Opinion
No. 72-1075.
Submitted June 16, 1972.
Argued July 10, 1972.
Elmer W. Foster, Taylor Law Firm, Minneapolis, Minn., for appellant.
Stephen G. Palmer, Asst. U.S. Atty., Robert G. Renner, U.S. Atty., Minneapolis, Minn., for appellees.
Appeal from the United States District Court for the District of Minnesota.
This appeal is from the Order of the United States District Court denying appellant's petition for a writ of habeas corpus.
Prior to September 24, 1970, appellant was a member of the Minnesota Army National Guard, having enlisted on December 28, 1965. Appellant absented himself without having been excused from summer camp in 1970. Pursuant to the request of his Commanding Officer, appellant was discharged from the National Guard and ordered to report to the Army for active duty. He failed to report, was taken into custody and thereupon sought habeas corpus relief.
Judge Larson heard the evidence. He recognized that, absent extraordinary circumstances not present in this case, federal courts should not interfere with discretionary decisions of armed forces officers. Byrne v. Resor, 412 F.2d 774, 775 (3rd Cir. 1969); Smith v. Resor, 406 F.2d 141, 145 (2nd Cir. 1969); United States ex rel. Schonbrun v. Commanding Officer, 403 F.2d 371, 374 (2nd Cir. 1968), cert. denied, 394 U.S. 929, 89 S.Ct. 1195, 22 L.Ed.2d 460 (1969). Applying this correct view of the law to the facts before him, the judge refused to issue the requested writ.
We are in full agreement with the decision reached by the District Court and affirm on the basis of that court's opinion, 344 F. Supp. 1125. See Rule 14, Rules of the Eighth Circuit Court of Appeals.