Switkes v. United States

480 F.2d 844, 202 Ct. Cl. 162, 1973 U.S. Ct. Cl. LEXIS 68

Opinions

Ktjnzig, Judge,

delivered the opinion of the court :

Footnotes

•

*

Plaintiff, in this military pay case, is suing to recover an amount representing the pay and allowances of an Army Captain from May 16, 1970 through April 9, 1971. After being admittedly absent without leave (AWOL), plaintiff obtained two separate federal court orders which had the effect of restraining the Army from sending him to Vietnam.

In issue is whether the federal court orders or any other event changed plaintiff’s AWOL status thus entitling him to pay and allowances for the period in question.

It is our opinion that plaintiff is not entitled to total recovery. He may recover for only those periods in which he was in compliance with his orders.¹

Plaintiff, who at the time was a Captain in the United States Army Reserve and a medical doctor, was called to active duty in September 1969. He began an extended tour of active duty on Sepember 17,1969.

In April 1970, while plaintiff was assigned to the Ireland Army Hospital at Fort Knox, Kentucky, he received orders which directed him to report to Travis Air Force Base in California by June 12,1970, for shipment to Vietnam. Plain tiff was authorized to take a period of leave in connection with, the change of duty station; he departed from Fort Knox on or about May 20,1970, thus beginning his period of authorized leave. This leave was extended twice, changing his reporting date at Travis Air Force Base to July 20,1970. Plaintiff went to California, but did not report to Travis; nor did he report to Vietnam.

The next orders that plaintiff received were those of April 7, 1971, directing him to report to Fort Hamilton, New York, for the purpose of being released from the Army. He complied, and on April 9,1971, was formally discharged from the Army.

Plaintiff contends that he was either on active duty or authorized leave during the entire period with the sole exception of a four day period which occurred between the time that he was supposed to report to Travis and the date of the restraining order issued by the United States District Court for the Eastern District of California. Accordingly he claims that he is entitled to pay and allowances from May 16,1970 to April 9,1971, excluding those four days.

In order to clearly understand plaintiff’s position, a chronology of events is necessary:

1962-1967 — Plaintiff received a military deferment in order to attend medical school.

November 1967 — Plaintiff applied for and was denied conscientious objector status.

September 19, 1968 — Plaintiff applied for, was tendered, and accepted an appointment as a commissioned officer, United States Army Keserve.

September 17, 1969 — Plaintiff voluntarily entered on active duty.

April 23,1970 — Plaintiff received orders to report to Trams Air Force Base in California for shipment to Vietnam.

May 20,1970 — Plaintiff went on authorized leave prior to reporting to Travis Air Force Base.

June 6, 1970 — Plaintiff applied to the United States District Court for the Southern District of New York (hereinafter referred to as New York court) for a writ of habeas corpus on the grounds that the denial of his conscientious objector application had been erroneous.

Jrnie 9, 1970 — New York court issued a restraining order which restrained the military authorities from removing plaintiff from the Southern District of New York pending consideration of his petition for a writ of habeas corpus.

July S, 1970 — New York court dismissed plaintiff’s petition, leaving the restraining order in effect until July 7,1970.

July SO, 1970 — Plaintiff failed to report to Travis Air Force Base for shipment to Vietnam as ordered. Plaintiff also did not report to Vietnam.

July m, 1970 — Plaintiff filed in the United States District Court for the District of Eastern California (hereinafter referred to as the California court) another petition for a writ of habeas corpus, again seeking to obtain his discharge. The court immediately issued a restraining order which restrained the military authorities from removing plaintiff from the Eastern District of California pending consideration of his petition. Travis Air Force Base is in said District.

November 9, 1970 — California court’s restraining order was superseded by a preliminary injunction to the same effect.

February 9,1971 — California court dissolved preliminary injunction effective February 11,1971.

February 9,1971 — Petitioner filed a third petition for writ of habeas corpus in the United States District Court for the District of Columbia (hereinafter referred to as the D.C. court), once more seeking to obtain his discharge from the Army. The court immediately issued a restraining order which restrained the military authorities from transferring plaintiff to overseas duty pending disposition of his petition.

March 3, 1971 — California court dismissed the petition pending before that court.

March S2,1971 — .D.C. court entered a judgment holding that plaintiff 'had been unlawfully inducted into the armed services, granting the writ of ’habeas corpus, and ordering plaintiff’s discharge from the Army.

April 7, 1971 — Plaintiff received orders to report to Ft. Hamilton in New York for the purpose of being discharged from the Army.

April 9, 1971 — Plaintiff was discharged from the Army.

During the entire period from July 20, 1970 until April 7, 1971, plaintiff did not physically report to any military installation.

Although, we do feel that plaintiff is entitled to recover for the periods when he was in compliance with his military orders, May 16, 1970 to July 20, 1970 and April 7, 1971 to April 9, 1971, the remaining time is irrevocably tainted by his going AWOL on July 20, 1970. In the entire chain of events subsequent' to July 20, 1970, the only event which altered his AWOL status was the order received on April 7, 1971, to report to Ft. Hamilton.

Fortunately there is a clear and unambiguous statute concerning members of the armed services who are absent without leave. Title 37, Section 503 (a) of the United States Code reads:

A member of the Army, Navy, Air Force, Marine Corps, Coast Guard, or Environmental Science Services Administration, who is absent without leave or over leave, forfeits all pay and allowances for the period of that absence, unless it is excused as unavoidable.

Since plaintiff has admitted that he was AWOL when he failed to report on July 20,1970, there only remains a determination as to the length of the period of absence and whether or not the absence was excused as unavoidable.

Plaintiff’s primary contention is that the period of his being absent without leave covered only four days. He argues that the issuance of the California restraining order on July 24,1970 changed his status from AWOL to active duty status awaiting orders to report to a particular assignment.

Plaintiff’s rationale for this contention is premised upon the assumption that since the Army was restrained from sending him to Vietnam and since he was on orders to report to Vietnam, that the court order superseded his military orders and he was no longer AWOL. This just is not the case.

The California restraining order did not expressly restrain the military authorities from sending plaintiff to Vietnam. Rather the order restrained and enjoined the military “from removing petitioner from the Eastern District of California”. Therefore, plaintiff could properly have remained on military duty anywhere within this District. Plaintiff has readily admitted throughout these proceedings that he was on orders to report to Travis Air Force Base which lies within the Eastern District of California. It was so stipulated by the parties at a pre-trial conference before the Commissioner of this court and it was affirmatively pleaded in the pleadings before the California court.² Therefore the California order had no force or effect upon that part of plaintiff’s military orders requiring him to report to Travis. The same can be said of the District of Columbia order which merely restrained the military from sending plaintiff out of the country.

It is clear then that neither of the court orders in effect subsequent to plaintiff’s July 20, 1970 reporting date interfered with plaintiff’s reporting to Travis Air Force Base on July 20, 1970, or excused him from reporting any time thereafter. Plaintiff could have reported to Travis and still have been in compliance with both his military orders and the judicial restraining orders.

This case is not dissimilar from the situation presented in Dodge v. United States, 33 Ct. Cl. 33 (1897). Despite subsequent events the court held that the plaintiff was AWOL for the entire period in dispute because he was already AWOL when the subsequent event (incarceration) extended his absence from the military. In the instant case plaintiff was clearly AWOL on July 20,1970 and the subsequent court orders did not obviate this situation. Plaintiff should have reported as ordered.

Thus, since we have concluded that the court orders did not alter plaintiff’s status, he has to be considered as having been AWOL for the entire period until he received his change of orders on April 7,1971.

Of prime importance to the plaintiff’s case before this court is the fact that plaintiff wrote to the Commanding Officer at Travis Air Force Base asking him where he should report due to the pendency of the court orders. Since plaintiff was a doctor, the Commanding Officer referred the letter to the Surgeon General. Six months later, plaintiff wrote a second letter directly to the Surgeon General. The response was, at best, evasive. It reads in pertinent part:

Your current orders assigning you to Vietnam remain in effect. This office [Office of the Surgeon General] understands that you have obtained a restraining order barring your movement overseas. It is expected that you will comply 'with your original orders when the restraining order is dissolved. In the event the court reaches a decision which requires an amendment of your current orders, you will be so advised.

Plaintiff contends that this letter reinforces his position that he was not AWOL, but on some special active duty status awaiting orders.

Although this letter from the Surgeon General caused the court some difficulty, it must be viewed as nothing more than an opinion of an individual who was not authorized effectively to change plaintiff’s admitted AWOL status. The pertinent regulations are quite clear that only certain individuals are authorized either to change an unauthorized absence to an authorized one, or to excuse an absence as unavoidable. AR 630-10, as amended October 3,1969, provides in relevant part:

If an absence is to be reclassified from AWOL to authorized absence, or an unauthorized absence qualifies as an unavoidable absence which may be excused, the following commanders may accomplish such actions: *****

(3) An absence exceeding 30 days may be reclassified or excused, and erroneous entry thereof may be removed, by the officer exercising general cowt-martial jurisdiction over the indwidual. (emphasis added)

It appears to be clear from the record of this case that the Surgeon General is not the officer exercising general court-martial jurisdiction over the plaintiff. Thus, if the Surgeon General is not authorized to reclassify plaintiff’s AWOL status, then his letter can have no binding effect upon plaintiff’s military status.

All things considered, it is beyond the realm of imagination that any military force in the world could function effectively if individual officers or enlisted men could choose, unilaterally, to which posts they will report and to which not. Or which orders they will obey and which not.³

Having concluded that plaintiff was absent without leave for the period between July 20, 1970 and April 7, 1971 and having concluded that no authorized individual excused the absence as unavoidable, plaintiff’s claim for pay and allowances for this period must be denied pursuant to 37 TJ.S.C. § 503(a) (1970). Plaintiff, however, is entitled to recover for the periods May 16, 1970 to July 20, 1970, and April 7, 1971 to April 9,1971. Only during these periods was plaintiff in compliance with his orders.

CONCLUSION OF LAW

Upon the foregoing opinion which includes therein the court’s findings of fact, which opinion and findings are made a part of the judgment herein, the court concludes as a matter of law that plaintiff is entitled to recover for the periods May 16, 1970 to July 20, 1970, and April 7, 1971 to April 9, 1971, and judgment is entered to that effect. The amount of the recovery will be determined in subsequent proceedings under Rule 131 (c) .⁴

The court further concludes as a matter of law that the plaintiff is not entitled to recover for the period July 21,1970 to April 7, 1971, and the petition is hereby dismissed as to the claim for such period.

We acknowledge the able assistance rendered ns by Commissioner Mastín G. White’s findings and recommended opinion in this case. Such findings of fact as are necessary to the opinion are Included therein.

1

Actual computation of the amount of recovery will be determined by the Trial Commissioner pursuant to Rule 131(c). Consideration will have to be given to the amount of leave time that plaintiff had accumulated In order that final judgment Is not contrary to 37 U.S.C. § 502 (1970), which limits the amount of leave pay.

2

Paragraph 2 of plaintiff’s petition for a writ of Habeas Corpus and Complaint for Declaratory and Injunctive Belief filed on July 24, 1970 in the united States District Court for the Eastern District of California l-eads in pertinent part:

“Petitioner is presently under orders to report to Travis Air Force Base, for shipment to Indochina. Petitioner’s original orders which required that he report to Travis by June 12, 1970, were stayed by the united States District Court, Southern District of New York, but said stay and temporary restraining order is no longer of force and effect.”

3

It’s hard to visualize, in the military, a soldier AWOL from his assigned post of duty, refusing to comply with official orders, but writing a letter to his commanding officer ashing for a more preferred assignment; and then deigning, perhaps, to obey if he is pleased with the answer.

4

The amount of recovery should be reduced by $350.00 which the plaintiff received in May 1970 as an advance.