DocketNumber： Civ. No. 70-305
Citation Numbers： 314 F. Supp. 998, 1970 U.S. Dist. LEXIS 11402
Judges： Kaufman
Filed Date： 6/9/1970
Status： Precedential
Modified Date： 10/19/2024
Robert?’ petition for habeas corpus relief raises issues concerning the obligations of a soldier after “[t]he Army lost [him] in its vast organization,” Beaty v. Kenan, 420 F.2d 55, 59 (9th Cir. 1969), and the right of the Army, pursuant to . 10 U.S.C. § 972,
Roberts, a Baltimorean, was inducted into the Army on March 12, 1968 for a two-year term. On February 1, 1969, while stationed at Fort Carson, Colorado, he received orders to report to Oakland Air Terminal on February 26, 1969 for assignment to Viet Nam. While the record does not definitely reveal whether “written or oral orders”
Roberts also has informed this Court that he arranged passage on Trans World Airlines from Baltimore to Oakland on February 26, 1969, but that he did not make that journey on February 26, 1969 because of his telephone conversations on February 25, 1969 and February 26, 1969 with Sgt. Morris and with the non-commissioned officer at Oakland. In any event, it is clear that Roberts remained at home and neither received word from, nor contacted, the Army until October 8, 1969 when he dis
1. This office in receipt of your letter, postmarked 8 Oct 69, concerning your current assignment status.
2. Before any assistance may be provided you regarding this matter; it is necessary that you return to military control. Therefore, it is suggested that you report to the special processing detachment at the nearest Army installation as soon as possible. Upon your arrival your disposition will be determined by authorities at that installation and assistance will be provided to alleviate your problem.
On October 20, 1969, Roberts reported to Fort Meade, Maryland, gave them the telegram, and, according to Roberts, was told:
This is the first time I ever heard of anything like this; you’re not AWOL so we can’t take you here.
Roberts then states that he went home, further pondered the situation, and, on October 27, 1969, seven days after his wife had a premature baby who died on October 22, 1969
Specialist Roberts was in a leave status from 1 February 1969 until 26 February 1969. From 27 February 1969 through 26 March 1969, he was in a duty status, at home awaiting orders. From 8 October 1969 until 27 October 1969, he demonstrated his intent to effect his return to military control and this period should also be considered to be duty time.
Thus, the Army, in its final action on April 21, 1970, credited Roberts with time between February 27, 1969 and March 26, 1969, and time between October 8, 1969 and October 27, 1969. Both of those periods of time had been earlier included as “lost time” by administrative action taken under 10 U.S.C. § 972 at Fort Meade after the court martial proceedings. Thus, the Army’s final determination is that the period of “lost time” commenced March 27, 1969 and ended October 7,1969.
An internal Army memorandum, prepared by Lt. Col. Cook, Chief, Military Personnel Law Term, Military Affairs Division, and dated April 15, 1970, has been forwarded to this Court as a part of the Army’s record in this case. That memorandum was prepared in support of a recommendation that the period from March 27, 1969 to and including October 7, 1969 be classified as “lost time” — that is, in support of the subsequently determined final position of the Army as stated by the Adjutant General on April 21, 1970. The memorandum concluded as follows, after, in substance, reciting the facts related hereinabove: In evaluating the evidence contained in “home awaiting orders” cases to ascertain whether there was sufficient evidence to support an administrative determination of AWOL as opposed to “duty,” particular attention has been given to circumstances indicating that the member could have believed that his absence was or was not authorized, based on his orders, written or oral', and the fact that an administrative determination of AWOL must be based upon substantial evidence. In previous cases, this office has expressed the view that where the member concerned was or may reasonably have been misled by his orders as to his status and made reasonable effort through military authorities to ascertain this status, he could properly be found to be in a duty status, notwithstanding that he was not in actual military control; however, when those circumstances are absent, a determination of AWOL is appropriate. Further, this office has recently taken the position that the member must demonstrate a good faith belief that he was authorized to remain at home for an extensive period (JAGA 1969/4890, 12 Jan 1970).
In all “home awaiting orders” cases, the member must not only act in good faith in remaining at home, he must also make reasonable efforts to ascertain his status when no orders are received within a fairly short period. If a member fails to make such reasonable efforts, this is taken as persuasive evidence that the member is no longer acting in good faith (JAGA 1969/4879, 7 Jan 1970).
Although, as indicated above, there is no direct evidence in the file that written orders were ever cut, it appears from the language in the appeal that such was the case. Par. 8 of the appeal states that “ * * * [o]n 1 February 1969, subject enlisted man was ordered to report to Oakland Army Terminal on 26 Febru
Then, in par. 9, with reference to the fact that Roberts never received his personal effects from Ft. Carson, the following statement was made:
« * * * [h]owever, the personal effects (including the Orders assigning him to Oakland Army Terminal, and then to Vietnam) never arrived. •X- * * »
It appears then, that written orders certainly existed, were probably seen by Roberts before clearing Ft. Carson, but for some inexplicable reason, were not given to him before he left and were not sent to him at his leave address.
On the day his leave ended, Roberts apparently took certain steps to effectuate his return to duty. He made arrangements to fly to OAT but since he had no orders, he called OAT for instructions. These instructions were, as noted in par. 10 of the appeal, to, in effect, stay home and await further instructions. The record does not reveal the nature of the phone calls to Colorado Springs on the two previous days.
In cases where members are not in possession of orders and are told to remain home and await orders, this office has seen fit to allow such individuals a reasonable time in which to remain home pursuant to such instructions without taking further action to ascertain their status, assuming that the instructions given were credible, whether or not correct procedurally. Generally, a period of one month has been considered to be a reasonable time in which to await the promised orders without the requirement that further action be taken. After that period, however, continued inaction on the part of the member has been considered to be a breach of good faith on his part.
Certainly, Roberts showed good faith in arranging for a flight to OAT and in calling OAT to make sure he was doing the right thing. Furthermore, there is nothing on the record which would indicate that he was not. justified in relying on the instructions allegedly given to him over the phone. For this reason, he should be allowed a reasonable time in which to have awaited further orders. After this time had passed, however, it was incumbent upon him to make reasonable efforts to again ascertain his status. Whether or not orders assigning him to OAT were actually cut before he left Ft. Carson, there is no doubt that he was aware of where and when to report, although written orders, if any, apparently never came into his possession. He therefore was at least on notice that his authorized leave ended on 26 Feb. 1969, despite the alleged telephonic instructions from OAT personnel. It should be obvious to the average soldier that telephone instructions to go home and await orders could or should be relied on only up to a certain point, beyond which one’s reliance on them cannot be justified by any standards. It is for this reason that a one-month grace period has been arbitrarily selected — to give the AWOL individual every benefit of the doubt, in questionable cases, so as not to unjustly penalize him for relying on vague or erroneous instructions of Army personnel who act under color of authority.
With regard to possible excusal of the time Roberts spent “at home awaiting orders” after the month’s grace period, he must affirmatively demonstrate for the record that he had cause to continue in the good faith belief that he was justified in remaining at home. In order to so demonstrate his good faith, he must show evidence of affirmative efforts, within reason of course, to ascertain his status and that he found just cause as a result of these efforts to continue to believe that he was authorized to remain at home, without fear of penalty.
The record in this case is devoid of any evidence whatsoever of attempts on the part of Roberts to ascertain his status during the period 26 Feb 1969-8 Oct 1969 (over seven months). It would
There is no question that Roberts once again made efforts to ascertain his status from 8 Oct 1969 when he wrote DA requesting instructions as to what to do. He demonstrated his willingness to comply with any instructions which were forthcoming as a result of his inquiry to DA by the fact that he reported to Ft. Meade in accordance with the instructions he received. For this reason, the period during which he awaited a reply from DA should not be charged as time lost.
With due consideration for the domestic hardships suffered by him at one point, it appears that he demonstrated good faith in his efforts to ascertain his status from 8 Oct 1969 until he was incarcerated by the MPs on 27 Oct 1969. His “good faith” would be questionable here as well if the record indicated that he acted to return to military control solely on the advice of counsel. However, the record does not show that he acted in any other way than voluntarily and of his own accord.
It is recognized that Army officials occasionally mislead individuals into reliance on faulty advice to their detriment, and that individuals who do make efforts to ascertain their status are often rebuffed, confused, or even ignored by Army officials. Fault on the part of the Government does not, however, give an individual impunity to relax his efforts to return to military control. The fact that the Government can be and often is at fault is the basis for the “reasonable time” rules established by this office. These rules, however, do not excuse a continuing period of inactivity such as the one in this case. Roberts, therefore, should be required to make up the time period specified in the “streamliner.”
The opinion in this case is bottomed entirely on the “facts” provided by the appellate brief of Roberts’ counsel, and thus it can be assumed that the decision has been reached in light of the best case that can be made for appellant.
There is, as indicated above, a paucity of case law in connection with the issue presented herein. In Beaty v. Kenan, supra, the soldier therein involved, after enlisting for a two-year Army term on February 9, 1967 and while in Germany for training, volunteered for duty in Viet Nam. On- November 9, 1967, he received orders granting him a sixty-day leave to visit his family in California, and instructing him to report at Fort Lewis, Washington, but not informing him of the specific time to report. Before the expiration of his sixty-day leave, Beaty attempted to ascertain when to report, first by a telephone call in December, 1967 to a recruiting sergeant at a California post, and also by a telephone call on January 15, 1968 by his parents to the Classification and Assignment Center in Washington, D. C. The latter call was placed because the recruiting sergeant had advised Beaty to stay at his home and await orders, or if he desired, to call the Classification and Assignment Center. The call to the latter by Beaty’s parents elicited the instructions that their son should await further instructions.
On March 30, 1968, about two months after his sixty-day leave had expired, and after Beaty was involved in a California automobile accident, two telephone calls, made by Navy security personnel in California to Fort Lewis, elicited the information that Beaty was not AWOL and the instructions that he “was free to go home and await orders as before.” Beaty v. Kenan, supra 420 F.2d at 57.
On March 17, 1969, five weeks after his original two-year enlistment term expired, Beaty appeared at a California Army post and requested his discharge. Thereafter, the Army determined that Beaty was required to make up time lost
no basis in fact for holding that two weeks later, on April 15, 1968, he was under a duty to seek further information. In conceding the reasonableness of appellant’s action from January 29 to March 30, the Government vitiated any basis in fact for claiming that appellant was again under a duty to clarify his status a mere two weeks after LeMoore Naval Air Station directly contacted Fort Lewis and was told “[s]ubject was not AWOL and was free to go home and await orders as before.” We think it important to note that the conceded reasonableness of appellant’s action in February and March was based upon (1) the December contact with the recruiting sergeant in appellant’s hometown (C.T. 22), and (2) his parents’ call to Washington on January 15 (C.T. 28). If these actions justified the absence of appellant for the two month period conceded by the Government, we think that appellant was justified in relying for a further period of time on the information he received directly from Fort Lewis while his status was being checked at LeMoore on March 30.
Sometime before February 9, 1969, when his enlistment ended, and before March 17, 1969, when he requested his discharge, the Army should have caught up with him. It did not do so, and in the unique posture of the facts of this ease, we can find no basis in fact for holding appellant violated his “continuing duty” to use reasonable efforts to ascertain what his Army orders were, [at 59-60] [emphases in original] .8
The Government urges that Beaty is distinguishable from the within case because Beaty did not know the exact date he was to report whereas Roberts did; that Roberts waited until the last two or three days of his leave before he made any effort to obtain instructions; and that an additional check in Beaty’s case was made by the Navy Patrol. But in Beaty, the soldier had no contact with the Army for nearly one year (March 30, 1968 to March 17, 1969) as contrasted with almost eight months (February 26, 1969 to October 8, 1969) in the case of Roberts; and in this case, Roberts contacted the Army authorities, not as did Beaty for the purpose of seeking a discharge, but rather to obtain instructions at a time when he still had about six months of his service period ahead of him.
In McFarlane v. De Young, supra, petitioner, inducted into the Army for a two-year term on September 6, 1967, was ordered on February 27, 1968 to report to Fort Lewis on April 1, 1968 for assignment to Viet Nam. About March 1, 1968, he began a thirty-day leave. Approximately on March 24, 1968, while on leave, he was hospitalized for an
In Patnode v. Alexander, supra, Judge Harvey, in this Court, granted habeas corpus relief in a case in which the soldier-petitioner made numerous efforts to elarify his status and to obtain instructions. In that case, as in Beaty, Mc-Farlane and herein, the Army lost track of the soldier and was unable to produce anything like complete documentation. While such occurrences can perhaps be expected in what is an enormous manpower operation, the Army’s applicable regulations fail to specify the exact number of days, after a soldier has last had any contact with the Army, which may pass before that soldier has an affirmative duty again to get in touch with the Army.
The Army’s applicable regulations do, however, provide, in implementing 10 U.S.C. § 972, that a soldier "who renders himself unable for more than one day to perform duty” because of his “absence without authority”
The policy analysis set forth in Lt. Col. Cook’s memorandum, quoted from extensively, swpra, is consistent with the provisions of the Army’s applicable regulations as set forth in AR 635-10 and 635-200. That analysis and those provisions, as does the Ninth Circuit’s opinion in Beaty, subject the individual soldier to the extended service provided by 10 U.S.C. § 972 if an individual soldier, after he has been lost by the Army and himself asks the Army for orders, fails to try again to obtain orders after the passage of a period of time following his last such prior attempt and after a date has arrived at which he knew or should have known that he had a duty to contact the Army once again. The Army has apparently not provided any more definite standard for the guidance of its soldiers, its administrators, or reviewing federal courts.
In this case, the basic question is whether Roberts knew or should have known on March 27, 1969 that he should, on that day, have again contacted the Army and tried to secure his orders. In determining whether there is any basis in fact for the Army having answered that question in the affirmative, all of the developments between February 1, 1969, i.e., the date Roberts received orders to report to Oakland on February 26, 1969, and October 27, 1969, i.e., the date Roberts went to Fort Meade for the second time, are relevant. There would appear to be little question that, at some time prior to October 8, 1969, i. e., the date Roberts wrote to the Pentagon, those events provide a sufficient circumstantial basis in fact for a determination that Roberts knew or should have known that he should have contacted appropriate Army authorities in connection with his status. That conclusion, of course, does not in and of itself answer the more narrow question of whether those
This Court reluctantly concludes thát there is such a basis in fact. In reaching that determination, this Court would be far more comfortable if the Army had initially selected a date later than February 27, 1969; if the Army, after this case had been instituted, had chosen a date later than March 27, 1969;
The Army seemingly does not challenge the jurisdiction of a federal court in a habeas corpus proceeding to review final Army administrative action under 10 U.S.C. § 972, and to apply the “no basis in fact” standard of review. That test was specifically applied in Beaty v. Kenan, supra, and in Patnode v. Alexander, supra, in both of which cases relief was granted; and seemingly also in McFarlane v. De Young, supra, in which relief was denied. In Patnode, petitioner therein contended, inter alia, that the no-basis-in-fact test was too restrictive to apply in a federal habeas corpus proceeding challenging an administrative determination under 10 U.S.C. § 972.
10 U.S.C. § 972, and the Army’s implementing regulations discussed supra, neither provide for, nor in any way indicate a contemplation of, court review. Nor do they contain any requirement of a hearing. In that connection, it is noted that in Patnode, petitioner also contended that the words “competent authority,”
There remains the contention that the Army violated its own regulations by failing to mail the ten-day next-of-kin letter referred to in AR 630-10, par. 5, which provides that when a soldier is absent for ten consecutive days, his unit commander is to mail a letter to the absentee’s nearest relative advising the latter that the soldier is ab
For the reasons stated in this opinion, Roberts’ petition for federal habeas corpus relief is hereby denied.
I. 10 U.S.C. § 972 provides, in part, as follows:
An enlisted member of an armed force who (1) deserts; (2) is absent from his
Similar but not identical language is set forth in the Army’s implementing regulation, AR 635-200, pars. 2-3. See n. 10 infra.
. Copies of the Patnode and McFarlane opinions are included in the official file in this case.
. The three cases are the only ones which have been brought to or have come to the attention of this Court.
. Memorandum prepared by Lt. Col. Cook, dated April 15, 1970 accompanying the submission of the within case to the Judge Advocate General of the Army prior to a ruling therein by the Adjutant General of the Army on April 21, 1970. That document is discussed and quoted from, infra.
. Roberts alleges in his petition herein that the premature birth was “partly due to the extreme aggravation and anxiety endured” by his wife and himself during the period since February, 1969 and “partly due to the financial pressure resulting from not having received any money from the Government since February, 1969.” The Government has informed this Court that Roberts was paid $300.00, in advance of his regular pay day, on February 1, 1969; a second advance of $121.00 on that day on his February, 1969 pay, his January, 1969 pay having been fully covered by the aforesaid $300.00 payment; that Roberts’ wife reecived an allotment of $130.00 per month during the February, 1969-Oc-tober, 1969 period plus $6.25 per month for savings bonds; and that the Army was, on May 6, 1970, then deducting from Roberts’ pay certain of the money so loaned to Roberts in February, 1969, as well as the aforesaid payments to Mrs. Roberts during the February, 1969-October, 1969 period. Roberts also apparently received no pay during the period after October 27, 1969 in which he was confined in the stockade at Fort Meade. See discussion, infra, in the body of this opinion, concerning that confinement.
. AR 635-200. See n. 10 infra.
. Xo contention has been made herein that any further review by the Army’s Board of Correction and Review is necessary before this Court should rule on the issues herein presented. See United States ex rel. Brooks v. Clifford, 409 F.2d 700, rehearing denied, 412 F.2d 1137 (4th Cir. 1969). But see Craycroft v. Ferrall, 408 F.2d 587 (9th Cir. 1969), vacated and remanded, 397 U.S. 335, 90 S.Ct. 1152, 25 L.Ed.2d 351 (1970). See also Beaty v. Kenan, supra.
. Thereafter, the Government, at some stage of the proceedings, moved the January 29, 1968 date back to March 30, 1968; and during the court proceedings, changed the March 30, 1968 date to April 15, 1968.
. This Court unfortunately is constrained to note that the word “unique” states a “consummation devoutly to be wished.” See also the statement in Beaty (at 59) that that case involved “the highly infrequent concurrent negligence of both the Government and a serviceman” (emphasis added). But see Patnode v. Alexander, supra-, McFarlane v. De Young, supra, and the within case.
. In this case, government counsel appeared to suggest in oral argument that Roberts’ lack of civil employment should be weighed against him. Seemingly, the absence or presence of employment can be argued either way. In Patnode, the Army conceded that the fact that Patnode engaged in civilian employment during the period of what was contended to be absence without authority was “inconsequential” (at 11). The same adjective would seem appropriate in this ease in which there was a lack of such employment.
. AR 635-200, Change 16, dated November 26, 1969, Section II, par. 2-3, provides, in relevant part, as follows:
2-3. Time lost to be made good. Every individual in active Federal service who renders himself unable for more than 1 day to perform duty will be liable, after a return to full duty status, to serve for such period as is necessary to complete his full term of service or obligation, exclusive of such time lost.
a. Lost time in the sense of this regulation refers to periods of more than 1 day during which an individual on active duty is unable to perform duty because of—
(1) Desertion.
(2) Absence without proper authority.
(3) Confinement under sentence.
(4) Confinement while awaiting trial or disposition of individual’s case, if trial results in conviction.
(5) Intemperate use of drugs or alcoholic liquor.
(6) Disease or injury, the result of individual’s own misconduct.
. See n. 1 swpra.
. AR 630-10 (entitled Personnel Absences —Absence without Leave and Desertion), Change 6, dated May 24, 1966, provides, in pertinent part, as follows:
70. Classifying absence, a. Whenever a member is absent under circumstances which make it appear that he was ab
(1) The results of a court-martial or military justice determination are not conclusive.
(2) The orders and instructions, both written and oral, which the member received before and during his absence which related to his absence.
(3) The frequency and type of contact the member had with the military while he was absent.
(4) The age, grade, experience and intelligence of the member.
. In Patnode, supra, Judge Harvey (at 14) wrote:
Although a different standard of proof, namely proof beyond a reasonable doubt, would be required in a court-martial proceeding, the failure of the Army to charge Petitioner under the Uniform Code of Military Justice is certainly pertinent to the inquiry here.
In this case, a court martial took place. The resulting acquittal, while pertinent, is not, for the reasons discussed in the body of this opinion, controlling in connection with the 10 U.S.C. § 972 proceeding herein involved.
10 U.S.C. § 972 extends the period of time during which a soldier’s right to return to civilian status is restricted. While that restriction may be bottomed on criminal conduct, it can also be bottomed on, as here, conduct of a soldier not amounting to a crime, but constituting such a failure to perform his duty during a part of his primary period of service so as to justify his not receiving credit for service during that part of such primary period. In this connection, it is noted that Roberts was not, in fact, on military service or under military control, during the period from March 27, 1969 to and including October 7, 1969, that is, the period the Army has classified as lost time, but was living at home with his wife.
. In Beaty, the Ninth Circuit referred to the number of days conceded by the Government therein as a reasonable time as “a mere two weeks” (at 59). In this case, the thirty-day period is only slightly more generous, but would seem sufficient in the factual context of this case, including, inter alia, the fact that Roberts was initially given a fifteen-day leave in early February, 1969 and the thirty-day credit period resulted in that fifteen-day leave becoming approximately a forty-five-day “leave.”
. See n. 5 supra.
. In Patnode, while the petitioner prevailed under the no-basis-in-faet test, the Court therein (at p. 9) specifically rejected petitioner’s alternate argument that “some other test should be applied under the statute” (the statute being 10 U.S.C. § 972).
. See the discussion in Note, “Developments in the Law — Federal Habeas Corpus,” 83 Harv.L.Rev. 1038, 1249-52 (1970).
. See n. 1 supra.
. Even if the Army’s determination herein under review should be subjected in this federal habeas corpus proceeding to the substantial evidence test, or to the test of whether the facts found by the Army are “supported by reasonable, substantial and probative evidence on the record as a whole” (see the Immigration and Naturalization Act, 8 U.S.O. § 1105a (a) (4) (1964) ; see also Townsend v. Sain, 372 U.S. 293, 313, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), and the discussion, generally, in Note “Developments in the Law— Federal Habeas Corpus,” supra at n. 17), that determination would still pass muster under either such review test and require denial of relief herein.