Nixon v. Secretary of the Navy (422 F.2d 934, 1970)

ANDERSON, Circuit Judge:

This is an appeal from a judgment and order of the District Court for the Eastern District of New York, denying in an unreported opinion the application of the petitioner Nixon for a declaratory judgment and writ of mandamus requiring the Secretary of the Navy to cancel a two-year enlistment extension agreement and discharge appellant from the Navy.

On February 5, 1965, the appellant enlisted in the United States Navy for a period of four years under the “High School-Junior College Graduate Training Program” for participation in the nuclear field program. Nixon completed his basic training with satisfactory results, and was transferred to a Class “A” School at Great Lakes Naval Training Center for technical training. Because participation in the nuclear program requires a six-year service commitment while at Class “A” School, Nixon executed an agreement for a two-year extension for the term of his enlistment, which contained the following statement:

“Training (Nuclear Field Program— BPI 1306.64 series). I understand that upon successful completion of Class ‘A’ School this agreement becomes binding and thereafter may not be cancelled except as set forth in BUPERSMAN Art. C-1407.”

The agreement was signed on October 25, 1965. Nixon graduated from Class “A” School on February 6, 1966, received a pay advance to Grade E-4, and was transferred to the Naval Nuclear Power School at Bainbridge, Maryland. Following graduation from Power School on September 16, 1966, he received Nuclear Plant Operator instruction at Windsor, Connecticut, and attended the basic submarine course at New London, Connecticut. After completing these courses, he was assigned to the nuclear submarine USS Theodore Roosevelt for sea duty, commencing on September 6, 1967, and scheduled to continue for 14 months.

Nixon completed only one Polaris Deterrent Patrol (consisting of two months submerged operation at alert status), however, before requesting relief from submarine duty. On January 28, 1968, he submitted a request for disqualification for duty in submarines on the ground that he was no longer a volunteer for submarine duty and that he could not master the living and working conditions required for the Polaris program. **Citing Nixon’s “inability to progress at a reasonable rate of qualification,” the commanding officer of the USS Theodore Roosevelt recommended that Nixon’s request for removal from submarine duty be approved and that ‘he be transferred to “submarine support activity.” The Chief of Naval Personnel approved the request and on February 20, 1968, Nixon was declared no longer eligible for nuclear power plant operation and was transferred to the USS Compass Island .effective March 20, 1968.

On October 8, 1968, Nixon, through his attorney, requested cancellation of the two-year extension agreement because “the reason for said extension has ceased to exist and the condition under which it was to become operative has failed to materialize.” On November 22, 1968, the Chief of Naval Personnel rejected the request for cancellation and ruled that Nixon was obligated to serve the additional two years active duty.

On January 28, 1969, Nixon filed a petition in the district court in which he requested that a declaratory judgment be entered, pronouncing all extensions of his enlistment contract null and void and that the Secretary of the Navy be ordered to take the appropriate steps to cancel the extensions and discharge Nixon from further service in the Navy. On August 13, 1969, the district court denied all relief requested by Nixon, granted the Secretary’s motion for summary judgment, and dismissed the complaint.

Nixon’s first claim is that under the appropriate regulations it was mandatory that his October 25, 1965 extension agreement be cancelled, and that it was error for the district court not to so find. Before examining the merits of this claim, it should first be noted that if the Navy did fail to follow its own directives it is clear that the district court would have had the power to issue the requested writ. While the courts are reluctant to interfere in military affairs, the Navy is bound by its own validly promulgated regulations, and the district courts are free to entertain suits by servicemen requesting compliance with such rules. Smith v. Resor, 406 F.2d 141 (2 Cir. 1969); Hammond v. Lenfest, 398 F.2d 705 (2 Cir. 1968). Upon examination of the merits, however, we cannot agree with appellant’s claim that he was entitled to mandatory cancellation of the October 25, 1965 extension agreement.

Under the terms of the agreement itself Nixon was bound to the two-year extension from the moment he graduated from Class “A” School on February 6. 1966, and he could only be released in accordance with BUPERSMAN Art. C-1407. Of course, his application for cancellation must have been filed in time.

BUPERSMAN C-1407 (3) (a) says, “* * * a valid extension of enlistment that has become operative cannot be cancelled,” and BUPERSMAN C-1407(1) (c) provides that an extension “becomes operative” on “the date on which the Extension of Enlistment goes into effect and service thereunder commences.” In Nixon’s case that date was February, 6, 1969, and his October 8, 1968 request was therefore timely.

The regulation governing Nixon’s right to mandatory cancellation is BUPERSMAN C-1407(3) (b), the pertinent portion of which reads as follows:

“(b) Commanding officers shall cancel agreements to extend enlistment, prior to operative date, in the following cases:

* * * * * *

4. * * * when an individual, through no fault of his own, has not received any of the benefits for which the extension was executed by the day next preceding the operative date of the extension.”

The district court found that Class “A” School training was a benefit contemplated under the agreement, and that Nixon was therefore not entitled to mandatory cancellation. Nixon argues, however, that as the signing of an extension agreement was not a prerequisite for Class “A” School training, graduation from that school was not a benefit contemplated by the extension agreement. Assuming, without deciding, that Nixon is correct and that graduation from Class “A” School does not preclude mandatory cancellation under BUPERSMAN Art. C-1407(3) (b) (4), it is still clear that Nixon was the recipient of sufficient benefits contemplated by the extension agreement to bar mandatory cancellation. These include his attendance at and graduation from Nuclear Power School, instruction as Nuclear Plant Operator, and the basic submarine course, as well as his advancement to a higher pay grade. All of these were benefits which came to Nixon from his entering into the extension agreement, and thus preclude cancellation of that agreement under BUPERSMAN Art. C-1407(3) (b) (4).

Finally, Nixon urges that he is entitled to mandatory cancellation because the “purpose of the extension,” namely, qualification as a nuclear power plant operator, has not been realized. But BUPERSMAN Art. C-1407(3) (b) (4) does not speak in terms of the “purpose of the extension,” but rather limits mandatory cancellation only to those situations where the enlistee has not received “any of the benefits” contemplated by the extension agreement. In the light of the benefits which Nixon received, the district court’s determination that he was not entitled to mandatory cancellation of his extension agreement under BUPERSMAN Art. 0-1407(3) (b) is correct.

Nixon’s second claim is that even if he is not entitled to mandatory cancellation of the extension agreement, it was improper for the Chief of Naval Personnel not to grant a discretionary cancellation and the error was compounded when the district court refused to order him to do so. The portion of the regulation, BUPERSMAN Art. C-1407(3) (a), which Nixon seeks to invoke reads as follows:

“ * * * Requests or recommendations for cancellation of agreements to extend enlistments which have not become operative and for which authorization is not provided below and which appear meritorious, shall be forwarded to the Chief of Naval Personnel for determination.”

To implement the exercise of this discretionary authority, the Chief of Naval Personnel issued certain instructions which preliminarily described the categories of enlistees whose individual cases would be considered for discretionary cancellation. The instructions in effect in 1965, when Nixon enlisted, were set out in BUPERINST 1306.64D(9) (d) and provided as follows:

“Once Nuclear Field Personnel have executed agreements to extend their enlistments as outlined above, requests