickets, he, the police-
man, is going to press charges against the man whereby he,
the man, could possibly spend 18 months in jail! . . . 4
“U"s for not having a proper uniform on when there was
nothing I could really do about it seems ridiculous . . . A
“U” and 3 “N"s would to me seem to be a fairer penalty.
I request that the action by the CO of the 416th CA unit
to have me sent away to active duty be denied. I'd also like
to make a strong request or a hearing to explain other cir-
cumstances surrounding this case—if the action is not
denied.
Sincerely yours,
Todd Moxey
POSES Qe
Beer sss
A26
The XO many times has authorized excused absences
or alternative dates for training for members of the unit
when they have personal or business matters to take care of
on the dates of meetings. Only a verbal notification is
needed. Frankly, | was banking on similar treatment for
the meeting I missed when I was sick so I could avoid the
token, unnecessary visit to a doctor and the $5 to $8 ex-
pense. Looking back. banking on this treatment was
perhaps an error.
There is one cook in the unit who wears bell-bottom
trousers and a white button-down-collar civilian shirt to al-
most every meeting. Many members of the unit wear
fatigues when class “As are called for by the training
schedule. I have worn fatigues for the last 15 months—even
on occasions when class “As have been called for (My
class “A”s were stored in a storage area several miles from
where I live about 15 months ago when | moved to where
I am living now; it would take about a half-day to a day of
moving and digging to pull out my class “A’s.) | don’t mean
to use these cases as justification for not wearing a proper
uniform on Feb. 13 and 14, but I cite them to point out that
not having a proper uniform on is not a hard and fast rea-
son for being given an unexcused absences. In light of the
fact that these variations are tolerated, giving me 4 “Us
for not having on a proper uniform on Feb. 13 and 14 when
there was nothing I could really do about it is arbitrary and
discriminatory.
These occasions where I was given “Us are not unique
incidents of unfair action by the CO and XO.
There are numerous other incidents where the CO and
XO have acted in an arbitrary and discriminatory manner.
They are almost too many to mention; some are just ridicu-
lous, senseless. Let me cite an example . . . | suffer from
hay fever badly; at times I'm almost asthmatic; | start
getting it around the middle of August and it lasts until the
first frost. Our summer camp last year was during the last
two weeks of August. One day we were having classes in
a building that was next to a field and near some woods
A27
that was loaded with ragweed (the weed that I'm allergic
to). Before the formation after lunch, I told the troop
commander, Cpt. Turner, that that classroom wasn't a
very good place for me to be with my hay fever I've found
that the best way to deal with the problem is to minimize
my exposure to pollen; the more exposure | have to pollen
the worse | get and the more susceptible I am to getting
even worse.) Cpt. Turner said alright. and noticing a couple
of buttons missing from my uniform, told me to go sew on
some buttons and then report to the orderly room. | went
back to the barracks and started to sew on the missing
buttons. While I was sewing, the Ist Sgt. came into the
barracks and asked me why I hadn't reported to the orderly
room after the after-lunch formation. I said that Cpt. Tur-
nere had told me to sew some buttons on my uniform be-
fore reporting to the orderly room. The Ist Sgt. told me to
report to the orderly room after I had finished. About 10
minutes later, after I had finished sewing on the buttons, |
went to the orderly room. When | got there, the Ist Sgt. ina
severe, stern tone of Voice told me to sit in a corner of the
room and mentioned that the CO wanted to see me. About
an hour later, I was told to go into the CO's office. When I
got into the office, the CO said to me. “Moxey, You've been
f-king up.” I sort of mentally said, “Hunh” and then said to
the CO, “How have I been f-cking up?” He sat there for a
second and then chorted. You've just been f-king up.” |
again asked how. He made no comment. He then said that
I'd been toid to report to the orderly room after the after-
lunch formation. I said that Cpt. Turner had told me to sew
some buttons on my uniforms and then report to the orderly
room. He told me then to go out and sit in the orderly
room, and he would check into the matter—as if it were of
major concern to the unit. About an hour later, Cpt. Turner
came into the orderly room. I mentioned that the CO had
seemed concerned because I hadn't come to the orderly
room right after the after-lunch formation. I said that I told
him, the CO, that he. Cpt. Turner, had told me to sew some
buttons on my uniform before going to the orderly room. |
Pew rven? erireme t
A28
said that he, the CO, had said he wanted to check on this.
Cpt. Turner said he would see aboutit . . . Later that after-
noon, I went over to the personnel section and started talk-
ing to some of the people in that section. While I was there,
the Ist Sgt. came over and said | was to stay where I had
been told to sit. I looked at him in some disbelief. I felt like
a third grade child being told to stand in a corner. I half-
laughed and said that this was childish; it was ridiculous.
If I was being punished, what was I being punished for?
The Ist Sgt. shrugged his shoulders sheepishly. Someone
in the room said, “All you need now is a dunce cap.” Later
that afternoon as the duty day ended, the Ist Sgt. came up
to me and said that I was being confined to barracks that
night and that I had to sign in in the orderly room every
hour. { couldn’t believe it. I said that this was incredible. I
asked what in the devil I was being punished for. He made
no comment. No one told me why I was supposedly being
punished . . . The whole incident was ridiculous.
. PTS No —
A29
18 May 71) Ist Ind
SUBJECT: Appeal from Order to Active Duty under AR
135-91 (MOXEY, TODD G. PVT)
416TH CIVIL AFFAIRS COMPANY. USARC. 1020 Sandy
Street, Norristown, Pa. 19401 10 Jun 71
THRL: Commanding Officer. Hqs, 304th CA Group. Wood-
haven & Comly Rd. Phila. Pa.
TO: Commanding Officer, 358th CA Area B). USARC.
1020 Sandy Street. Norristown, Pa. 19401
1. Reference is made to letter from PVT Moxey to the
Commanding Officer, 304th CA Group, Philadelphia, Pa.
pertaining to individual's appeal from reporting to Active
Duty, under provisions of paragraph 20d, AR 135-91.
2. In compliance with paragraph 16b, AR 135-91. the fol-
lowing comments are submitted to justify the action origi-
nally initiated to order individual on Active Duty:
a. Subject individual is a graduate of Harvard Univer-
sity. has intelligence capability and can. when he elects to.
discern right from wrong.
b. PVT Moxey knows that a doctor's excuse is required
for illness, and that such an excuse is accepted only after
reporting in as being ill. All other members of this unit
follow this procedure. In my experience as Commanding
Officer, I have found this is the only feasible way of pre-
venting abuse and has been found necessary to avoid prob-
lems of credibility.
c. PVT Moxey's excuse about “someone at the Center”
telling him that the drill was on February 20, 1971 is com-
pletely without merit. First of all, he knows the drills are
A30
customarily on the second weekend of the month. Secondly,
he acknowledges in his letter that he received a registered
letter from the Unit advising him that the drill was to be on
February 13 and 14, the customary weekend. Moreover, it
is contrary to human experience for a person not to read
a letter that arrives by way of “Registered Mail.” Finally,
PVT Moxey’s failure to identify the person at the Reserve
Center who allegedly mislaid him about the date of the drill
shows the weakness of his story. The AST’s always identify
themselves when answering the phone, are very competent,
and know when assemblies are scheduled.
d. This Unit, as PVT Moxey well knows, prescribes a
uniform for unit personnel at drills. The uniform may vary
to meet the requirements of training for different sections.
For example, Supply and Motor Pool personnel wear
fatigues, while the cooks wear whites, as prescribed by regu-
lations. The balance of the personnel are in uniforms which
are prescribed by the training schedule. The Army has
given PVT Moxey two sets of fatigues and two sets of Class
“A” uniforms. As to his Class “A” uniform he shows total
disregard of his military obligation by his admission that he
keeps them stored away so that he never has them available
when they are prescribed. As to his fatigues, one pair is
apparently torn and the other was allegedly out to the clean-
ers. Even a modicum of knowledge and intelligence would
indicate that PVT Moxey had failed in his duty concerning
his uniform. First, he should have taken steps to repair
or replace his torn uniform. Secondly, the Army has sup-
plied a soldier with two sets of fatigues so that a soldier
would have at least one uniform available, while the other
was being cleaned, or repaired. PVT Moxey was especially
negligent and direlict in his duty, since he knows or should
have known from the registered letter he received that the
February drills were scheduled for the 13th and 14th. He
had advanced notice and had plenty of time to have it
cleaned, especially since the previous drill had been more
than a month before. Prudence would indicate that a
® _ :
So re eaten met ie ee:
A31
soldier would have his uniform cleaned right after a drill.
PVT Moxey’s problems with his uniform undoubtedly re-
sults from the fact that he wears his uniform between drills
as he goes about his civilian pursuits as a member of the
Unit. He has been seen by CW4 Brooke McIntyre and SP5
Frank Caiola, a practicing attorney, Mayor of Norristown,
Pa. (a town of 45,000), and a member of this Unit, hitch-
hiking in Norristown, in his uniform on a non-duty day.
PVT Moxey also has been known to use the name of Mayor
Caiola carelessly and without authorization, with certain
incidents in which he has been involved in Norristown.
e. PVT Todd Moxey, exactly one day before reporting
for AT 1970, announced that he did not want to go to
Annual Training because of hay fever, and requested that
he be excused from attendance. He reported to the USAR
Center at approximately 1000 hours on Friday, 21 August
1970, demanding such an excuse. Mr. Yacovelli, the AST of
the Unit, called Valley Forge General Hospital, and sched-
uled an immediate consultation with the Clinic to deter-
mine the individual's physical status, and his availability
to be physically qualified to attend AT 1970. Although the
doctors at the Valley Forge General Hospital found that
this individual has a case of hay fever, and should not be
exposed to the elements of weeds, it was determined that he
was eligible and qualified to attend AT 1970 with the Unit.
After arriving at IGMR, Annville, Pa. for AT 1970, PVT
Moxey immediately complained of the hay fever. Yet, while
he apparently could not perform duties during scheduled
training periods, he would play touch football, during
break time and lunch periods, in the very same fields where
he indicated he could not perform his military duties. The
undersigned prohibited this extra curricular activity be-
cause he felt it would interfere with his alleged asthmatic
condition. PVT Moxey then turned himself into the Post
Hospital for hay fever. The hospital personnel could not
find evidence of his alleged problems. They were most dis-
tressed with his actions and activities throughout his con-
finement at the hospital.
A32
f. The undersigned strenuously denies that he used ob-
scene language in PVT Moxey’s presence. The undersigned
has seen and been in too many incidents in both civilian
and military life. and know the implications of careless
talk. However, the undersigned did make it clear to PVT
Moxey that his conduct was unbecoming of a soldier, and
in violation of Army Regulations.
g. In addition, the undersigned points out that prior
to his transferring to this Unit, but unknown to this unit at
the time of his transfer, PVT Moxey’s former Commanding
Officer attempted to place him on Active Duty for poor
attendance at drills.
h. Pvt Moxey’s conduct in January and February 1971
is reminiscent of his previous behavior in this Unit. Papers
necessary to document the previous behavior have mys-
teriously disappeared from his file. Since Annual Training
1970. PVT Moxey’s file has been locked in a safe with only
three (3) responsible personnel permitted to have access to
it, or some necessary documents could conceivably be
missing now.
i. PVT Moxey has not appealed through this Unit of
Assignment or contracted the undersigned concerning an
appeal or matters relative to his orders to Active Duty. He
has sent copies of undated letters to the Commanding
Officer, 304th CA Group, Philadelphia, Pa.
j. PVT Moxey is probably one of the most counseled,
if not the most counseled individual in the US Army Re-
serve. This, coupled with his mental capability as proven
by a degree awarded by Harvard University, proves that he
knows what is required. and is expected of him.
k. This Command makes no attempt to show partiality
to anyone. We try to be fair, be guided by regulations and
treat all in the same manner. This can be attested to by the
high morale and ratings of and within the Unit.
A33
1. PVT Moxey, in the opinion of the undersigned, being
a Harvard University graduate, having great abilities when
he elects to use them, always elects to use, bend and change
regulations and requirements to suit his own desires and
wants. He expects and practically demands the US Army
and the US Army Reserve to do this as evidenced by the
manner in which he has handled this appeal. He has fol-
lowed no regulations, gone out of channels, and again
forced the US Army to change to meet his desires and dic-
tates. This is further evidenced by a delay in his call to
Active Duty.
m. In view of the above comments, and the fact that
this individual did in fact, violate AR 135-91, in the form of
being absent from assigned UTA, in the form of five (5) or
more within a year, it is hereby requested that the appeal
for individual’s order to Active Duty be disapproved, and
that the individual be ordered to Active Duty as originally
requested, and as published by the appropriate orders by
Headquarters, First United States Army,
EDGAR C. SEELY JR.
LTC CA-USAR
Commanding
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A35
DEPARTMENT OF THE ARMY
HEADQUARTERS. FIRST UNITED STATES ARMY
FORT GEORGE G. MEADE. MARYLAND 20755
AHAAG-CA 11 August 1971
SUBJECT: Active Duty Orders
PV2 Todd G. Moxey
155 West Elm Street
Norristown, Pennsylvania 19401
1. Your undated ijetter requesting copies of your unit com-
mander’s request for active duty orders and his indorse-
ments of your appeal has been received. Your request has
been reviewed by the Staff Judge Advocate Section, this
headquarters. It has been determined that it would not be
appropriate to provide you with the requested materials
at this time. Please be advised, however, that in the event
your appeal is disapproved at the Department of the Army
level you will be supplied with a copy of all documents
considered by the appeal board.
2. Your file is being forwarded this date to the Commanding
General, US Army Reserve Personnel and Administration
Center, 9700 Page Boulevard, St. Louis, Missouri 63132.
If a final decision on your appeal has not been announced
prior to 31 August 1971, your current active duty reporting
date, your orders will be amended by this headquarters to
show a later reporting date.
FOR THE COMMANDER:
ALAN L. ATTERBURY
ILT, AGC
Asst AG
AH He HE AMPTP LA ES RM AL eI ME WAS
Ae itd
EN
a
“ia?
A36
DEPARTMENT OF THE ARMY
HEADQUARTERS, FIRST UNITED STATES ARMY
FORT GEORGE G. MEADE, MARYLAND 20755
AHAAG-CA 11 August 1971
SUBJECT: Appeal of Involuntary Active Duty
Moxey, Todd G., 203-34-2216
Commanding General
US Army Reserve Personnel & Administration Center
(ATTN: Mrs. Corey)
9700 Page Boulevard
St. Louis, Missouri 63132
1. Appeal of involuntary order to active duty submitted by
PV2 Todd G. Moxey is forwarded for consideration under
paragraph 20d, AR 135-91.
2. The appeal is based upon PV2 Moxey’s several undated
letters (TAB B).
3. Recommend disapproval. PV2 Moxey is charged with
six unexcused absences accrued on 10 January 1971
(MUTAQ2) and 13, 14 February 1971 (MUTA4).
a. In his appeal PV2 Moxey states that he was suffer-
ing from a cold on 10 January and did not feel well enough
to attend the meetings on that day. He claims that he did
make an attempt to telephone the unit on 10 January to
apprise the commander of his illness but states that the
call was not answered. His appeal indicates that he made
no additional effort to substantiate his alleged illness by
providing appropriate affidavits or doctors certificates as
required by paragraph 9, AR 135-91. Moreover, the fact
that PV2 Moxey received the notification letter dated 10
January reminding him of this latter requirement indicates
A37
that his failure to produce such documents occurred with
full awareness of the consequent risk.
b. Likewise, it appears that PV2 Moxey was fully aware
of the consequences of the course of action he adopted
with regard to the 13, 14 February MUTA4. The believabil-
itv of his claim that he was mistaken as to the date of the
February MUTA4 is diminished by the fact that he failed
to identify the person he claims told him that the MUTA4
was to be held on 20, 21 February and by the fact that he
signed for receipt of the registered mail letter of 10 January
advising him of the correct date of the next scheduled
assembly. With his claim of honest and reasonable mistake
as to the date of the February meeting rejected, PV2
Moxey’s contention that it is unfair and excessive to charge
four absences on 13, 14 February is without merit. As noted
by the unit commander, PV2 Moxey was issued two sets
of fatigues so that at least one would be available for duty
wear. In view of this fact it would be difficult for the unit
commander to excuse PV2 Moxey’s failure to wear a pre-
sentable uniform to any of these scheduled assemblies.
c. PV2 Moxey’s claims of unequal treatment with re-
gard to equivalent training and uniform requirements also
lack merit. The equivalent training experience of Charles
Ogelsley is significantly different from PV2 Moxey’s in that
the request was submitted before the absences were
charged. Clearly, requiring consideration of equivalent
training requests made after an absence would seriously
impair the enforcement provisions of AR 135-91. The claim
that a Specialist Yadavia regularly wore civilian clothing
tc meetings also contains the explanation that the enlisted
mari had not been issued a duty uniform.
4. Your attention is directed to the undated letter from
PV2 Moxey requesting copies of the original request for
active duty orders and comments made by the unit com-
mander on the appeal (TAB B). This headquarters has ad-
vere ncoee PUP LILIES PLOT A ae
A38
vised PV2 Moxey that such materials will be provided if
and when this appeal is disapproved at Department of the
Army level.
5. PV2 Moxey’s current active duty reporting date is 31
August 1971. His orders will be amended to show a later
reporting date if no decision has been made prior to 24
August 1971.
FOR THE COMMANDER:
4 Incl ALAN L. ATTERBURY
as in Tab Directory ILT, AGC
Asst AG
A39
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Am an DEPARTMENT OF THE ARMY
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ACUZAPAD-}'4 Poxsy, Tels 6. Woet 71
SSi 293-534-2216
MEMORANDUM FOR RECOPD
SUBJECT: AK 135-9) DULAY APPEAL 5OARD RECOIL! OF PROCEDUINGS
1, Pursuant to lettci, Hacquarters, Depart: int of the Vwi, RCPAC, dated
13 Septericr 1971 subject: “AP 135¢91 Lelay Appeal
Board," a board of officers was convened atl 9 hours 1* Septe-ber sabe
at St. Louis, Missouri. The hoard met to review and mike recorme Walions
on the delay appeal (paragraph 29¢ (2), AN 135-91) of [v2 todd G. Menen
SSN 203-354-2216.
2. The follcwing members of the board were present:
MEDINA, TO:':S SSN 4662-54-5412, CT, AGC (Drecident)
SOOLEY, Wiluras: ?’. fen 2. 5914-2052, NAT ACC (Recorder v/o vote)
\AITTNEY, LoL Je ** O25-14-77:>, GS-11
O'CONNOR, YITEN B, git 4°7=26-4510, CS-19
ether
3. The avicemig members of the fcard were absent witn the concurrence
of the President and convening authority:
4. The Board members were polled to determine if any member had prior
knowledge of this case that would prejudice Sis ability to render a fair
and impartial decision, This poll revealed that no member of the que
had any prior knowledge of the case.
AGUZ Form
1086
1 Aug 71
A40
-
5. Findings: Having carefully considered the facts and documais sub-
mitted by PY¥2 Todd C. tozcy, SSN 203-234-2716 incidental to his
delay appeal application the Board finds:
s. Theat th- docuventation subcitted fails to cualify the applicant
for mitipation or relief froa his involuntary call to active duty.
b. A detailed emalysi: of this case reveals thet the acuinistretive
factors requir: 2 to sup2ort a1 involuntary call to ective cuty tor un-
saticfactory perticipatiosr Lewes been conswmated. This reviews incluuedc
exs~inetion of the petitioner's 'dlitory Personoc! lecords Jecret (DA
For= 201); several uncsted Saaaean of erveal for relicf froa erli to active
duty; end several forwerdin~ comand indorsements.
c. The tense of the pctitioner's appeal is directed te er: justi-y-n?
why he knowirrly and will<.ily violated erecifie -uidance cenee ruine his
wmsctisfactory ariendance. liz eteted extonuaticn was wma:ircucty viewrd
as uncuppeortcd and ennanepusble grounds for favoribie consiceraticn oy
this Board.
6. Recorecendation(s): In view of the above finsincs, the Foard reso ven
disapproval of PV¥2 Moxey's appeal fren his involuctary order to active
duty.
tw
> —————————————— —_
Adl
Pe t Roar Jjourred at =* ours ms
The card adj ¢ 3435 hour ? Octeter 1°72.
ee ree 4 uty | at
—. —
TOUS SODIMA, eT Ere (President)
fis 4
ra Zz . 77? f <
WEEES: 5 8. FMA, iid, AGC ('.corder w/o votr)
v
8. Dissenting Vote(s):
Kone
9. Action by Convening ¢-thority:
She teccsmendaticon cf tae Beare is &cpTovec.
BY ORDER OF THE SECRETARY OF THE ARMY:
Awe t. -
Griginal ~ sand a 5 Seantotanra <9"
Copy - OMPF Celenel, acc
Copy - RCPAC, PAD Deputy Commander
3
AGUZ Fore 1086 - 1 Aug 71
A42
TODD G. MOXEY CIVIL ACTION
v.
EDGAR C. SEELY. JR. and NO. 71-2574
SECRETARY OF DEFENSE
ORDER
AND NOW, this 7th day of April, 1972, it is hereby
ORDERED that the above-captioned matter be reargued
on Friday, May 19, 1972, as to the following issues:
(1) Whether the November 24, 1970 Bulletin issued by
First Army Headquarters which amended AR 135-9120:e)
by removing the right to a personal hearing was an au-
thorized and legal change in “format” in view of AR 135-
91(20)e, effective October 1, 1970, which gave a reservist
the right to a personal hearing? Cf. Higbee y. Laird, 4
SSLR 3555, (D. N.J. Sept. 10, 1971).
(2) If the November 24, 1970 Bulletin in question did
not effectively remove the right to a personal hearing.
would Private Todd Moxey nonetheless be entitled to a
personal hearing since the Delay Appeal Board did not
consider his appeal until September 19, 1971, thus, after
the June 1, 1971 amendment to AR 135-91(20)e which re-
moved the right to a personal hearing?
(3) In the event this matter is remanded back to the
United States Army for a personal hearing, what is the
effect as to this petitioner of the language in AR 135-91
(12)e(2) which provides:
“. . . after his notification and . . . that unless noti-
fied otherwise he [petitioner] is not required or
authorized to attend unit assemblies or annual train-
ing (AT) while awaiting his entry on active duty and
will be granted excused absence during the period
involved.”
: i <— a en
lf the Army failed to follow applicable procedures
thereby necessitating Mr. Moxeys appeal to this Court.
should he have credited to his total resexye obligation the
time spent processing his appeal within the military and
before this Court? |
I1T IS FURTHER ORDERED that the plaintiff 5 coun-
sel file a supplementary brief on or before April 29. 1972.
and that the Government file a reply brief on or before
May 17, 1972.
A43
BEFORE THE COURT:
A. Leon Higginbotham,
j.
Ad4
IN THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
TODD G. MOXEY CIVIL ACTION
v.
EDGAR C. SEELY, JR. and
SECRETARY OF DEFENSE NO. 71-2574
HIGGINBOTHAM, J. JUNE 27, 1972
OPINION AND ORDER
In this civil action, instituted by means of a rule to
show cause on October 26, 1971, the plaintiff, Todd G.
Moxey, asks this Court, inter alia, to (1) declare that plain-
tiffs performance in the United States Army Reserve Unit
was not unsatisfactory, (2) issue an injunction restraining
the defendants from ordering the plaintiff to active duty,
and (3) declare 10 U.S.C. §673a and regulations thereunder
unconstitutional. For the reasons appearing hereinafter,
I hereby grant the Government's motion for summary judg-
ment and dismiss the instant complaint.!
On February 18, 1966, Mr. Moxey enlisted in the United
States Army Reserves and served, after attending his initial
six months of basic training, until the period in question
in this lawsuit, January and February of 1971. It should be
noted that on November 14, 1970, plaintiff signed a “State-
ment of Reserve Agreement Understanding” which stated,
inter alia:
“I understand that if | fail to attend prescribed unit
training without proper authority or if because of
1. This matter was originally argued on December 3, 1971. It
was listed for reargument and rebriefing on May 19, 1972 because
certain dispositive issues had not originally been fully briefed.
oie, LR eo ’
O - | a oe
A45
change of residence, job interference or other rea-
sons, I am unable to continue serving in a unit, I will
be ordered to active duty for twenty-four (24) months
less any period of active duty, active duty for training
or annual field training which may have been served
previously. Inactive duty training assemblies may not
be counted against this period of active duty.
x = x
“I understand that absences from scheduled unit
training assemblies or Annual Active Duty for Training
may be authorized by the unit commander for reasons
of sickness, injury, emergency, or other circumstances
beyond my control when substantiated by affidavits
or certified by a doctor or medical officer. Employ-
ment conflicts, overtime, schooling, and loss of income
are not normally considered valid reasons for absence
from training. Requests for authorized absence must
be submitted in writing in advance unless illness or
emergency does not provide sufficient time for sub-
mission, in which case, it must be submitted at the
earliest practicable date.
“I understand that I will be ordered to active duty for
a period which, when added to my prior service on
active duty, active duty for training, annual field
training or full time training duty, will total twenty-four
(24) months if | fail to attend Annual Active Duty for
Training or if | fail to participate satisfactorily by
accruing in any one-year period a total of five or more
unexcused absences from scheduled unit training
assemblies. If | fail to attend a scheduled single unit
training assembly (UTA) without proper authority |
will be charged with one unexcused absence. If | fail
to attend a multiple unit training assembly (MUTA)
without proper authority, I will be charged with one
unexcused absence for each UTA equivalent not at-
tended. The maximum number of absences charge-
SALTED ALM ODS IE BOTA SVN OLINGER EA EINE
SEGRE SGML IRAE DO IVE STEP TIL RP fr &
or Me
A+6
able for failure to attend consecutive MUTA assem-
blies will be + unexcused absences.
“I understand that a member present at a scheduled
unit training assembly will not receive credit for at-
tendance thereat unless he is in the prescribed uni-
form, presents a neat and soldierly appearance, and
performs his assigned duties in a satisfactory manner
as determined by the unit commander. When present
at a unit training assembly and credit is not received
as covered herein, I understand that an unexcused
absence will be charged.
“I understand for the purpose of computing unexcused
absences, the one-year period will begin on the date
of the training assembly from which I am absent with-
out proper authority and will end one year later. When
longer than one year elapses from the date of such
unexcused absence, it no longer will be counted and
the new year period will begin on the date of the sub-
sequent absence if any. Unexcused absences will re-
main charged to me if | am reassigned or am enlisted
in another Reserve Component Unit.”
On January 10, 1971, Mr. Moxey’s Reserve Unit had
both morning and afternoon training sessions scheduled
which Mr. Moxey did not attend. On the same date as his
absence, the Reserve Unit sent him a letter (which he re-
ceived on January 12, 1971) advising him of his unexcused
absences and informing Mr. Moxey that the next Reserve
Meeting was to be held on the weekend of February 13, 14,
1971. It appears that while Mr. Moxey did in fact attend the
Reserve Meeting scheduled for that February weekend,
he did so in a uniform which in the opinion of his Com-
manding Officer, Lt. Col. Seely, was improper. Accordingly,
Mr. Moxey was informed that the attendance at the meet-
ings on February 13, 14, 1971 was recorded as “absent”.
Thus, because each day of training was the equivalent of
two absences, Mr. Moxey had accumulated four more
cle SL REE AONE Li Le Of eee
AAT
unexcused absences bringing his total within a period just
slightly over one month to six.”
The applicable Army regulations are issued pursuant
to 10 U.S.C. §673a, which provides, inter alia:
“(a) Notwithstanding any other provision of law, the
President may order to active duty any member of the
Ready Reserve of an armed force who—
(1) is not assigned to, or participating satis-
factorily in, a unit of the Ready Reserve;
(2) has not fulfilled his statutory reserve obli-
gation; and
(3) has not served on active duty for a total
of 24 months.
(b) A member who is ordered to active duty under
this section may be required to serve on active
duty until his total service on active duty equals
24 months. If his enlistment or other period of
military service would expire before he has served
the required period under this section, it may be
extended until he has served the required peri-
od.”
The specific regulation in question is AR 135-91. That
regulation defines “unsatisfactory performance” in para-
graph 12 as “accruing” in a one vear period five or more
unexcused absences from scheduled unit training assem-
blies. AR 135-91 also specifies the procedures which the
Army must follow in involuntarily activating any reservist
whose performance falls within the proscribed ambit of the
2. It should be noted that my Order of Dismissal follows the
now well-established rule that courts should not review discretionary
decisions of military authorities made within their valid jurisdic-
tion. See e.g., Orloff v. Willoughby, 345 U.S. 83, 73 S.Ct. 534 (1953):
Keister v. Resor, No. 71-1936 (3rd Cir. 5/15/72); O'Mara v. Zebrow-
ski, 447 F.2d 1085 (3rd Cir. 1971); Ryan v. Barkley, No. 72-134
(E.D.Pa. 4/25/72). ‘
PE TIRE ETI ELE SEO IIE IT AR EF NYSE RNY PUBL IG LOE TANS
SGOME AE II ONG OIL OMG Gy 0
A48
regulations. The Regulation provides that upon an initial
determination by a reservist’s unit commander that his
performance has been unsatisfactory, as defined above.
pursuant to para. 12(d) the commander must determine if
any “cogent or emergency reasons existed which prevented
the member from attending”. The commander is then re-
quired to notify the reservist of his determination and in-
form him of his right to appeal the unit commander's
determination within fifteen days. The reservist is required
to respond in writing for any delay in his active duty orders
pending appeal. The regulation then permits an appeal to
the area commander, in this case the First Army Head-
quarters, Fort Meade, Maryland. If the appeal is denied by
the Area Commander, the appeal is then forwarded to a
Delay Appeal Board, Fort Benjamin Harrison, Indiana.
“The appeal procedure is not set out with crystal clarity
in the regulation, but it appears that appeals are directed
first to the area commander and then, if denied, are auto-
matically forwarded for further consideration to the Com-
manding Officer, United States Army Reserve Components
Personnel Center, Fort Benjamin Harrison, Indiana. (foot-
note omitted)” O'Mara v. Zebrowski, 447 F.2d 1085 (3rd
Cir. 1971).
The crucial issue in this case is what form the review
by the Delay Appeal Board should take. The applicable
regulation, AR 135-91 (20) e. now provides:
“e. Appeal board. The Commanding Officer, U. S.
Army Reserve Components Personnel Center, will
convene an appeal board to determine findings and
submit recommendations to him on denials of appeal
3. My independent examination of Private Moxey's service file
(Exhibit G-1) and Appeal file (Exhibit G-2) reveals that the Army
has followed its own regulations in processing Private Moxey's
appeal. In addition, Private Moxey does not make the claim, clearly
within the jurisdiction of a court, that the Army violated its own
regulations. His claim is that the regulations themselves are invalid.
Cf. Ryan v. Barkley, No. 72-134 (E.D.Pa. 4/25/72).
Ot CT 8 een ace
AA9
of involuntary order to active duty submitted under
this regulauon. The board proceedings will be as
prescribed by the Commanding Officer. U. S. Army
Reserve Components Personnel Center. The provisions
of AR 15-6 will not be applicable to such proceedings”
‘emphasis added )
By expresslv excluding the application of AR 15-6, the
Army takes the position that the procedures in Regulation
15-6 which give the serviceman the right to a hearing | para.
6 1)), the right to counsel | para. 8), the right to be present
and cross-examine witnesses para. 11). the right to file
a written brief para. 17. and the requirement of written
findings supported by substantial evidence | paras. 19, 20
do not apply. It is clear that as of the present the Armv does
not consider the application of AR 15-6 the necessary pro-
cedure for a hearing which would result in the involuntary
activation of a reservist.
The Army's position was approved in a verv recent
opinion, Keister v. Resor, No. 71-1936, (3rd Cir. filed
3/15/72). In Keister, the Court of Appeals considered and
rejected a claim that the procedures of AR 15-6 are required
either constitutionally or by construction of the Army Regu-
lations themselves. The Court reiterated in Keister. supra,
that AR 135-91 is not constitutionally defective and reaf-
firmed O'Mara v. Zebrowski, 447 F.2d 1085 3rd Cir. 1971)
which stated:
“The procedure of Army Reg. 135-91 unquestionably
could be improved. Determinations of a rather sum-
marv character which substantially affect individuals
are. however, an everyday occurrence in the military.
It is not our function to decide what is best for enlisted
reservists. The challenged procedure [AR 135-91] does
permit a reservist to take the matter up with his unit
commander, and it also permits an appeal in which
the reservist has an opportunity to ‘explain those facts
pertinent to his case which he feels were not fully con-
evereeerie cre LENS PRY EM SS ROG AIEEE TRE ME RSE REGS 8H ATEN SE RW TP 2 PR
A5O
sidered, and © * * include any additional appropriate
evidence, * * ©” (citation and footnote omitted). Given
the factual context in which this procedure operates,
and the presumption of constitutionality that attaches
to this statutorily authorized (footnote omitted) pro-
cedure, we are unable to conclude that the procedure
is constitutionally defective.” O'Mara, supra, 447
F.2d at 1090.
Further, the Keister court in expressly rejecting the
claim that the procedures of AR 15-6 are required in an
AR 135-91 activation order as a matter of statutory con-
struction, stated the following:
. to encumber the determination required of a
reservist’s commander, obviously contemplated by
AR 135-91 to be a reasonably routine one, with the
provisions of AR 15-6 would not only be to broaden the
latter's scope beyond its indicated parameters, but also
to complicate the activation process as to render it a
useless vehicle for the maintenance of military pro-
ficiency. In conclusion, then, we think that AR 1546
cannot be construed to ‘supplement’ AR 135-91, and
that the appellant is therefore not entitled to a full
blown hearing from his unit commander before his
activation. Consequently, the need for a hearing before
the Delay Appeal Board having been correctly decided
by the District Court and his unit commander having
complied with AR 135-91, the appellant’s second
contention is, on all fronts, meritless.”
Thus, I must reject Private Moxey’s claim that AR 135-
91 as presently drafted, requires a hearing following the
procedures of AR 15-6.
The remaining question is whether AR 135-91 requires
a hearing pursuant to AR 15-6 because of the procedures
employed by the Army in amending AR 135-91.
4. The District Court in Keister rejected a claim that a “full
blown” hearing is required before the Delay Appeal Board. Keister
v. Resor, No. 71-646, (E.D.Pa. 9/30/71) Slip Opinion at pp. 7-10.
S=—_v Ss See: eElC<C RO
ASI
As presently drafted, AR 135-91\20)e, supra., specif-
ically excludes the application of AR 15-6 to the involuntary
activation of a reservist. However, the language which
excludes the application of AR 15-6 was added by means of
an amendment to the regulation dated April 8, 1971 to be
effective on June 1, 1971. Before the April change (effective
June 1, 1971) AR 135-91\ 20)e provided:
“The Commanding Officer, U.S. Army Reserve Compo-
nents Personnel Center will convene a board of officers
to determine findings and submit recommendations
on denials of appeal of involuntary order to active duty
submitted under this regulation. The board will follow
procedures as set forth in AR 15-6. The format of the
board proceeding will be prescribed by the Command-
ing Officer, U.S. Army Reserve Components Personnel
Center.” (emphasis added)
However, under the authority given tothe Commanding
Officer to prescribe the “format” of the proceedings before
the Delay Appeal Board, the Commanding Officer previously
had issued a bulletin on November 24, 1970 which effec-
tively altered the procedure from an oral hearing to the
current written appeal.
The Bulletin of November 24, 1970 was issued by First
Army Headquarters following orders sent to First Army
Headquarters by the Office of Personnel Operations at Fort
Benjamin Harrison, Indiana. The language of the Bulletin
issued by First Army Headquarters was sent by means of
a “message change” to the regulations in November of
1970. The authority for issuing such a “message change”
is supplied by AR 310-3 © 1-12 which provides:
“Under the most urgent circumstances, interim
changes may be transmitted by means of an electrical
message.”
It is clear that the Army’s use of the “message change”
procedure indicates a determination by the Army that the
instant change (removing the applicability of AR 15-6 to the
A5S2
AR 135-91 call-up procedures) was considered to be “ur-
gent’. Thus, a federal court cannot “second guess” such
a discretionary determination by the Army as to what is or
is not “urgent.” Accordingly, I must conclude that the
“message change” and First Army Bulletin (as approved by
the Adjuctant General) effectively amended AR 135-91 by
excluding the applicability of AR 15-6. Thus, at the time
Private Moxey began his appeal processing in February of
1971, he had no right to a personal hearing pursuant to
AR 15-6 either before his unit commander or the Delay
Appeal Board. Keister v. Resor, supra. In addition, it is
clear that in October of 1971 when the Delay Appeal Board
considered and rejected Private Moxey’s appeal that he had
no right to an AR 15-6 hearing before that Board. For all the
above reasons, I reject Private Moxey’s claim that activa-
tion requires the “full blown” hearing described in AR 6.
One issue raised by petitioner remaining for my adju-
dication, is whether 10 U.S.C. §673a, supra, is unconstitu-
tional presumably as “cruel and unusual punishment.” It
is well-settled that involuntary activation is not “penal” in
nature even though the result of an activation order may
be to extend the reservist’s original enlistment period.®
“The primary purpose of involuntary activation ap-
pears to be to maintain the military proficiency that
is otherwise maintained by attendance at unit hearing
assemblies”. O'Mara v. Zebrowski, 447 F.2d, 1085,
1089 (3rd Cir. 1971).
_ Thus, Private Moxey’s claim that 10 U.S.C. §673a is
unconstitutional must likewise fall.
In conclusion, the Army is now free to activate Private
Moxey and to extend his period of enlistment as mandated
by 10 U.S.C. §673a. The length of his active duty tour
would not be affected by AR 135-91( 12)e(2) which provides:
5. AR 310-3, 1-7; see cases cited note 2, supra.
6. See e.g., Keister v. Resor, No. 71-1936 (3rd Cir. 5/15/72) Slip
Opinion at p. 8; O'Mara v. Zebrowski, 447 F.2d 1085 (3rd Cir. 1971);
Fox v. Brown, 402 F.2d. 837 (2nd Cir. 1968).
€
oO R | CER RE BEE
ASS
_ after his notification and . . . that unless notified
otherwise he [petitioner] is not required or authorized
to attend unit assemblies or annual training (AT)
While awaiting his entry on active duty and will be
granted excused absence during the period involved.”
The above regulation must be read simply to inform
a reservist that while awaiting activation he may not attend
reserve meetings and will be granted excused absences.
However, the regulation does not modify 10 U.S.C. §673a
which permits an extension of total enlistment while on
active duty to equal a total of 24 months active duty time.
Finally, any claim that Private Moxey’s active duty period
is excessive may be processed while serving on active duty.
Fox v, Brown, 402 F.2d 837, 840 (2nd Cir. 1968).
For all the above reasons, the government's motion
for summary judgment is granted and the complaint dis-
missed.
ORDER
AND NOW, this 27th day of June, 1972, it is hereby
ORDERED that the Government's Motion for Summary
Judgment is GRANTED and the complaint in this matter
is DISMISSED.
It is further ORDERED that the stay of activation
entered on October 26, 1971 is hereby VACATED.
PONTE Pa
ew POTS LOPS Te ENLIST ALLEL ME PL YOON OAT RS Ae OT TEL CIR TOTO
AS
IN THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
TODD G. MOXEY ~*~ CIVIL ACTION
y
EDGAR C. SEELY, JR. and
SECRETARY OF DEFENSE NO. 71-2574
ORDER
In my Opinion and Order of June 27, 1972 dismissing
Mr. Moxey’s complaint, I placed substantial reliance on
Keister v. Resor, No. 71-1936 (3rd Cir. May 15, 1972). The
Court of Appeals for the Third Circuit has entered a stay
of activation in the Keister case pending disposition of Mr.
Keister’s petition for certiorari. In view of these unusual
circumstances I enter the following Order:
AND NOW this 12th dav of July, 1972, upon considera-
tion of plaintiff ’s motion for a stay of activation pending
appeal, it is hereby ORDERED that the defendants, their
agents, and all persons acting in concert with them are
RESTRAINED from ordering the plaintiff to active duty
pending final disposition of this case, (unless otherwise
ordered by the Court of Appeals).
BY THE COURT:
A. Leon Higginbotham, Jr.
ASS
ene |
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 72-1729
TODD G. MOXEY, Appellant
EDGAR C. SEELY. JR.. and SECRETARY OF DEFENSE.
Appellees
(D. C. Civil Action No. 71-2574)
Appeal from the United States District Court for the
Eastern District of Pennsylvania.
Argued September 26. 1973
Before SEITZ, Chief Judge. HUNTER and WEIS.
Circuit Judges
John David Egnal
Egnal and Egnal
Attornevs for Appellant
Harrington Wood. Jr.
Assistant Attorney General
Robert E.J. Curran
United States Attorney
Robert E. Kopp
Barbara Herwig
Attornevs for Appellees
Pereerincr train roietriay
A56
JUDGMENT ORDER
Appellant is an Army reservist who has been involun-
tarily placed on active duty for sixteen months because
he exceeded the permissible number of unexcused
absences from Army reserve drills.
He contends that the district court erred in failing to
find:
1) that the decisions of the appellees in activat-
ing him were erroneous, arbitrary and beyond their
permissible ground of discretion.
2) that his activation was procedurally detective
because,
a) he was unconstitutionally deprived of
the right to review and respond to adverse docu-
ments considered in the Army's appeal procedure.
b) the Army failed to follow its applicable
procedures.
c) the appeal board failed to give his case
meaningful consideration.
3) that his involuntary activation is cruel and
unusual punishment.
After considering these contentions,
It is ORDERED and ADJUDGED that the judgment of
the district court be and is hereby affirmed.
Costs taxed against appellant.
oP the Court
Pe, OO SL oes
"ion Hunter, III, Circuit =
Date: Oct. 11, 1973
Attest: vb G2 +
vo F. Quinn, Clerk
AST
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 72-1729
_ TODD G. MOXEY Appellant
EDGAR C. SEELY. JR., and SECRETARY OF DEFENSE.
Appellees
SUR PETITION FOR REHEARING
Present SEITZ, Chief Judge, VAN DUSEN, ALDISERT.
ADAMS. GIBBONS. ROSENN, HUNTER, WEIS and
GARTH, Circuit Judges
The petition for rehearing filed by
Appellant
in the above entitled case having been submitted to the
judges who participated in the decision of this court and
to all the other available circuit judges of the circuit in
regular active service. and no judge who concurred in the
decision having asked for rehearing. and a majority of the
circuit judges of the circuit in regular active service not
having voted for rehearing by the court in banc. the peti-
tion for rehearing is denied.
By the Court,
Dated: November 7, 1973 James Hunter, III, Judge
SpA BH ID! Pre tes |
SUMPTER UN OR TREE IEE LORY FOAM IO? MR IE ASN
PF ETE IU III SAR POT ne PPL 8 TEER SNR,
PP PMY RAN NY EIS
Te MUR On RG COUR ANAT DOTY
TET
Bree rrernpenogsee penser recs Un
Army Reociation
No. 135-91
*AR 135 91
HEADQUARTERS
DEPARTMENT OF THE ARMY
RESERVE COMPONENTS
POLICIES AND PROCEDURES GOVERNING SATISFACTORY PARTICIPATION
C 7, AR 15+91 23 March 1970
20. Appeals. r. Greve’? Am oulividaal whe has
been denied a requested discharge ov delay in order
to active duty may appeal such denial. The appea!
will be submitted within 15 days of the member's
reveipt of a denial; it will explain those facts per-
tinent to his case which he feels were not fully con-
sidered, and may include any additional appropri
ate evidence which the applicant may wish to
present
b. How submitted. Requests for appeals will be
submitted through the unit commander to the com-
manider having authority to approve discharges or
delays as preseribed in paragraphs te and 194 as
appropriate.
¢. batherity ton? on appeals, The approving
authority may act on such appeals when the deci-
sions are favorable to the individual concerned.
When denial of an appeal is indicated, however.
he will forward the request and pertinent records.
together with his recommendations, to Headquar-
ters, Department of the Army for final determin:
tion as follows:
(1) Denial of appeal for dix harge.
(a) State adjutants general will forward
denial of appeals for disharge to the Chief. Office
of Reserve Components, through Chief, National
Guard Bureau, Department of the Army, Wash-
ington, DC 20510.
x (3) Agencies of Headquarters, Department
of the Army, area commanders and CG, USAAC,
will forward denial of xppeals for discharge to
Chief, Office of Reserve Components, through
Chief, Army Reserve, Department of the Army.
Washington, DC 20310.
(2) Denial of appeal for delay.
(2) State adjutants general will forward
denial of appeals for delay to the Commanding
Officer, U.S. Army Reserve Components Person-
nel Center, Fort Benjamin Harrison, IN 46249.
through Chief, National Guard Bureau, Depart-
ment of the Army, Washington. DC 20310 for
processing under AR 601-25.
ww (5) Area commanders and CG, USAAC,
will forward denial of appeals for delay to the
Commanding Officer, U.S. Army Reserve Com-
ponents Personnel Center, Fort Benjamin Harri-
son, IN 46249 for processing under AR 601-25.
@. Appeal of involuntary order to active duty.
If an individual appeals k's involuntary order to
active duty for reasons other than those specified
in this regulation, the denial of such appeal will
be forwarded to CO, USARCPC in accordance
with ¢(2)(2) or (3) above as appmpnate. The
member's DA Form 201 (Military Personnel Ree.
ords Jacket, U.S. Army) wil! be forwarded in all
appeal cases.
@ Board of officers. The Commanding Officer,
US. Army Reserve Components Personnel Cen.
ter will convene a board of officers to determine
findings and submit recommendations on denials
of appeal of involuntary order to active duty sub-
mitted under this regulation. The board will fol-
low procedures as set forth in AR 15-6. The format
of the board Proceedings will be prescribed by
the Commanding Officer, U.S. Army Reserve
Components Personnel Center.
C 9, AR 135-91 8 April 1971
xe. Appeal board. The Commanding Officer, US.
Army Reserve Components Personnel Center. will
convene an appeal board to determine findings and
submit recommendations to him on denials of ap-
peal of involuntary order to active duty submitted
under this regulation. The board proceedings will
be as prescribed by the Consmanding Officer, U.S.
Army Reserve Components Personnel Center. The
provisions of AR 15-6 will not be applicable to
such proceedings.
A5Y
AR ce 91
Cnancr | Me: Mie
DEPARTMENT OF THE ARMY
No. | Wasnixcton, DC, 20 January 1970
RESERVE COMPONENTS
POLICIES AND PROCEDURES GOVERNING SATISFACTORY
PARTICIPATION
Efectire 30 March 1970
This change prescribes procedures for processing members who enter
an AWOL status from initial ACDUT?A: provides for notifying a mem-
ber of his right to appeal inroluntary order to active duty; authorizes
the CO, USARCPC to prescribe ti:7 format of board proccedings in .
appeal cases; and provides procedures to authorize certain enlisted
members to fulfill. bona fide, temporery, nonmilitary oversea
obligations.
AR 135-91, 11 June 1968, is changed es follows:
1. New or changed material is indicated by « star.
2. Remove old pages and insert new pages as indicated below.
Renore paces— Insert pegea—
7 through 12.2........-.---------------- 222-2 ee eer ener ee 7 through 12.2
eel hn acwnccnssresbeneessconnseoneaore 17 through 18.1
ip IE SS RAE AS een ee ee D-1
3. File this change sheet in front of the publication for reference purposes.
The proponent agency of this regulation is the Office of Personne! Operations.
Users cre invited to send comments ond sugzerted improvements on DA
Form 2028 (Recommended Chances to Publications) to Commanding Officer,
U.S. Army Reserve Component: Personnel Center, ATIN: RCPL, Fort
Zenjamin Harrison IN 46249.
By Order of the Secretary of the Army:
W. C. WESTMORELAND,
General, United States Army,
Oficial: Chicf of Staff.
KENNETH G. WICKHAM,
, Major General, United States Army,
The Adjutant General.
Distribution:
To be distributed in accordance with DA Form 12-9 requirements for AR,
Reserve Components:
Active Army: C (quan rqr dbiock No. 226).
ARNG: A (quan rqr dlock Ne. 224).
USAR: A (quen rqr bloc No. 224).
*This change supersedes DA messzze NCPL 07340CZ Nov 69 (U), subdject, Interin
Change to AR 135-9! (Change ©).
TAGO 504A—Janvary [°°9-471°—70
RANI 4
ane RIN EE
Berner re Re Cae Ch haat ae eee
A60
AR [25-91
CItANGE | MNEADQUARTERS
DEPARTMENT OF THE ARMY
iS a Wasitnetox, DC, & pri? 137
RESERVE COMPONENTS
POLICIES AND PROCEDURES GOVERNING
SATISFACTORY PARTICIPATION
Effective 1 June 1971
This change authorizes equivalent training when a member's employer
schedules carcer training which conficts with regularly programed unit
drills; provides for the retention of DID) Form {/ at Army or State
headquarters until orders to involuntary active duty have been issued ;
clarifics separation from active duty as the result of unsatisfactory par-
ticipation; provides for amendment or revocation of aclive duty orders
when appeal action is in process: redefines the procedures for USARCPC
appeal boards; and clarifies Procedures for reassigning menbers who
become disqualified for further airborne t raining.
AR 155-91, 11 June 1968, is changed as follows:
1. New or changed material is indicated by astar.
2. Remove old pages and insert new pases as indicated below :
Remove pages Inert pages
a»
s-4 "9
»
“>
cS ia a hs Sap secre eel RE OA Se Ss Ne 3
3. File this change sheet in front of the publication for references purposes,
The proponent agency of this regulation is the Office of Personne! Opera-
tions. Users are invited to send comments and suggested improvements
on DA Form 2028 (Recommended Changes to Publicatiens) direct to Com-
manding Officer, U.S. Army Reserve Components Personnel Center, ATTN:
RCPL, Fort Benjamin Harrison, IN 46249.
By Order of the Sceretary of the Army:
W. C. WESTMORELAND,
General, United Statice 4 rm},
Oficial: Chief of Staf.
VERNE L. BOWERS.
Major General, United Stutes 1; m4,
The Adjutant General.
Distribution:
To be distributed in accerdance with DA Form 12-9 requirements for
AR, Reserve Components.
-lctire Army: C (qty mp block No. 226).
ARNG: A (qty rqr block No. 224).
USAR: A (qty rgr block No, 224),
mone ee ee
2ernNweyne
oo _—_— ee ——
wLSaA‘oe 7
2) a
rrom: DA OPO USARC?C FT TahiscIK Nec UTsOs Ih RCPL-52
: CGUSAOXE FI iSAbo ho (aATRES 12)
CQUSATHKCE Fr Macises Ga (ica)
CGUSAFOUR FT SAN HOUSTON TA (AIRMAIL) -_
CGUSAFIVE FI SHERIOAS iL (AlRALL)
CGUSASIX SFRAN CA ATRATL)
CGUSARAL (AIRMAIL)
CINCUSARPAC (AIR 1)
CGUSARUAW SCHOFIELD bXS HI CAIRMATL)
COMUSARSO (AIRMAIL)
CXGB (AIRMAII)
CGUSAAC STL MO (AIRMAIL)
INFO: CINCUSARLUR (AIRMAIL)
CCCONARC (ATILLNIL)
UNCLAS
&CTCOM
RCPL
Subject: Appeal of involuatary Order to Active Duty for Unsatisfactory
Purticipsiion. |
a, See a ee ee ee — wer TAD ee — "7m. —
CONC, CAR, TAG-OSARVA, USARCPC LEO, USCONANT LN0, GFOEX, LBOMR, ARADC::: |
’
Me Oey. | Coft vg erg a cece | |
je partons EORTC Ce Ye CI .
I PERIL ETNA OMG OEE
O35 PHI
ne
POLLEN FL IE SAE PN SS
\62
o* = — - ~_- _—- -
prorers § +i. SRENG
bia! eS Se) cae IRS Siete sca a Seed — ret
6908 MESS* TE HANSL NS S°E SSTIONS
Ornweuvet
wuestions have gp the policy ef net authorizi
persona! appearances before bcarcs consicerins peal of invol<xtar
orcer to active duty
2. Im order to cisrify tic policy, peragrar> 20e, AR 135-391, will be
amended by printed change to read as follows:
“e. Appeal Board. The Commanding Officer, US army Reserve Conpenents
Personnel Center, will convene an appeal board to deterscine fincings and
submit recommendations to hiz on denials of appeal of inveluntery orcer
will be as prescribed by the
Components Personnel Center. The provisions cf Arsy Regulation 15-§
3. The above provisions are effective irmedcictely.
rer = < - eet. .~nnwaneAias?
4. Request CN advise State AG's accordingly.
—— eel
O:STk:
AT ree Ieee. ee eee = 4 sn “= we Bae>-
OA Tyf DORA S. T328E CoP. © S¥MIOE AND Pred SPECIAL STATIONS
: : sf : = -
rt j SECURITY Fo. mer eT UN
; '
- { Uist i
2, ee aes
~ ~~ oo ale ee - ie
;
z
3
ba
>
£
4
Me
r
‘
¥
Fy
A63
DEPARTMENT OF THE ARMY 1A CIR 135-7
READQUARTERS FIRST UNITCO STATES ARMY
FORT CEORGE G MEADE MARYLAND 20755
EXPIRES 24 NOVEMBFR 1971
LACULAA 24 November 1970
NUMBER 155-7
$
RES COMPONENTS f
%
APPEAL OF INVOLUNTARY ORDER TO ACTIVE DUTY FOR >
UNSATISFACTORY PARTICIPATION 5
>
Department of the Army, OPO, RCPC message 1314302 Nov 70, subject as ¥
above, is guoted in part for information and compliance: t
‘’ &
"2. Questions have been raisec concerning the policy of not authorizing
personal appearances before boards considering appeal of involuntary
order to active duty for unsatisfactory participation.
"2. In order to clarify the policy, paragraph 20e, AR 135-91, wili be
3 nted change to read as follows:
e. Appeal Boarc. The Commanding Officer, US Army Reserve Components
€
Personnel Center, will convene an appeal board to determine findings ang
submit recommendations to him on denials of appeal of involuntary orcer
te active duty submitted under this reguiation. The board proceedings
will ve as prescribed by the Commancing Ofticer, US Army Reserve Components
Personnel Center. »Tne "provisions of Army Regulation 15-6 wili not be
applicable to such proceedings,'
"3, The above provisions are effective immediately." (AHAAG-CA)
CLP AG PNEAY NOELIA WLLL TIT EOE I EP
FOR THE COMMANDER:
OFFICIAL: R. G. CICCOLELLA >
Major General, GS
NX
Littl
Chief of Staff
/
Hi. J. WEBS
} Colenel, AGC
~~
Adjutant General i
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YU. 5. ARTY .COTRVE CO™“PONCMIS t+ CIisONNCiL CENICR
FORT UllJAMIN HARKILON
INDIAN AFOLES. INCIANA 46269
“«¢s + emer eres
acra-S 30 July 1972
fEMORANDUM FOR RECORD
SUBJECT: AR 135-91 DELAY APPEAL BOARD RECORD OF PROCEEDINGS
1. Pursuant to letter, Headquarters, Departrent of the Army, RCPC, dated
1 July 1972 subject: "AR 135-91 Deiay Appeal Board,”
a Board of Officers was convened at 9345 hours ? yulv 397)
at Fort Benjamin Herrison, Indiana. The Board met to review and nake
recommendations on the delay appeal (paragraph 20c(2) & 20d, AR 135-91),
of PVT Leicester F, Coruso, 192-3/:-6455,.
2. The following members of the Board were present:
FRENCU, JOLT 4, SS*AN 264-238-3229, COL, AD (PHSIDXNT)
DOUCLAS, LAUTLNCo Ue, SSAY 302-26~-7150, LTC, Int
TGRIALN, BIG De, SSAN 519=-3°—356S, MAT, nf (RLCURDE® H/o YuT=
STEVES, UEFSCULLL Le Fey SSAN 447-146-0065, Gila, AUS
3. The other members of the Board were absent with the concurrence of
the President and convening authority.
4. The Board members were polled to determine if any member had ;rior
knowJedge of this case that would prejudice his ability to render a fsir
and impartial ¢2cision. No member of the quorum was disqualified as a
result of this pell.
5. Findings: Waving carefully considered the facts and documents subnitte+
by PVT Leicester F, Caruso, 192-34-5565, incidental te his .iels;
appeal epplication the Board finds: that the docurentatica submitted Sais to
Guclify the applicant for mitigatic: or relfef from his lavolunterys ceil ic
active duty.
a. A detailed eaaiysis of this case reveals that the acninistretiv:
facters required to senport on inyolutary call to actiy2 cuty for unsetice
factery particizatioa i:cve been censuaswated. This review included exec act's
of the petitioner*s Military Perce.ael Records Jacket (24 Foon 201): 2 20: 2:
letter of «ppeeal for r2lief from call to active @etyy and severs!] ferwes Sicr
comniad iudcrses= 1tse
ero, RCrc TL
Rev 1 Rec 70 133
wee %.
Lal
ray
Bach Cea nea
A67
b. The tense of the petitioner's appeal is ¢° i vctes toward justifying
he knowingly and willfully violated specific ,--sfence concerning his
atisfactory attendance. tis stated extenuation «is uucrainmously viewed as
upported and unacceptable greunds for favorable smsidczation by this
rd. is
FITTV TATA AT AAA LAL PSOTRILE rotLows /////I/ ESI
Recommendarion(s): In view c& the findings ir peragraph 5, the Soerd
contends disapproval of PVT Cezriso's appeal from iis involuatary order to
ive duty.
.
The Board adjourned at 1540 hours. 21 July 1971.
S/JOHN W. FRENCH
JOHN W. FRENCH, COL, AD (PRESIDENT)
S PRICHARD D. ?ERIAUX 7
ZICHARD D. MERIAUX, MAJ, In
(RECORDER)
Disscating Vote(s): None.
Action ty Ccnvening Authority: The recommendation of the Board is epprovec.
- ORDER OF THE SECRETARY OF THE ARMY:
- S/JOHN 8. HOFFMAN =
istributicn:
Original - TAG File. JORN H. HOFFMAN
Copy -. Field 201 File. Colonel, ADA
Copy - USARCPC File. Commanding
rae 2
PO, nCPC FL 331
ev 1 Dec 76
A68
§. Findings: Having carefully concicered the facts and documents submitted by
FVT vohn C. O'Hara, 207-341-5118, incicenta to his ce"ay
appecl eppl:cation the Bocre fincs: that the docunenta tien submitted fairs to.
qualify the acplieznt for mitigation or relief fron his involuntery
call to activ: duty.
a. & detailed anzlysis of this case reveals that the adminis*rative
factors revwuirei to cunners on involuatery call to active cuty for
unsatisfactory warticinztion have been consummated. This review incluted
exonination of the petitioner's Military Personnel Records Jacket (9%
Form 201); 3 April 1$70 Jetter of appeal for relief from call to active
duty; and several : fort:aurcing command indorsements.
b. The tense of the petitioner's appeal is directed towerds
justifying why he Mmowvingly and willfully violated specific guidance
concerning his unsati clock tory attendance. His stated cxtenuation was
unaninowzly Viewed as unsupported and t unacceptable grounds for favoretle
consideration by this 3oeard.
c. The Board found that petitioner failed toattend six unit assevblies
on the following daics: & Nove-ner 1969 (2); 9 Novender 1969 (2);
7 December 1969 (2); lt his aliesation thet he had been told not to
attend xnit-assemblies was umsubdstentiated.
TUM MTT MATT 1 PSOE. POLLO Ss//IILHIMILITUIHILUIILITT
6. Recommendstion{s): In view of the ebove findings, ¢ the Board recommends Cisasnrevet
of PVT O'¥cra's appeal of involunicry active duty.
’
ee we REPLACES OFO FL 133, 1 SEP C2, WHICH MAY BC USED.
A69
5. Findings: Having carefully considered the facts and documents submitted by
Peiwece aridust ti. Bo bsap en. lad “Pete 524, incidental to his delay
appeal application the Board finds: Zur. i. feeus tation pevatte: fatls
guasiss she 2 -blecrt rer efitoation or eclics from hts (nvoluniaty <é.i
lo active Jury. R
ee A cetriled ansl;sis ef sts “as Bevedis uae tas Esinlsteerive
ot. -
fecters regulret to suppert o. involuncacy coi: 26 2ctive cute for une
netisiectecs ratcieicn. fon bow: beet. ceases lee. This ceview dacleesd
QNocch 197 Vetcer o: egpoal fer reiies
hig ond stvecn) serwirdias Cuan’ Lacor cmenise z
eremtuation ef tnz rstitioner!s
fzum cai! co Sctive -
tion oh append it eirecled tewards Juticl; ing
le vaulresd ogee. fhe pusesnce comcarming 32
Mts strted extemaztion we. unactizersiy views
Dd. the tewe OF Che peti
way he kmecda ty asa williwl
uasericfacters Athens.
Qe wataprertesi feud vac. ees TSie: peGhw *
this Poured,
for fepernbie cor:téerwton ty
METAL TULUM E ES pene ALT ad
6. Recommendation(s
ecrore = - 931
5): In view of the above findings, the Board recommends -!:s pp lu+2ie
A70
5.. Findings: Having carefully considered the facts and documents submitted by
PVT Eugene J. Drennen, 195-40-4523, incidental to his delay
appeal application the Board finds: that the documentation submitted fails to
qualify the applicant for mitigation or relief from his involuntary call
to active duty.
a. A detailed analysis of this case reveals that the administrative
factors required to support an involuntary call to active duty for unsatis-
factory participation have been consummated. This review included exami-
nation of the petitioner's Military Personnel Records Jacket (DA Form 201);
25 May 1970 letter of appeal for relief from call to active duty; and
several forwarding command indorsements.
b. The tense of the petitioner's appeal is directed towards justifying
why he knowingly and willfully violated specific guidance concerning his
unsatisfactory attendancé. His stated extenuation was unanimously viewed
as unsupported and unacceptable grounds for favorable consideration by
this Board. -
MATT TATA TATA PSOTRING FOLLOWS////// 0000000001
6. Recommendation(s): In view of the above findings, the Board recommends disapproval
of PVT Drenaen's appeal from his involuntary order to active duty.
OPO, RCPC FL
ghee age 131 REPLACES OPO Fi 131, 1 SEP 69, WHICH PAY BE USED.
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