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Gross v. New Jersey Army National Guard

Decided: January 10, 1972.

PHILIP GROSS, PLAINTIFF,
v.
NEW JERSEY ARMY NATIONAL GUARD, MAJOR GENERAL WILLIAM SHARP, THE CHIEF OF STAFF, NEW JERSEY ARMY NATIONAL GUARD, AND MAJOR WILLIAM COONEY, COMMANDER 2ND BATTALION 50TH ARMOR DIVISION NEW JERSEY ARMY NATIONAL GUARD, DEFENDANTS



Mehler, J.s.c. (orally).

Mehler

This is an action heard summarily pursuant to R. 4:67-1, which authorizes the court to hear cases in a summary manner where permitted by rule or statute.

The action is one brought under the habeas corpus statute, N.J.S.A. 2A:67-1 et seq. , and more particularly ยง 13, to inquire into the cause of plaintiff's detention by the New Jersey Army National Guard (National Guard) and to compel the Chief of Staff of the National Guard to order the discharge of plaintiff from the National Guard. Sections 15 and 25 authorize the Superior Court to hear the matter summarily.

Plaintiff, who is a member of the National Guard, contends that due to a medical condition which preexisted his

enlistment in the National Guard, his induction or enlistment is void and his continued involuntary membership in that organization is in violation of his rights.

I find from the evidence as follows:

Plaintiff, who was born on August 2, 1945 and was therefore subject to the draft in 1965, a time when this country was and still is involved in a conflict in Southeast Asia, was ordered in August 1965 to appear before his local draft board for a preinduction physical examination. He appeared on August 13, as directed. Plaintiff has had an undescended right testicle since birth and had this condition in 1965 and continuously thereafter until the summer of 1971, when it was removed by means of a surgical procedure. The army regulations governing the standards for induction or enlistment, and more specifically A.R. 40-501, 2-14(m)3, which was in effect in 1965 and is still in effect, state that an undescended testicle is a cause for rejection. Plaintiff was classified as acceptable for military service.

Prior to January 1, 1966 plaintiff endeavored to enlist in the National Guard. On August 20, 1966 he received his physical examination by a National Guard physician, whom plaintiff did not apprise of his condition. It has been stipulated that the physical examination was regular and fair. Plaintiff was found fit for military service and on August 21, 1966 was inducted into the National Guard. On the same day he enlisted in and became a member of the Reserve of the Army for service in the Army National Guard of the United States and entered into an enlistment agreement for a period of six years. From August 21, 1966 to the present time he has continuously been a member of the New Jersey Army National Guard and of the Army National Guard of the United States.

On February 14, 1970 plaintiff was given a periodic medical examination at Fort Monmouth and was found qualified for continued retention in the National Guard. A surgical consultation concerning the right testicle was recommended by the examining physician.

In that year plaintiff was informed by an Army doctor that the fact that he had an undescended testicle should have precluded his induction or enlistment in the National Guard.

On March 24, 1971 plaintiff was given another medical examination at Fort Monmouth and again was found qualified for continued retention in the National Guard. The medical examiner found an undescended right testicle and recommended a surgical procedure known as an R Orchiectomy. Following an examination conducted by an officer in a hospital at Fort Monmouth, the ...


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