Bradish G. Morse v. Boswell Jeffrey S. Berke

1968-10-14

Headline: Court denies requests to continue stays and allows Army activation orders for Ready Reserve members to proceed, affecting reservists called to 24-month active duty without credit for prior service.

Holding: The Court denied the applications to continue interim stays, allowing the Army’s activation orders for Ready Reserve members to take effect while further review proceeds.

Real World Impact:

Allows Army activation orders to proceed while appeals continue.
Some reservists may serve 24 months without credit for prior active duty.
Raises questions about enforcing enlistment promises requiring war or national emergency.

Topics: reserve activation, enlistment contracts, military mobilization, presidential military authority

Summary

Background

A group of reservists who were ordered to active duty as part of Ready Reserve units challenged the Army's order that they serve 24 consecutive months. They argued the Secretary of the Army exceeded the authority he received after the President and the Secretary of Defense delegated power to activate units. The men sought release by habeas corpus and Justice Douglas granted interim stays to preserve their chance for review before possible deployment to Vietnam.

Reasoning

The key questions were whether the Army exceeded its delegated power by ordering individuals to serve 24 consecutive months instead of activating units for up to 24 months, and whether enlistment contracts that promised activation only in war or a congressional emergency were being broken. Justice Douglas explained that the delegation language referred to units and cited the statutory provision saying a member may serve until his total active duty equals 24 months, which suggests credit for prior service. He also noted statutory provisions about activation in war or national emergency and that Congress had not declared such conditions in this instance.

Real world impact

Because the full Court denied the stay applications, the Army's activation orders were allowed to take effect while further review continued. Reservists called as part of units could be required to serve immediately for 24 months and face possible deployment without the credit they expected. The ruling at this stage is procedural, not a final decision on the legal merits, and the legal dispute could still change on further review.

Dissents or concurrances

Justice Douglas dissented from the denial of stays and said he would have continued the stays to allow full merits review, arguing the Secretary exceeded delegated authority and enlistment promises should be preserved.