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September 19, 1980

James Donald McDANIEL, M.D., Plaintiff,
Edward HIDALGO, Secretary of the Navy, Defendant

The opinion of the court was delivered by: PENN


This case comes before the Court on plaintiff's motion for a preliminary injunction *fn1" and defendant's motion for summary judgment, or in the alternative, to dismiss. *fn2"


 Very briefly, the facts are as follows: On or about August 20, 1973, the plaintiff signed a contract *fn3" with the Navy under the Armed Forces Health Professions Scholarship Program (Program), 10 U.S.C. § 2120 et seq. Plaintiff is currently a Lieutenant in the United States Naval Reserve. The Program was established to fill manpower needs after the draft of medical personnel was ended. See S.Rep.No. 92-827, 92d Cong., 2d Sess., reprinted in (1972) U.S. Code Cong. & Admin.News pp. 3329, 3335. At the time he signed his contract, plaintiff was not liable for service under the Universal Military Training and Service Act. Under the Program, the plaintiff incurred an active duty obligation and the Navy, in return, paid for his medical education and provided him with a stipend. On July 30, 1975, the plaintiff wrote the Navy seeking to delay his active duty obligation *fn4" so that he could participate as a civilian resident; the Navy approved, and his active duty obligation was postponed until after June 30, 1979. On September 13, 1978, the plaintiff requested another postponement of his active duty date and the Navy agreed to postpone his active duty date until July 1, 1980. On January 19, 1980, plaintiff requested a teaching assignment in a teaching facility and indicated his preference for a West Coast assignment. Finally, on March 22, 1980, plaintiff requested that he be released from his active duty obligation alleging that his services were essential to his community. *fn5"

 At the time of his request for release from his active duty obligation, the plaintiff was employed as a psychiatric physician in Ottumwa, Iowa, described as the "medical hub" for a ten county area serving approximately 150,000 people. His application was supported by approximately 100 letters from members of the community and Iowa officials, including the Governor of that state. *fn6" Defendant does not seriously dispute the needs of the community in this case.

 The Bureau of Medicine and Surgery recommended that the Commander of the Naval Military Personnel Command not accept the plaintiff's resignation. The Commander denied plaintiff's request on May 4, 1980, noting the needs of the Navy at the Naval Regional Medical Center in Portsmouth, Virginia. Plaintiff appealed that decision to the Secretary of the Navy who ruled on June 27, 1980, that plaintiff must report for active duty. Plaintiff then filed this action. The matter was thereafter reconsidered by the Secretary because it was found that the staffing figures originally prepared for the Secretary had been in error. The Secretary denied the plaintiff's request on July 21, 1980, citing as grounds that the granting of the request would not be in the best interests of the Navy. *fn7"

 There is no genuine dispute as to any material fact in this case.


 Plaintiff argues that the Navy did not properly consider his request for release from active duty pursuant to Department of Defense Instruction 1205.1(X)(D) (DOD 1205.1(X)(D)) which provides:

Upon receipt of active duty orders any reserve officer and/or his employer may submit a request for a delay in entrance on active duty and/or exemption from active duty to a board authorized by the military department concerned to consider such cases. If such action results in disapproval, when the request is based on alleged community essentiality or hardship, the officer and/or his employer may submit an appeal to a higher authority within the military department concerned for a final determination of the matter.

 DOD 1205.1, which is sometimes referred to as the "Berry Plan", has been the subject of numerous cases. See Nicholson v. Brown, 599 F.2d 639 (5th Cir. 1979); Appelwick v. Hoffman, 540 F.2d 404 (8th Cir. 1976); Roth v. Laird, 446 F.2d 855 (2nd Cir. 1971); Miller v. Claytor, 466 F. Supp. 938 (N.D. Cal.1979); Karlin v. Mack, 7 Military Law Reporter 2516 (S.D. Tex. Oct. 10, 1979). In those cases where DOD 1205.1(X)(D) is applicable, the defendant is required to carefully weigh just how essential the applicant for exemption is to the community as compared to, in this case, the needs of the Navy. See, e.g., Miller v. Claytor, supra at 941. This is so because DOD 1205.1(X)(D) was primarily designed "to protect communities from the sudden removal of practicing physicians upon whom they had come to rely". Nicholson v. Brown, supra at 647. The defendant here does not seriously contend that he engaged in such a weighing process, and if DOD 1205.1(X)(D) is indeed applicable, the Court would be required to remand the case to the defendant for further consideration of the application.

 Such action is not necessary here, however, since in the view of the Court, DOD 1205.1 is inapplicable. That provision was written to implement the Universal Military Training and Service Act which subjected doctors and dentists to the draft. Specifically, it allowed medical and dental registrants to apply for commissions after receipt of induction notices and allowed them to defer active duty while completing their medical training. The plaintiff however, was not subject to induction under the above law; rather, he entered the Naval Reserve under the Program, 10 U.S.C. § 2120 et seq. Under the Program, the applicable directive is DOD 1215.14 which is specifically designed to implement the Program. DOD 1215.14 does not contain a "community essentiality exemption" and only permits the defendant to release a member who is dropped from the Program "when such action would be in the best interest of the military department". See DOD 1215.14(IV)(H). Moreover, it provides that a member of the Program may not be dropped solely because he is willing and able to refund all payments.7a See DOD 1215.14(IV)(H)(2).

 Plaintiff contends nevertheless, that even if DOD 1205.1 is not directly applicable to his case, it became applicable because it was incorporated and carried over by reference in DOD 1215.14. The Court finds this contention without merit. While it is true that DOD 1215.14 does make reference to DOD 1205.1, it does not incorporate any part of the latter directive except insofar as incorporating the moral and physical qualifications found in DOD 1205.1. See DOD 1215.14(IV)(C). No other reference to DOD 1205.1 is contained in the entire directive. If there had been any intent to incorporate the community essentiality provision of DOD 1205.1, a simple reference would have sufficed. Such a reference would most likely have been inserted at DOD 1215.14(IV)(H). Absent such a reference, it is logical to conclude that incorporation was neither desired nor intended.

 The argument that DOD 1205.1 was amended in 1973, after the Program came into effect, and therefore must be considered an exemption under the Program, is likewise without merit. It may have been that at the time of the amendment to DOD 1205.1 in 1973, there were reservists who had entered the Navy under the "Berry Plan"; clearly the plaintiff ...

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