# Petition for Writ of Certiorari — Moxey v. Seely > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1743%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1974 - **Citation:** 416 U.S. 970 ## Text —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 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 z 5 = = & F : ZL & Fa & +. me = * a = = ® = b t Fr = = ' 2 eh A6 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: ALAN L. ATTERBURY 1LT, AGC Asst AG A8 yssw.Eh Sr H fla. Gir, Has, (?° OS a, Der Sa: The Re, do a Acer td, Mary Sw wee Rta. enrolnatea Hs Srents at 4 dejoctucl Gan, prey es: iS S wake i? eer re ee the- cor) tle 44 cy oucf te haw me a web . phere corevinrahrn aint = Gap covinl With Mes. O° Bus eae NO SS Re Re ge — AQ wher ths LeMle, UnntSD we) na, Ne Dar) Lis Bed & Bec? ca Atte s draft Guncd ParD ba JF Dave ££ Pee? cape I pust to me Da wi | ; a ee Ke Adseodd ‘ieee vo ky “TL wecthed ind S a0; Tuale 2 T Sinden? A te cilia es ote: Cancdnhe Pi {Qu T wade oe my appeal jo Sale.” ees COVA eee Mg OB - > Bef ALueral Rittuhns rare mn Hy Spse. Naclarra +H carb rho hac gular - AA leet. re Henn wwku eo Pe, oe a. Ga % ona leatlon down whirt deo wnat ps sm tla fest plume amrtwuatim , 5 To fees Win th. L £9 poserone dS we tind Fad a co Nod itian, Podnen. yee ae ae are oteam Mra. We Par Sr Dut al deal ol bees avs CH pr Ha a. are ap peaan tty \eontek of Oere el Al0 Lrsuiole +c we Lf come te Woe mss PAY A) Fa i - Mae JEWS OWQ adhe & ‘ ewe Stowe 4 Oe te eal ae Aud ached i tly CO Lad ARnw - omy L' 9 aay - S apelee unt Astral people ale Cccaritro urban He KE Site eh Ctewt, 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 —————————————— —_ 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 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 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 = - 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 DISTRIBUTION: ACL thru 17 and 20 only) K,L,0 L = AHAAG-MR (Ref Library) Serres seem HPCE TONES ART £9 ON REO YT OM ‘ ee a — ‘ U.S. Accm¥ BESS = ~saec > @} S-+e- wee -- one: “. she OL. SWIRS Beers wo Gk Solste Soss TESENCS .- 4 . -- . - “? oon =. - a -— -_—-. ~~. awe 5 _ "2 ~ Co cution: Sviginel - TAG File. Sopy - Field 201 File. Cozy - USARCPC File. ¢ resonmendaticag of the Cosrd 16 aporevet. PRBS Baek ahs Jo le LASS, ad Cowusicias ll sai od IR AS baa Oe PASAT A66 eo ee . Set Nearer ita) ica Reset ee dle Ge Vol dbidl 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1743%3A1. Public record. Not legal advice.