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FAIRBANK v. BROWN

December 31, 1980

John C. FAIRBANK, Plaintiff,
v.
Harold BROWN, Secretary of Defense, and Clifford L. Alexander, Jr., Secretary of the Army, Defendants



The opinion of the court was delivered by: PARKER

MEMORANDUM OPINION

 Section 1163(d) of Title 10 provides that "a member of a reserve component who is on active duty and is within two years of becoming eligible for retired pay ... under a purely military retirement system, may not be involuntarily released from that duty before he becomes eligible for that pay, unless his release is approved by the Secretary". The companion Army regulation further explains that the officer must complete 18 years of service by his scheduled release date. A.R. 635-100, para. 3-58(e). *fn2"

 Lt. Col. Fairbank, a Reserve officer, was scheduled for release in 1973 after 15 years of active duty service. Because of intervening litigation initiated by Fairbank, his release was stayed until 1976. By that time he had completed over 18 years of service. In his litigation, Fairbank had challenged an earlier decision of the Army Secretary denying him the right to reenlist as an enlistee because there had been a break in his active duty service. He ultimately prevailed in that litigation and the appellate court held that the fact that he was eligible to reenlist on a prior occasion did not foreclose his present eligibility to reenlist. *fn3"

 The question now presented is whether Fairbank is entitled to the protection of § 1163(d) because he completed 18 years of active duty service before the Army released him in 1976 after the stay issued by the court of appeals was lifted.

 The parties have presented cross-motions for summary judgment. *fn4" After consideration of the memoranda of counsel and the affidavits and exhibits submitted in support thereof, the Court determines that summary judgment should be granted for the defendants and Fairbank's complaint should be dismissed. Section 1163(d) should not afford protection to a plaintiff under the circumstances of this case nor serve as a basis for a challenge to his release from active duty service as a Reserve officer. The reasons in support of this conclusion are set forth below.

 The Factual and Statutory Background

 In August 1973 Fairbank applied for and was denied an opportunity to reenlist in the Regular Army. Thereafter, he filed suit requesting the court to grant injunctive and declaratory relief, recognizing his right to reenlist in the Regular Army in an appropriate enlisted grade. *fn6" His right to reenlist was upheld by the court of appeals in December 1975, and on remand, the district court directed the Army to process his reenlistment.

 Several months later, in April 1976, Fairbank was again approved by the Secretary of the Army for official release from active duty as an Army Reserve officer, effective immediately. At that time, Fairbank had more than 18 years of total active service. Thereafter, he continued service on active duty as an enlistee in the Regular Army until 1978, when he was placed on the retired list in the grade of Lieutenant Colonel and began to draw the retired pay of that grade.

 Two military statutes are involved in this proceeding: 10 U.S.C. § 681(a) and 10 U.S.C. § 1163(d). The first confers upon the Secretary absolute discretion to release a reservist at any time. *fn7" Fairbank does not base his challenge on any right conferred by that section. Instead, he claims protection under § 1163(d) as an 18-year reservist. That section and its companion Army regulation, A.R. 635-100, para. 3-58(e), preclude the discharge of a reservist with 18 years of service except with the special concurrence of the Army Secretary. Section 1163(d) places limitations on the separation of active duty reservists who are within two years of becoming eligible for retirement benefits. The Secretary of the Army must approve the release of all 18-year reservists or they must be retained on active duty until completion of 20 years of active service, at which point they are entitled to retirement benefits. Section 1163(d) was originally enacted as part of an act to provide a lump-sum readjustment payment to members of the Reserve components who were involuntarily released from active duty. (see former 50 U.S.C. § 1016 (1958)). *fn8" The law provided separated reservists with the financial means to aid readjustment to civilian life. The reservist was entitled to a payment equal to one-half of one month's basic pay in the grade in which he was serving at the time of the release, for each year of his active service duty ending at the close of the eighteenth year. The computation ended at the eighteenth year because thereafter a reservist was assured he would be retained until he was eligible for retirement benefits unless the Secretary approved his release. *fn9"

 While the legislative history provides a background to the purpose of this provision, it does not answer the question of concern to the Court whether § 1163(d) should apply to a plaintiff who accumulated 18 years of service during a court issued stay ...


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