Claytor

MEMORANDUM OF DECISION

Plaintiff and defendants filed cross motions for summary judgment in this action. Upon consideration of the written authorities and oral argument heard on November 3, 1978, it is the opinion of this Court that summary judgment be granted for plaintiff, and that the action be remanded to the Community Essentiality Board, Bureau of Naval Personnel, for further consideration consistent with the views expressed herein.

Plaintiff, a cardiovascular surgeon commissioned in the United States Navy Reserve in 1972, has by his voluntary requests been repeatedly deferred from active duty under the “Berry Plan” to further his specialized medical education. Following notice to plaintiff that he report to active duty in July 1978, plaintiff sought and was denied an exemption from active service under Department of Defense (D.O.D.) Instruction § 1205.1(X)(D). That regulation provides that a military board will consider such an exemption request, and that when the request is based upon community essentiality or hardship, an appeal may be submitted to a higher military authority for a final determination of the matter. Plaintiff’s request, based upon both community…