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McHale v. State

Decided: March 24, 1981.

JOHN J. MCHALE, JR., PETITIONER-APPELLANT,
v.
STATE OF NEW JERSEY CIVIL SERVICE COMMISSION, RESPONDENT-RESPONDENT



On appeal from final decision of the Civil Service Commission.

Bischoff, Milmed and Francis. The opinion of the court was delivered by Francis, J.A.D.

Francis

This appeal challenges the denial by the Civil Service Commission of veterans' preference status to appellant.

On May 31, 1973 appellant John J. McHale, Jr. was appointed a reserve commissioned officer in the Army of the United States. A commission was bestowed upon him upon completion of the Senior Reserve Officers' Training Corps (ROTC) Program established pursuant to the authority of 10 U.S.C.A. § 2101 et seq. Two years earlier appellant had enlisted in the United States Army Reserve with assignment to the USAR Control Component ROTC as part of his advanced military training in the Senior Reserve Officers' Training Corps Program, 10 U.S.C.A. § 2104. That enlistment was for six years unless sooner discharged by proper authority. On May 30, 1973, upon completion of the Senior ROTC Program, McHale was honorably discharged from his Reserve Corps obligation and was immediately thereafter, pursuant to the authority of 10 U.S.C.A. § 2106, appointed a commissioned officer in the United States Army Reserve.

During the course of McHale's collegiate education he had received a deferment from induction into the armed forces as a result of this entry into the Senior ROTC Program. His deferment was provided pursuant to the specific authority of 50 U.S.C.A. App. § 456(d)(1), (Senior Division, ROTC). The same statute also provided further authority for McHale's commission upon successful completion of this Senior ROTC program and set forth his active military obligation upon an acceptance of a commission. The statutory provision reads as follows:

Within such numbers as may be prescribed by the Secretary of Defense, any person who (A) has been or may hereafter be selected for enrollment or continuance in the senior division, Reserve Officers' Training Corps, . . . (B) agrees, in writing, to accept a commission, if tendered, and to serve subject to order of the Secretary of the military department having jurisdiction over him . . . not less than two years on active duty after receipt of a commission; and (C) agrees to remain a member of a regular or reserve component until the eighth anniversary of the receipt of a commission in accordance with his obligation under the first sentence of section 651 of Title 10, or until the sixth

anniversary of the receipt of a commission in accordance with his obligation under the second sentence of section 651 of Title 10, shall be deferred from induction under this title [sections 451 to 471a of this Appendix] until after completion or termination of the course of instruction and so long as he continues in a regular or reserve status upon being commissioned, but shall not be exempt from registration . . . . upon the successful completion by any person of the required course of instruction . . . such person shall be tendered a commission in the appropriate reserve component of the Armed Forces if he is otherwise qualified for such appointment. If, at the time of, or subsequent to, such appointment, the armed force in which such person is commissioned does not require his service on active duty in fulfillment of the obligation undertaken by him in compliance with clause (B) of the first sentence of this paragraph, such person shall be ordered to active duty for training with such armed force in the grade in which he was commissioned for a period of active duty for training of not less than three months or more than six months. . . Upon being commissioned and assigned to a reserve component, such person shall be required to serve therein, or in a reserve component . . . until the eighth anniversary of the receipt of such commission pursuant to the provisions of this section. [Emphasis supplied.]

Upon appellant's commission in the United States Army Reserve it was determined by the Department of the Army, as provided for in the foregoing section, that his service on active duty for two years was not then required in fulfillment of the service obligation undertaken by him in 1971. Accordingly, appellant was ordered, as further provided in the same section, to active duty for training with the United States Army for a period of not less than three months or more than six months. The authority for that activation was specifically noted as 50 U.S.C.A. App. § 456(d)(1). In addition, McHale's military service obligation, as again provided in the same section, was extended to eight years from the date of his commission.

On February 21, 1974 McHale reported for active duty training with the United States Army at Fort Benning, Georgia. On May 26, 1974, 93 days later, McHale completed his active military service and was thereupon separated from active duty and assigned to the reserve component for the remainder of his eight years military service obligation.

On June 10, 1974 McHale was appointed to the position of Sanitarian with the New Jersey Department of Health, a position covered under the State Civil Service jurisdiction. In 1977

he applied for and received veterans' status from the Department of Civil Service and was assigned a veterans' preference number. In 1978 he applied for the Senior Sanitarian examination and in 1979 he ...


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