B-206906.OM, MAY 27, 1982

B-206906.OM: May 27, 1982

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MILITARY PERSONNEL HAVE NO RIGHT TO A DISCHARGE FROM SERVICE ON THE SOLE GROUND THAT PAY DUE TO THEM HAS BEEN IMPROPERLY WITHHELD. APPLICANTS FOR ENLISTMENT IN THE ARMED FORCES AND THEIR RECRUITERS HAVE CONSIDERABLE LATITUDE. IN NEGOTIATING THE MATTER OF WHAT TRAINING AND DUTY ASSIGNMENTS APPLICANTS WILL RECEIVE IF THEY ENLIST. THEY HAVE NO RIGHT TO MONEY DAMAGES ON CLAIMS ASSERTING BREACH OF CONTRACT OR TORTIOUS MISCONDUCT BY SERVICE OFFICIALS. THE ENLISTEE IS ORDINARILY NOT ENTITLED TO DISCHARGE UNTIL THE EXPIRATION OF HIS TERM OF OBLIGATED SERVICE. ANY EARLIER ATTEMPT HE MAKES TO TERMINATE HIS STATUS BY DESERTING IS INEFFECTIVE AND CONSTITUTES A CRIME UNDER THE UNIFORM CODE OF MILITARY JUSTICE.

B-206906.OM, MAY 27, 1982

SUBJECT: LEGALITY OF MILITARY SERVICE ENLISTMENT CONTRACT B-206906-O.M. DIGEST: 1. MILITARY PERSONNEL HAVE NO RIGHT TO A DISCHARGE FROM SERVICE ON THE SOLE GROUND THAT PAY DUE TO THEM HAS BEEN IMPROPERLY WITHHELD. SEE COURT CASES CITED. 2. APPLICANTS FOR ENLISTMENT IN THE ARMED FORCES AND THEIR RECRUITERS HAVE CONSIDERABLE LATITUDE, SUBJECT TO LIMITS PRESCRIBED BY SERVICE REGULATIONS, IN NEGOTIATING THE MATTER OF WHAT TRAINING AND DUTY ASSIGNMENTS APPLICANTS WILL RECEIVE IF THEY ENLIST. IF ENLISTEES CANNOT LATER BE PROVIDED WITH TRAINING AND DUTY ASSIGNMENTS GUARANTEED BY THEIR ENLISTMENT AGREEMENTS, THEY MAY BE ENTITLED TO DISCHARGE. HOWEVER, THEY HAVE NO RIGHT TO MONEY DAMAGES ON CLAIMS ASSERTING BREACH OF CONTRACT OR TORTIOUS MISCONDUCT BY SERVICE OFFICIALS. SEE COURT CASES CITED. 3. THE STATUS OF AN ENLISTEE AS A MEMBER OF THE ARMED FORCES TERMINATES UPON DISCHARGE. THE ENLISTEE IS ORDINARILY NOT ENTITLED TO DISCHARGE UNTIL THE EXPIRATION OF HIS TERM OF OBLIGATED SERVICE, AND ANY EARLIER ATTEMPT HE MAKES TO TERMINATE HIS STATUS BY DESERTING IS INEFFECTIVE AND CONSTITUTES A CRIME UNDER THE UNIFORM CODE OF MILITARY JUSTICE. CONTRAST, A PRIVATE EMPLOYMENT CONTRACT GENERALLY TERMINATES WHEN THE EMPLOYEE RESIGNS OR IS DISCHARGED, AND ORDINARILY EMPLOYEES MAY RESIGN ANY TIME WITHOUT PENALTY. 4. MILITARY RESERVISTS ARE NOT SUBJECT TO COURT-MARTIAL JURISDICTION UNTIL CALLED TO ACTIVE DUTY, EXCEPT WHEN THEY MAY BE ATTENDING INACTIVE DUTY TRAINING DRILLS. RESERVISTS LAWFULLY CALLED TO ACTIVE DUTY IMMEDIATELY BECOME SUBJECT TO COURT-MARTIAL JURISDICTION, AND THEY MAY BE PROSECUTED FOR DESERTION IF THEY FAIL TO RESPOND. SEE COURT CASES CITED. 5. THE RESERVES OF THE ARMED FORCES ARE ESTABLISHED BY LAW AS THE READY RESERVE, THE STANDBY RESERVE, AND THE RETIRED RESERVE. THE READY RESERVE IS MADE UP OF 2 SUBCOMPONENTS: THE SELECTED RESERVE AND THE INDIVIDUAL READY RESERVE. THE DIFFERENCES AMONG THEM ARE DESCRIBED, AS WELL AS THE LIABILITY OF THE MEMBERS OF EACH TO BE INVOLUNTARILY CALLED TO ACTIVE DUTY. 6. BY LAW, MEMBERS OF THE SELECTED RESERVE ARE EXPECTED TO ATTEND PERIODIC INACTIVE DUTY TRAINING DRILLS AND SERVE 2 WEEKS' ACTIVE DUTY EACH YEAR. IF THEY DO NOT PARTICIPATE SATISFACTORILY, THEY MAY BE INVOLUNTARILY CALLED TO ACTIVE DUTY. IN THE CURRENT PEACETIME ALL VOLUNTEER FORCE, HOWEVER, UNSATISFACTORY PARTICIPANTS ARE INSTEAD NORMALLY EITHER DISCHARGED OR TRANSFERRED TO THE INDIVIDUAL READY RESERVE. 7. ALL MILITARY RESERVISTS ARE SUBJECT TO INVOLUNTARY CALL TO ACTIVE DUTY IN TIME OF WAR OR NATIONAL EMERGENCY DECLARED BY THE CONGRESS. THE MAXIMUM PUNISHMENT FOR FAILING TO RESPOND TO THE CALL, BY DESERTION IN WARTIME, IS DEATH. 10 U.S.C. 885. 8. IN 1951 THE MINIMUM SERVICE OBLIGATION OF MEMBERS OF THE ARMED FORCES WAS ESTABLISHED AT 8 YEARS BY STATUTE. IN 1955 THE SERVICE OBLIGATION WAS REDUCED TO 6 YEARS, SINCE AT THAT TIME THE READY RESERVE WAS OVERSTRENGTH IN NUMBERS, BUT IN THE EXPRESSED VIEW OF THE CONGRESS IT WAS INEFFECTIVE BECAUSE TOO FEW MEMBERS WERE ACTIVELY PARTICIPATING IN TRAINING. CURRENT DEFENSE DEPARTMENT PROPOSAL TO REEXTEND THE SERVICE OBLIGATION TO 8 YEARS IS DESIGNED TO INCREASE SIZE OF INDIVIDUAL READY RESERVE. LEGISLATIVE HISTORY DISCUSSED.

ASSOCIATE DIRECTOR, FPCD/M - KENNETH J. COFFEY:

THIS IS IN RESPONSE TO YOUR MEMORANDUM DATED MARCH 26, 1982, SAME SUBJECT, IN WHICH YOU POSED THE FOLLOWING QUESTIONS:

"1. WHAT IS THE LEGALITY OF THE ENLISTMENT CONTRACT, I.E., WHAT ARE THE RIGHTS OF THE SERVICES AS WELL AS THE RIGHTS OF THE INDIVIDUAL ENLISTEE?

"2. IS THE CONTRACT ENFORCEABLE, I.E., CAN THE SERVICES SPECIFICALLY REQUIRE THE ENLISTEE TO FULFILL HIS/HER OBLIGATION? IF SO, HOW CAN THIS BE DONE? ARE THERE ANY PRACTICAL LIMITATIONS TO THE REMEDIES THAT MAY BE AVAILABLE?

"3. AS A PRACTICAL MATTER, DOES THE ABILITY TO ENFORCE THE CONTRACT DIMINISH AS THE LENGTH OF TIME REMAINING ON THE CONTRACT DECREASES?

"4. IS THERE ANY PRACTICAL LIMIT ON THE TIME IN YEARS THAT AN INDIVIDUAL CAN OBLIGATE HIS/HER SERVICES FOR?

"5. CAN THE ENLISTMENT CONTRACT BE TERMINATED UNILATERALLY BY THE ENLISTEE? IF SO, WHAT PENALTIES MAY BE IMPOSED ON THE ENLISTEE?

"6. WHAT IS THE BASIS FOR THE CURRENT 6-YEAR MILITARY SERVICE OBLIGATION?"

WE UNDERSTAND THAT YOU ARE PARTICULARLY INTERESTED IN RESERVE ENLISTMENTS IN THE ALL-VOLUNTEER FORCE, AND IN RESERVE OBLIGATIONS GENERALLY, AND ALSO IN A PROPOSAL BY THE DEFENSE DEPARTMENT TO EXTEND THE MILITARY SERVICE OBLIGATIN FROM 6 TO 8 YEARS.

QUESTION 1. "WHAT IS THE LEGALITY OF THE ENLISTMENT CONTRACT, I.E., WHAT ARE THE RIGHTS OF THE SERVICES AS WELL AS THE RIGHTS OF THE INDIVIDUAL?"

A CONTRACT IS AN AGREEMENT THAT IS LEGALLY ENFORCEABLE. AN INVOLUNTARY INDUCTION UNDER THE MILITARY SELECTIVE SERVICE ACT (THE DRAFT) WAS NEVER COMMONLY REGARDED OR REFERRED TO AS A "CONTRACT," SINCE THE INDUCTEE NEVER ENTERED INTO AN AGREEMENT ON THE MATTER OF HIS MILITARY SERVICE, BUT WAS INSTEAD GIVEN AN INDUCTION ORDER. ON THE OTHER HAND, THE ORDINARY PRIVATE EMPLOYMENT CONTRACT IS A FREELY NEGOTIATED AGREEMENT BETWEEN AN EMPLOYER AND AN EMPLOYEE ESTABLISHING THE CONDITIONS OF THEIR RELATIONSHIP, INCLUDING MATTERS RELATED TO PAY, FRINGE BENEFITS, TERM OF SERVICE, HOURS OF WORK, PLACE OF EMPLOYMENT, AND TYPE OF WORK TO BE PERFORMED.

IN AN ENLISTMENT, THE ENLISTEE SIGNS A WRITTEN AGREEMENT AND VOLUNTARILY ENTERS MILITARY SERVICE, BUT HE HAS ONLY A LIMITED ABILITY TO NEGOTIATE THE TERMS AND CONDITIONS OF THE ENLISTMENT AGREEMENT. MOREOVER, UPON ENTERING MILITARY SERVICE THE ENLISTEE, LIKE THE INDUCTEE, IS NO LONGER A CIVILIAN, AND HIS STATUS IN SOCIETY IS WHOLLY ALTERED. HENCE, WHILE AN ENLISTMENT IS SOMETIMES REFERRED TO AS A "CONTRACT," THE ENLISTEE'S LEGAL RELATIONSHIP WITH THE GOVERNMENT IS SIGNIFICANTLY DIFFERENT FROM THE CONTRACTUAL RELATIONSHIP THAT EXISTS BETWEEN THE EMPLOYER AND EMPLOYEE IN PRIVATE BUSINESS. SEE IN RE GRIMLEY, 137 U.S. 147 (1890), SET OUT IN ATTACHMENT 1; MCCORD V. PAGE, 124 F.2D 68 (5TH CIR. 1941), ATTACHMENT 2; AND CHAVEZ V. FERGUSSON, 395 F.2D 215 (9TH CIR. 1968) AND 266 F.SUPP. 879 (N.D.CAL. 1967), ATTACHMENT 3. ENLISTMENTS ARE NOWHERE REFERRED TO AS "CONTRACTS" IN STATUTORY LAW.

THE UNIQUE NATURE OF THE MUTUAL LEGAL RIGHTS AND OBLIGATIONS THAT ARISE IN A VOLUNTARY MILITARY ENLISTMENT CAN, THEREFORE, PERHAPS BEST BE APPRECIATED BY EXAMINING THE DIFFERENCES AND SIMILARITIES BETWEEN IT AND BOTH THE INVOLUNTARY INDUCTION AND THE PRIVATE EMPLOYMENT CONTRACT.

1. CREATION OF RELATIONSHIP

A PERSON LAWFULLY ORDERED TO REPORT FOR INVOLUNTARY INDUCTION INTO THE ARMED FORCES IS OBLIGATED TO REPORT, AND TO TAKE THE PRESCRIBED OATH AT THE INDUCTION CEREMONY TO INDICATE HIS WILLINGNESS TO ENTER MILITARY SERVICE. IF HE DECLINES TO TAKE THE OATH OR OTHERWISE REFUSES TO SUBMIT TO INDUCTION, HE MAY BE PROSECUTED ON FELONY CHARGES IN A FEDERAL DISTRICT COURT AS A DRAFT LAW VIOLATOR, BUT HE CANNOT BE SUBJECTED TO TRIAL BY COURT-MARTIAL SINCE HIS STATUS REMAINS THAT OF A CIVILIAN. SEE UNITED STATES V. HALL, 37 C.M.R. 352 (1967), ATTACHMENT 4. IF HE SUBMITS TO INDUCTION, HIS STATUS IS IMMEDIATELY CHANGED TO THAT OF A MEMBER OF THE ARMED FORCES, AND HE BECOMES SUBJECT TO COURT MARTIAL JURISDICTION. HAS NO CHOICE ABOUT HIS ASSIGNMENT TO A PARTICULAR BRANCH OF SERVICE. COURSE, INDUCTIONS UNDER THE MILITARY SELECTIVE SERVICE ACT CEASED IN 1973, BUT THAT LAW AND THE PROCEDURES UNDER IT DESCRIBED ABOVE WOULD APPLY TO ANY FORSEEABLE FUTURE MILITARY DRAFT IN THE ABSENCE OF A GENERAL DECLARATION OF MARTIAL LAW.

AN APPLICANT FOR ENLISTMENT MAY NEGOTIATE WITH THE AGENTS, I.E., THE RECRUITERS, OF ALL THE MILITARY AND NAVAL DEPARTMENTS, AND THE APPLICANT IS FREE TO SELECT THE BRANCH OF SERVICE HE PREFERS. HE EXECUTES A WRITTEN ENLISTMENT AGREEMENT, THE FORM AND CONTENT OF WHICH ARE PRESCRIBED BY SERVICE REGULATION, AND HE THEN INDICATES HIS WILLINGNESS TO JOIN THE SERVICE BY TAKING A PRESCRIBED OATH. IF AT THE LAST MOMENT HE CHANGES HIS MIND AND REFUSES TO TAKE THE OATH, OR IS INVOLUNTARILY COERCED INTO TAKING IT, NO ENFORCEABLE ENLISTMENT OCCURS SINCE HIS STATUS REMAINS THAT OF A CIVILIAN. SEE NORRIS V. NORMAN, 296 F.SUPP. 1270 (N.D.ILL. 1969), ATTACHMENT 5. HOWEVER, OTHER MINOR IRREGULARITIES IN THE ENLISTMENT PROCEEDINGS DO NOT MAKE THE ENLISTMENT INVALID, AND AN ENLISTEE CANNOT USE THOSE MINOR IRREGULARITIES AS A DEFENSE IF HE LATER HAPPENS TO BE COURT- MARTIALED. SEE IN RE GRIMLEY, CITED ABOVE, ATTACHMENT 1.

PRIVATE EMPLOYMENT CONTRACTS CAN BE NEGOTIATED BY THE INDIVIDUALS DIRECTLY CONCERNED, OR THEIR PERSONAL AGENTS, OR THROUGH COLLECTIVE BARGAINING. EMPLOYMENT CONTRACTS CAN BE SIMPLE VERBAL AGREEMENTS, OR THEY CAN BE WRITTEN AND SIGNED AGREEMENTS THAT ARE SOMETIMES BOTH LENGTHY AND COMPLEX. PRIVATE EMPLOYMENT CONTRACTS CAN BE AFFECTED BY THE MANY FEDERAL, STATE, AND LOCAL STATUTES AND ORDINANCES THAT PERTAIN TO EMPLOYEES' PAY, WORK HOURS, SAFETY, ETC., AND AN APPLICANT FOR EMPLOYMENT MAY HAVE ONLY A LIMITED ABILITY TO NEGOTIATE THE TERMS OF HIS CONTRACT, ESPECIALLY IF HE IS APPLYING FOR EMPLOYMENT WITH A LARGE CORPORATION. ESSENTIALLY, HOWEVER, POTENTIAL EMPLOYERS AND EMPLOYEES ARE FREE TO NEGOTIATE CONTRACTS FOR LAWFUL PRIVATE EMPLOYMENT UNDER ANY TERMS AND CONDITIONS THEY FIND MUTUALLY AGREEABLE. NO FORMAL OATH OR CEREMONY IS NECESSARY IN THE FORMATION OF A PRIVATE EMPLOYMENT CONTRACT.

2. TERM OF SERVICE

AS IS DISCUSSED IN GREATER DETAIL BELOW, ALL ENLISTEES AND INDUCTEES INITIALLY ENTERING THE ARMED FORCES INCUR A STATUTORY 6-YEAR SERVICE OBLIGATION. PRIOR TO THE TERMINATION OF THE DRAFT IN 1973 PERSONS INVOLUNTARILY INDUCTED WERE REQUIRED TO SERVE THE FIRST 24 MONTHS ON ACTIVE DUTY AND THE REMAINDER OF THE 6-YEAR OBLIGATION IN A RESERVE STATUS.

FEDERAL STATUTES AUTHORIZE THE ARMED FORCES TO ACCEPT ORIGINAL REGULAR ACTIVE DUTY ENLISTMENTS FOR A TERM OF THE DURATION OF THEIR MINORITY OR OF EITHER 2, 3, 4, 5, OR 6 YEARS, ALTHOUGH THE ARMY IS THE ONLY SERVICE THAT CURRENTLY HAS REGULATIONS AUTHORIZING ACCEPTANCE OF THE MINIMUM 2-YEAR ENLISTMENT. THUS, APPLICANTS FOR ENLISTMENT AND RECRUITERS HAVE ONLY A LIMITED ABILITY TO NEGOTIATE THE TERM OF ACTIVE SERVICE. RECRUITERS ARE GENERALLY AUTHORIZED BY REGULATION TO MAKE OFFERS OF SPECIAL TRAINING AND DUTY ASSIGNMENTS AS AN INDUCEMENT FOR LONGER ACTIVE DUTY COMMITMENTS. REGULAR ENLISTEES ARE GENERALLY TRANSFERRED TO A RESERVE COMPONENT AT THE EXPIRATION OF THEIR TERM OF ACTIVE DUTY TO COMPLETE THE 6-YEAR SERVICE OBLIGATION, IF THEY HAVE NOT ALREADY COMPLETED IT.

IN ADDITION, THE STATUTES AUTHORIZE AN ORIGINAL 6-YEAR RESERVE ENLISTMENT WITH AN INITIAL PERIOD OF ACTIVE DUTY FOR TRAINING OF AT LEAST 12 WEEKS. THIS TYPE OF ENLISTMENT WAS POPULAR UNTIL THE DRAFT ENDED IN 1973.

THE ACTIVE SERVICE OBLIGATION OF ANYONE ON ACTIVE DUTY OR CALLED TO ACTIVE DUTY IN WARTIME IS AUTOMATICALLY EXTENDED BY STATUTE, 10 U.S.C. 671A AND 672, FOR THE DURATION OF THE WAR AND 6 MONTHS THEREAFTER.

THE TERM OF SERVICE UNDER A PRIVATE EMPLOYMENT CONTRACT, ON THE OTHER HAND, IS ESTABLISHED NOT BY ANY STATUTE BUT RATHER BY MUTUAL AGREEMENT. EMPLOYMENT CONTRACTS ARE GENERALLY INDEFINITE IN DURATION, OR FOR THE DURATION OF TIME REQUIRED TO COMPLETE A PARTICULAR WORK PROJECT. HOWEVER, EMPLOYEES SOMETIMES AGREE TO REMAIN IN THE EMPLOYER'S SERVICE FOR A FIXED TERM, OR TO REFRAIN FROM COMPETING WITH THE EMPLOYER FOR A FIXED TERM IN THE EVENT OF RESIGNATION.

3. PAY

THE PAY AND ALLOWANCE ENTITLEMENTS OF MEMBERS OF THE ARMED FORCES, INCLUDING BOTH ENLISTEES AND INDUCTEES, ARE COMPLETELY DEPENDENT UPON RIGHTS PRESCRIBED BY STATUTE AND REGULATION. HENCE, AN APPLICANT FOR ENLISTMENT MAY NOT NEGOTIATE HIS PAY ENTITLEMENTS WITH HIS RECRUITER. SEE MATTER OF BLAYLOCK, 60 COMP.GEN. 257 (1981), ATTACHMENT 6. FURTHERMORE, AN ENLISTEE OR INDUCTEE HAS NO RIGHT TO A DISCHARGE ON THE SOLE GROUND THAT PAY DUE TO HIM HAS BEEN IMPROPERLY WITHHELD. SEE BORSCHOWA V. CLAYTOR, 568 F.2D 616 (9TH CIR. 1977), ATTACHMENT 7. HOWEVER, IN TWO RECENT FEDERAL COURT ACTIONS COMMISSIONED MEDICAL OFFICERS OF THE AIR FORCE WERE HELD TO BE ELIGIBLE TO RESCIND THEIR "ENLISTMENT CONTRACTS" DUE TO MATERIAL MISREPRESENTATIONS MADE TO THEM BY RECRUITERS CONCERNING THEIR FUTURE PAY ENTITLEMENTS. SEE PENCE V. BROWN, 627 F.2D 872 (8TH CIR. 1980), ATTACHMENT 8; AND FRENTHEWAY V. BODENHAMER, 444 F.SUPP. 275 (D.WYO. 1977), ATTACHMENT 9.

IN CONTRAST AN APPLICANT FOR EMPLOYMENT MAY, SUBJECT TO MINIMUM WAGE LAWS, FREELY NEGOTIATE HIS RATE OF PAY WITH AN EMPLOYER OR THE EMPLOYER'S AGENT, AND IF AN EMPLOYMENT CONTRACT IS CONCLUDED THE EMPLOYER WILL BE LEGALLY BOUND TO MAKE PAYMENT AT THE AGREED RATE. THE EMPLOYEE CAN TERMINATE THE CONTRACT FOR NONPAYMENT WITHOUT APPLYING TO THE EMPLOYER OR A COURT FOR A DISCHARGE FROM EMPLOYMENT. ALSO, AN EMPLOYEE IS ORDINARILY FREE TO QUIT HIS EMPLOYMENT AT ANY TIME WITHOUT PENALTY IF HE BECOMES DISSATISFIED WITH THE AGREED RATE OF PAY. OF COURSE, IN A LARGE CORPORATE SETTING AN INDIVIDUAL EMPLOYEE'S POWER TO NEGOTIATE HIS RATE OF PAY MAY BE EXTREMELY LIMITED, AND AS A PRACTICAL MATTER AN EMPLOYEE IS GENERALLY NOT LIKELY TO RESIGN SOLELY BECAUSE HE IS DISSATISFIED WITH HIS PAY UNLESS HE FIRST RECEIVES A BETTER OFFER FROM ANOTHER EMPLOYER, OR DECIDES TO BECOME AN INDEPENDENT BUSINESSMAN AND EMPLOYER HIMSELF.

4.SPECIAL TRAINING AND DUTY ASSIGNMENTS

A PERSON INVOLUNTARILY INDUCTED INTO THE ARMED FORCES CANNOT CHOOSE THE TYPE OF HIS INITIAL TRAINING, NOR THE PLACE AND NATURE OF HIS LATER DUTY ASSIGNMENTS.

AN APPLICANT FOR ENLISTMENT AND HIS RECRUITER HAVE CONSIDERABLE LATITUDE, SUBJECT TO LIMITS PRESCRIBED BY SERVICE REGULATIONS, IN NEGOTIATING THE MATTER OF WHAT TRAINING AND DUTY ASSIGNMENTS THE APPLICANT WILL RECEIVE IF HE ENLISTS. MOREOVER, SINCE THE MODERN ARMED FORCES OFFER SPECIALIZED TRAINING IN MANY FIELDS, AND PERSONS FREQUENTLY ENLIST FOR THE SPECIFIC PURPOSE OF OBTAINING SPECIAL TRAINING AND EXPERIENCE, THIS IS AN AREA IN WHICH MANY DISPUTES HAVE ARISEN BETWEEN ENLISTEES AND THE SERVICES IN RECENT YEARS. IF THE ENLISTEE CANNOT BE PROVIDED THE TRAINING AND DUTY ASSIGNMENTS GUARANTEED IN THE TERMS OF HIS ENLISTMENT AGREEMENT, SERVICE REGULATIONS GENERALLY ALLOW HIM TO APPLY FOR A DISCHARGE FOR THAT SOLE REASON. AND IF THE APPLICATION FOR DISCHARGE IS DENIED, THE ENLISTEE MAY APPLY TO A FEDERAL DISTRICT COURT FOR RELEASE FROM SERVICE. AT THE PRESENT TIME, THE COURTS DO NOT APPEAR TO HAVE ARRIVED AT A SETTLED, CONSISTENT APPROACH ON THE ISSUES OF WHETHER THE SERVICES ARE BOUND BY UNAUTHORIZED VERBAL PROMISES MADE BY RECRUITERS THAT ARE NOT CONTAINED IN THE WRITTEN ENLISTMENT AGREEMENT, OR WHAT BREACHES OF PROMISE ARE SERIOUS ENOUGH TO WARRANT JUDICIAL RELIEF. SEE, E.G., PEAVY V. WARNER, 493 F.2D 748 (5TH CIR. 1974), ATTACHMENT 10; DUBEAU V. COMMANDING OFFICER, 440 F.SUPP. 747 (D.MASS. 1977), ATTACHMENT 11; BEMIS V. WHALEN, 341 F.SUPP. 1289 (S.D.CAL. 1972), ATTACHMENT 12; WITHUM V. O'CONNOR, 506 F.SUPP. 1374 (D.P.R. 1981), ATTACHMENT 13; AND NOVAK V. RUMSFELD, 423 F.SUPP. 971 (N.D.CAL. 1976), ATTACHMENT 14. IN ANY EVENT, THE JUDICIAL RELIEF AVAILABLE TO AN ENLISTEE IN THAT SITUATION IS LIMITED TO A DISCHARGE FROM SERVICE, AND HE HAS NO RIGHT TO MONEY DAMAGES ON A CLAIM ASSERTING BREACH OF CONTRACT OR TORTIOUS MISCONDUCT BY SERVICE OFFICIALS. SEE BRUCE V. UNITED STATES ARMY, 508 F.SUPP. 962 (E.D.MICH. 1981), ATTACHMENT 15.

PRIVATE EMPLOYMENT CONTRACTS ONLY OCCASIONALLY CONTAIN SPECIFIC PROVISIONS GUARANTEEING THE EMPLOYEE SPECIAL TRAINING AND WORK ASSIGNMENTS. HOWEVER, IF THE EMPLOYER FAILED TO FULFILL HIS COMMITMENTS UNDER A CONTRACT WITH THOSE PROVISIONS, THE ORDINARY CIVIL REMEDIES FOR BREACH OF CONTRACT WOULD BE AVAILABLE TO THE EMPLOYEE. THE EMPLOYEE COULD ALSO TERMINATE THE CONTRACT BY RESIGNING, AND HE WOULD NOT NEED TO OBTAIN THE EMPLOYER'S PERMISSION OR A COURT ORDER TO DO SO.

5. SATISFACTORY PERFORMANCE OF WORK OR DUTY ASSIGNMENT

BOTH THE ENLISTEE AND THE INDUCTEE ARE SUBJECT TO ADMINISTRATIVE DISCHARGE UNDER SERVICE REGULATIONS IF THEIR DUTY PERFORMANCE IS UNSATISFACTORY. MOREOVER, THEY ARE SUBJECT TO COURT-MARTIAL JURISDICTION UNDER THE UNIFORM CODE OF MILITARY JUSTICE, 10 U.S.C. 801 940, AND THEY CAN BE PUNISHED IN JUDICIAL AND ADMINISTRATIVE PROCEEDINGS AUTHORIZED BY THE CODE FOR DISOBEDIENCE OF ORDERS, INSUBORDINATION, DISRESPECT, MALINGERING, ABSENCE WITHOUT LEAVE, DESERTION, AND OTHER CRIMES UNIQUE TO THE ARMED FORCES. IN CONTRAST, WHILE A PRIVATE EMPLOYEE IS LEGALLY OBLIGATED TO PERFORM THE WORK AND MEET THE OTHER CONDITIONS SPECIFIED IN HIS EMPLOYMENT CONTRACT, THAT OBLIGATION IS CIVIL ONLY SINCE HE CANNOT BE SUBJECTED TO CRIMINAL PROSECUTION FOR BREACH OF CONTRACT. AND EVEN THOUGH EMPLOYERS OCCASIONALLY SUE FORMER EMPLOYEES IN AN ATTEMPT TO OBTAIN MONEY DAMAGES OR OTHER REMEDIES AVAILABLE FOR BREACH OF CONTRACT IN CIVIL PROCEEDINGS, ORDINARILY THE UNSATISFACTORY EMPLOYEE IS SIMPLY DISCHARGED OR ALLOWED TO RESIGN WITHOUT ANY PENALTY OTHER THAN PERHAPS A POOR RECOMMENDATION. 6. TERMINATION OF RELATIONSHIP

THE STATUS OF AN ENLISTEE OR INDUCTEE AS A MEMBER OF THE ARMED FORCES TERMINATES UPON HIS DISCHARGE. HE IS ORDINARILY NOT ENTITLED TO A DISCHARGE UNTIL THE EXPIRATION OF HIS TERM OF OBLIGATED SERVICE, AND ANY EARLIER ATTEMPT HE MAKES TO TERMINATE THE RELATIONSHIP BY DESERTING OR ABSENTING HIMSELF WITHOUT LEAVE IS INEFFECTIVE AND CONSTITUTES A CRIME PUNISHABLE BY COURT-MARTIAL. SEE IN RE GRIMLEY, CITED ABOVE, ATTACHMENT 1.

IN CONTRAST, AN EMPLOYMENT CONTRACT GENERALLY TERMINATES WHEN THE EMPLOYEE RESIGNS OR IS DISCHARGED. AND, AS MENTIONED, ORDINARILY EMPLOYEES ARE FREE TO RESIGN AT ANY TIME WITHOUT PENALTY. QUESTION 2. "IS THE CONTRACT ENFORCEABLE, I.E., CAN THE SERVICES SPECIFICALLY REQUIRE THE ENLISTEE TO FULFILL HIS/HER OBLIGATION? IF SO, HOW CAN THIS BE DONE? ARE THERE ANY PRACTICAL LIMITATIONS TO THE REMEDIES THAT MAY BE AVAILABLE?"

ENLISTEES ARE SUBJECT TO THE UNIFORM CODE OF MILITARY JUSTICE, AND, AS PREVIOUSLY MENTIONED, THEY MAY BE PUNISHED UNDER ITS PROVISIONS IF THEY FAIL TO FULFILL THEIR SERVICE OBLIGATIONS.

RESERVISTS PRESENT AN IMPORTANT AND DISTINCT ENFORCEMENT PROBLEM, SINCE THEY ARE NOT SUBJECT TO COURT-MARTIAL JURISDICTION UNTIL CALLED TO ACTIVE DUTY, EXCEPT WHEN THEY MAY BE ATTENDING INACTIVE DUTY TRAINING DRILLS. U.S.C. 802. SEE WALLACE V. CHAFEE, 451 F.2D 1374 (9TH CIR. 1971), CERT. DENIED 409 U.S. 933 (1972), ATTACHMENT 16. RESERVISTS LAWFULLY CALLED TO ACTIVE DUTY IMMEDIATELY BECOME SUBJECT TO COURT-MARTIAL JURISDICTION, AND THEY MAY BE PROSECUTED FOR DESERTION IF THEY FAIL TO RESPOND TO THE CALL. SEE UNITED STATES V. KAASE, 34 C.M.R. 883 (1964), ATTACHMENT 17. COMPARE UNITED STATES V. SILVERYA, 21 C.M.R. 363 (1956), ATTACHMENT 18, CONCERNING THE NECESSITY OF A CALL FOR MILITARY JURISDICTION TO ATTACH.

UNDER THE APPLICABLE STATUTES AND REGULATIONS THERE IS A READY RESERVE, A STANDBY RESERVE, AND A RETIRED RESERVE. THE READY RESERVE IS MADE UP OF TWO SUBCOMPONENTS: THE SELECTED RESERVE AND THE INDIVIDUAL READY RESERVE. MEMBERS OF THE SELECTED RESERVE GENERALLY SERVE IN ORGANIZED UNITS, TRAIN REGULARLY, AND ARE PAID. MEMBERS OF THE INDIVIDUAL READY RESERVE ARE NOT ASSIGNED TO UNITS AND ARE NOT PAID. THE PRESIDENT HAS AUTHORITY TO INVOLUNTARILY ORDER TO ACTIVE DUTY, FOR A MAXIMUM OF 90 DAYS, UP TO 50,000 MEMBERS OF THE SELECTED RESERVE WITHOUT THE DECLARATION OF A NATIONAL EMERGENCY. 10 U.S.C. 673B. AS MANY AS 1 MILLION READY RESERVE MEMBERS MAY BE INVOLUNTARILY CALLED TO ACTIVE DUTY, AFTER DECLARATION OF A NATIONAL EMERGENCY BY THE PRESIDENT, FOR A MAXIMUM OF 24 MONTHS. U.S.C. 673. ALL RESERVE MEMBERS MAY BE INVOLUNTARILY CALLED TO ACTIVE DUTY AFTER A DECLARATION OF WAR OR NATIONAL EMERGENCY BY THE CONGRESS FOR THE DURATION PLUS 6 MONTHS. 10 U.S.C. 672.

MEMBERS OF THE SELECTED RESERVE ARE EXPECTED TO ATTEND PERIODIC INACTIVE DUTY TRAINING DRILLS AND SERVE 2 WEEKS ON ACTIVE DUTY EACH YEAR, AND IF THEY FAIL TO PERFORM SATISFACTORILY ANY YEAR THEY MAY BE INVOLUNTARILY CALLED TO ACTIVE DUTY FOR 45 DAYS FOR THAT YEAR. SEE 10 U.S.C. 270 AND THE DEPARTMENT OF DEFENSE REGULATIONS CITED BELOW. IN ADDITION, 10 U.S.C. 673A AUTHORIZES AN UNSATISFACTORY MEMBER OF THE SELECTED RESERVE WHO HAS NOT PREVIOUSLY SERVED 24 MONTHS ON ACTIVE DUTY TO BE INVOLUNTARILY CALLED TO DUTY TO COMPLETE THAT PERIOD OF SERVICE. A PROVISION OF THE MILITARY SELECTIVE SERVICE ACT, 50 U.S.C. APP. 456(C)(2)(D), ALSO AUTHORIZES THE INVOLUNTARY INDUCTION OF A RESERVIST "WHO FAILS TO SERVE SATISFACTORILY DURING HIS OBLIGATED PERIOD OF SERVICE."

PRIOR TO THE TERMINATION OF INDUCTION AUTHORITY UNDER THE MILITARY SELECTIVE SERVICE ACT ON JULY 1, 1973, 6-YEAR RESERVE ENLISTMENTS WERE POPULAR, BEING PRIMARILY MOTIVATED BY THE ENLISTEES' DESIRE TO AVOID THE DRAFT. DEPARTMENT OF DEFENSE REGULATIONS PERTAINING TO THOSE ENLISTEES, WHO WERE MEMBERS OF THE SELECTED RESERVE, DIRECTED THAT THE ENLISTEES HAD TO BE INVOLUNTARILY ORDERED TO ACTIVE DUTY IF THEY FAILED TO PERFORM THEIR RESERVE DUTIES SATISFACTORILY. SEE, E.G., DEPARTMENT OF DEFENSE DIRECTIVE 1215.13, NOVEMBER 1, 1972 (SUPERSEDED), ATTACHMENT 19. UNSATISFACTORY RESERVISTS SO ORDERED TO DUTY FREQUENTLY APPLIED TO FEDERAL DISTRICT COURTS FOR RELIEF, USUALLY WITHOUT SUCCESS. SEE, E.G., FOX V. BROWN, 402 F.2D 837 (2D CIR. 1968) AND 286 F.SUPP. 855 (S.D.N.Y. 1968), CERT. DENIED, 394 U.S. 938 (1969), ATTACHMENT 20; SCHATTEN V. UNITED STATES, 419 F.2D 187 (6TH CIR. 1969), ATTACHMENT 21; EVAN V. CLIFFORD, 287 F.SUPP. 334 (S.D.CAL. 1968), ATTACHMENT 22; PFILE V. CORCORAN, 287 F.SUPP. 554 (D.COL. 1968), ATTACHMENT 23; AND TIETZ V. SECRETARY OF THE NAVY, 287 F.SUPP. 926 (S.D.CAL. 1968), ATTACHMENT 24. COMPARE ALSO ADAMS V. CLIFFORD, 294 F.SUPP. 1318 (D.HAWAII 1969), ATTACHMENT 25; AND GOLDSTEIN V. CLIFFORD, 290 F.SUPP. 275 (D.N.J. 1968), ATTACHMENT 26; CONCERNING GROUPS OF SATISFACTORY SELECTED RESERVE PARTICIPANTS WHO OBJECTED TO THEIR INVOLUNTARY RECALL TO DUTY DURING THE 1968 PUEBLO INCIDENT.

THE LAST OF THE 6-YEAR RESERVE ENLISTMENTS THAT WERE DRAFT MOTIVATED EXPIRED IN 1979. SINCE THEN ALL SELECTED RESERVE MEMBERS HAVE BEEN PURE VOLUNTEERS, AND THE DEFENSE DEPARTMENT REGULATIONS HAVE BEEN AMENDED ACCORDINGLY TO REDUCE THE PENALTIES FOR UNSATISFACTORY PARTICIPATION. SEE DEPARTMENT OF DEFENSE DIRECTIVE 1215.13, JUNE 30, 1979 (CURRENT), ATTACHMENT 27. WE HAVE HEARD THAT SELECTED RESERVE MEMBERS ARE NOT CURRENTLY BEING INVOLUNTARILY CALLED TO ACTIVE DUTY AS A RESULT OF UNSATISFACTORY DUTY PERFORMANCE, BUT ARE INSTEAD GENERALLY EITHER BEING GIVEN ADMINISTRATIVE DISCHARGES UNDER OTHER THAN HONORABLE CONDITIONS, OR ARE BEING KEPT ON THE ROLLS AS MEMBERS OF THE INDIVIDUAL READY RESERVE FOR POSSIBLE CALLUP IN TIME OF WAR OR OTHER NATIONAL EMERGENCY. YOU MAY WISH TO LOOK INTO THE ACCURACY OF THIS INFORMATION DURING YOUR REVIEWS.

NEVERTHELESS, IT SHOULD BE KEPT IN MIND THAT UNDER THE UNIFORM CODE OF MILITARY JUSTICE, DESERTION (10 U.S.C. 885), ABSENCE WITHOUT LEAVE (10 U.S.C. 886), AND CERTAIN OTHER OFFENSES ARE CRIMES SUBJECT TO SEVERE PUNISHMENT. IN ANY NATIONAL EMERGENCY, SEVERE PUNISHMENT MIGHT BE METED OUT TO RESERVISTS WHO FAILED TO RESPOND TO AN ACTIVE DUTY CALL AND TO OTHER SERVICE MEMBERS WHO WERE DERELICT IN THE PERFORMANCE OF THEIR DUTY. QUESTION 3. "AS A PRACTICAL MATTER, DOES THE ABILITY TO ENFORCE THE CONTRACT DIMINISH AS THE LENGTH OF TIME REMAINING ON THE CONTRACT DECREASES?"

THE ABILITY OF THE ARMED FORCES TO ENFORCE AN ENLISTEE'S SERVICE OBLIGATION DOES NOT DIMINISH AS THE LENGTH OF TIME REMAINING ON THE TERM OF SERVICE DECREASES SINCE, AS PREVIOUSLY MENTIONED, SERVICE MEMBERS GENERALLY REMAIN SUBJECT TO COURT-MARTIAL JURISDICTION UNTIL DISCHARGED.

IF A SERVICE MEMBER COMMITS AN OFFENSE IN VIOLATION OF MILITARY LAW BUT IS DISCHARGED BEFORE COURT-MARTIAL PROCEEDINGS ARE INITIATED, HE CANNOT, AFTER HE BECOMES A CIVILIAN, BE TRIED BY COURT-MARTIAL, SINCE CONSTITUTIONALLY, CIVILIANS ARE NOT SUBJECT TO TRIAL BY COURT-MARTIAL IN THE ABSENCE OF MARTIAL LAW. SEE UNITED STATES V. NOBLE, 32 C.M.R. 413 (1962), ATTACHMENT 28; UNITED STATES V. SCOTT, 29 C.M.R. 462 (1960), ATTACHMENT 29. SIMILARLY, A PERSON DISCHARGED FROM MILITARY SERVICE DOES NOT AGAIN BECOME SUBJECT TO COURT-MARTIAL JURISDICTION BY SUBSEQUENTLY MASQUERADING AS A SOLDIER IN ORDER TO UNLAWFULLY OBTAIN MILITARY PAY AND OTHER BENEFITS, IF NO ACTUAL OR CONSTRUCTIVE REENLISTMENT IS EVER EFFECTED. SEE UNITED STATES V. KING, 28 C.M.R. 243 (1959), ATTACHMENT 30. ALSO, IT HAS BEEN HELD THAT A SERVICE MEMBER MAY DEMAND HIS RELEASE FROM ACTIVE DUTY UPON THE EXPIRATION OF HIS TERM OF ENLISTMENT IF COURT- MARTIAL CHARGES ARE NOT PENDING AGAINST HIM, AND THEREAFTER HE IS NOT AMENABLE TO COURT-MARTIAL JURISDICTION EVEN THOUGH HIS SEPARATION PAPERS ARE NOT DELIVERED TO HIM. SEE UNITED STATES V. SIMPSON, 51 C.M.R. 218 (1975), ATTACHMENT 31. TAKEN TOGETHER, HOWEVER, THESE CASES DEMONSTRATE THAT AN ENLISTEE REMAINS FULLY SUBJECT TO COURT-MARTIAL JURISDICTION UNTIL THE VERY END OF HIS TERM OF ENLISTMENT, UNLESS HE IS SOONER DISCHARGED.

IN ANY EVENT, IF IT CAME TO THE ATTENTION OF MILITARY COMMAND AUTHORITIES THAT A SERVICE MEMBER, WHO HAD NOT YET COMPLETED HIS TERM OF ENLISTMENT OR BEEN DISCHARGED, HAD ABSENTED HIMSELF WITHOUT LEAVE OR HAD COMMITTED SOME OTHER OFFENSE PUNISHABLE BY MILITARY LAW, AS A PRACTICAL MATTER THEY WOULD HAVE TO TAKE SOME POSITIVE ACTION IN THE MATTER. THEY WOULD BE DERELICT IN THE PERFORMANCE OF THEIR OWN DUTIES IF THEY IGNORED THE MATTER SIMPLY BECAUSE HIS TERM OF SERVICE WAS ABOUT TO EXPIRE.

QUESTION 4. "IS THERE ANY PRACTICAL LIMIT ON THE TIME IN YEARS THAT AN INDIVIDUAL CAN OBLIGATE HIS/HER SERVICES FOR?"

THE SECRETARY CONCERNED MAY ACCEPT ORIGINAL ENLISTMENTS OF PERSONS FOR THE DURATION OF THEIR MINORITY OR FOR A PERIOD OF 2, 3, 4, 5, OR 6 YEARS IN THE REGULAR ARMY, REGULAR NAVY, REGULAR AIR FORCE, REGULAR MARINE CORPS, OR REGULAR COAST GUARD. THE SECRETARY CONCERNED MAY ACCEPT REENLISTMENTS FOR PERIODS OF 2, 3, 4, 5, OR 6 YEARS. SEE 10 U.S.C. 505.

A PERSON WHO IS QUALIFIED FOR ENLISTMENT FOR ACTIVE DUTY IN AN ARMED FORCE AND WHO IS NOT UNDER ORDERS TO REPORT FOR INDUCTION UNDER THE MILITARY SELECTIVE SERVICE ACT MAY BE ENLISTED AS A RESERVIST FOR SERVICE IN THE ARMY RESERVE, NAVAL RESERVE, AIR FORCE RESERVE, MARINE CORPS, OR COAST GUARD RESERVE FOR A TERM OF 6 YEARS. EACH PERSON SO ENLISTED SHALL SERVE ON ACTIVE DUTY FOR A PERIOD OF NOT LESS THAN 2 YEARS AND THE REST OF THE ENLISTMENT PERIOD AS A MEMBER OF THE READY RESERVE. SEE 10 U.S.C. 511(B). ALSO, A NONPRIOR-SERVICE PERSON WHO IS QUALIFIED FOR INDUCTION FOR ACTIVE DUTY IN AN ARMED FORCE AND NOT UNDER ORDERS TO REPORT FOR INDUCTION INTO AN ARMED FORCE UNDER THE MILITARY SELECTIVE SERVICE ACT (WITH CERTAIN STATED EXCEPTIONS) MAY BE ENLISTED IN THE ARMY NATIONAL GUARD OR THE AIR NATIONAL GUARD, OR AS A RESERVE FOR SERVICE IN THE ARMY RESERVE, NAVAL RESERVE, AIR FORCE RESERVE, MARINE CORPS RESERVE, OR COAST GUARD RESERVE FOR A TERM OF 6 YEARS INCLUDING AN INITIAL PERIOD OF ACTIVE DUTY FOR TRAINING OF NOT LESS THAN 12 WEEKS. SEE 10 U.S.C. 511(D).

AN ENLISTEE DOES NOT HAVE A RIGHT TO AUTOMATIC REENLISTMENT SINCE THE SECRETARY CONCERNED MAY EXERCISE HIS DISCRETION AS TO CONDITIONS OF REENLISTMENT. SEE O'CALLAHAN V. UNITED STATES, 451 F.2D 1390, 196 CT.CL. 58 (1971), ATTACHMENT 32. SEE ALSO ANTHONY R. MARTIN V. UNITED STATES, CT.CL. NO. 74-80, APRIL 9, 1982, ATTACHMENT 33.

QUESTION 5. "CAN THE ENLISTMENT CONTRACT BE TERMINATED UNILATERALLY BY THE ENLISTEE? IF SO, WHAT PENALTIES MAY BE IMPOSED ON THE ENLISTEE?"

THE ENLISTEE MAY NOT UNILATERALLY TERMINATE HIS ENLISTMENT. THIS IS FULLY DISCUSSED IN THE ANSWERS TO THE PREVIOUS QUESTIONS. SEE ALSO IN RE GRIMLEY, CITED ABOVE, ATTACHMENT 1.

QUESTION 6. "WHAT IS THE BASIS FOR THE CURRENT 6-YEAR MILITARY SERVICE OBLIGATION?"

THE 6-YEAR MILITARY OBLIGATION CURRENTLY SET FORTH AT 10 U.S.C. 651 WAS ESTABLISHED BY SECTION 3 OF THE RESERVE FORCES ACT OF 1955, CH. 665, 69 STAT. 598, 602-603, ATTACHMENT 34. THE PERIOD OF MILITARY SERVICE OBLIGATION HAD PREVIOUSLY BEEN ESTABLISHED AT 8 YEARS PURSUANT TO THE JUNE 19, 1951 AMENDMENT OF THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT, CH. 144, 65 STAT. 75, ATTACHMENT 35.

THE PERTINENT LEGISLATIVE HISTORY OFFERS LITTLE IN THE MANNER OF EXPLANATION FOR THE REDUCTION OF THE MILITARY SERVICE OBLIGATION TO 6 YEARS EXCEPT THAT IT WAS BELIEVED THAT "6 YEARS IS AMPLE TIME TO TRAIN A YOUNG MAN BOTH ON ACTIVE DUTY AND THEREAFTER IN THE RESERVE COMPONENTS." ALSO, AT THAT TIME, THE READY RESERVE EXCEEDED ITS AUTHORIZED STRENGTH, BUT IT WAS BELIEVED TO BE INEFFECTIVE BECAUSE TOO FEW MEMBERS WERE ACTIVELY PARTICIPATING IN TRAINING. SEE H.R.REP. NO. 987, 84TH CONG. 1ST SESS. 4 (1955), ATTACHMENT 36.

IT IS NOTED THAT IN PREPARED STATEMENTS REPRESENTATIVES OF THE ARMED FORCES AND THE DEPARTMENT OF DEFENSE IN 1955 STRONGLY OBJECTED TO THE PROPOSED REDUCTION OF THE MILITARY SERVICE OBLIGATION FROM 8 YEARS TO 6 YEARS. THEY EXPRESSED A BELIEF THAT THIS REDUCTION WOULD ADVERSELY AFFECT THE CAPABILITY OF THE ARMED FORCES. SEE S.REP. NO. 840 AND CONF.REP. NO. 1335, 84TH CONG. 1ST SESS. REPRINTED IN 1955 U.S.C. CONG. & AD.NEWS. 2794, PERTINENT EXCERPTS SET OUT IN ATTACHMENT 37.

THE DEPUTY ASSISTANT SECRETARY OF DEFENSE FOR RESERVE AFFAIRS RECENTLY TOLD A CONGRESSIONAL SUBCOMMITTEE THAT THE CURRENT PROPOSAL TO EXTEND THE SERVICE OBLIGATION FROM 6 TO 8 YEARS IS DESIGNED TO STRENGTHEN THE INDIVIDUAL READY RESERVE. SEE NEWSPAPER ARTICLE (ARMY TIMES, APRIL 5, 1982) ATTACHMENT 38.

WE TRUST THIS WILL SERVE THE PURPOSE OF YOUR INQUIRY. HOWEVER, SHOULD YOU HAVE FURTHER QUESTIONS OR COMMENTS, PLEASE CONTACT ME OR DONALD A. GURITZ OR DAVID AGAZARIAN, THE ATTORNEYS ON MY STAFF WHO PREPARED THIS MEMORANDUM.

ATTACHMENT DESCRIPTION

1 IN RE GRIMLEY (SUPREME COURT, 1890) 2 MCCORD V. PAGE (CIR. COURT, 1941) 3 CHAVEZ V. FERGUSSON (CIR. COURT, 1968) 4 U. S. V. HALL (COURT-MARTIAL, 1967) 5 NORRIS V. NORMAN (DIST. COURT, 1969) 6 MATTER OF BLAYLOCK (COMP.GEN., 1981) 7 BORSCHOWA V. CLAYTOR (CIR. COURT, 1977) 8 PENCE V. BROWN (CIR. COURT, 1980) 9 FRENTHEWAY V. BODENHAMER (DIST. COURT, 1977) 10 PEAVY V. WARNER (CIR. COURT, 1974) 11 DUBEAU V. C. O. (DIST. COURT, 1977) 12 BEMIS V. WHALEN (DIST. COURT, 1972) 13 WITHUM V. O'CONNOR (DIST. COURT, 1981) 14 NOVAK V. RUMSFELD (DIST. COURT, 1976) 15 BRUCE V. U. S. ARMY (DIST. COURT, 1981) 16 WALLACE V. CHAFEE (CIR. COURT, 1971) 17 U. S. V. KAASE (COURT-MARTIAL, 1964) 18 U. S. V. SILVERYA (COURT-MARTIAL, 1956) 19 DOD DIRECTIVE 1215.13 (1972, SUPERSEDED) 20 FOX V. BROWN (CIR. COURT, 1968) 21 SCHATTEN V. U. S. (CIR. COURT, 1969) 22 EVAN V. CLIFFORD (DIST. COURT, 1968) 23 PFILE V. CORCORAN (DIST. COURT, 1968) 24 TIETZ V. SEC. OF NAVY (DIST. COURT, 1968) 25 ADAMS V. CLIFFORD (DIST. COURT, 1969) 26 GOLDSTEIN V. CLIFFORD (DIST. COURT, 1968) 27 DOD DIRECTIVE 1215.13 (1979, CURRENT) 28 U. S. V. NOBLE (COURT-MARTIAL, 1962) 29 U. S. V. SCOTT (COURT-MARTIAL, 1960) 30 U. S. V. KING (COURT-MARTIAL, 1959) 31 U. S. V. SIMPSON (COURT-MARTIAL, 1975) 32 O'CALLAHAN V. U. S. (COURT OF CLAIMS, 1971) 33 MARTIN V. U. S. (COURT OF CLAIMS, 1982) 34 RESERVE FORCES ACT OF 1955, 69 STAT. 598 35 ACT OF JUNE 19, 1951, 65 STAT. 75 36 H. R. REPORT 987, JUNE 28, 1955 37 S. REPORT 840, JULY 13, 1955; AND CONF. REP. 1335, JULY 21, 1955 (EXCERPTS) 38 ARMY TIMES, APRIL 5, 1982 (PAGE 25) U.S.C. CITATIONS (CURRENT) 39 10 U.S.C. 270 40 10 U.S.C. 505 41 10 U.S.C. 511 42 10 U.S.C. 651 43 10 U.S.C. 671A 44 10 U.S.C. 672 45 10 U.S.C. 673 46 10 U.S.C. 673A 47 10 U.S.C. 673B 48 10 U.S.C. 802 49 10 U.S.C. 885, AND LAW REVIEW ARTICLE CONCERNING CAPITAL PUNISHMENT UNDER THE UCMJ 50 50 U.S.C. APP. 456(C)(2)(D)