Robert Alan Borschowa, Cross-Appellee v. W. Graham Claytor, Jr., Secretary of the Navy, Cross-Appellants. Nos. 76-2370, 76-2438

The district court’s award of partial summary judgment granting appellant a writ of habeas corpus on the ground of the Navy’s breach of appellant’s agreement to extend the term of his enlistment wás made without the benefit of the Supreme Court’s intervening decision in Larionoff v. United States, 431 U.S. 864 , 97 S.Ct. 2150 , 53 L.Ed.2d 48 (1977). There the Court held that “ ‘[a] soldier’s entitlement to pay is dependent upon statutory right,’ Bell v. United States, 366 U.S. 393, 401 , 81 S.Ct. 1230 , 6 L.Ed.2d 365 (1961) and . . . accordingly the rights of . affected service members must be determined by reference to the [governing] statutes and regulations . . rather than to ordinary contract principles.” 431 U.S. at 869 , 97 S.Ct. at 2154 (footnote omitted). See also Collins v. Rumsfeld, 559 F.2d 1178 (9th Cir. 1977), on remand from Saylors v. United States, 432 U.S. 903 , 97 S.Ct. 2945 , 53 L.Ed.2d 1075 (1977), vacating Collins v. Rumsfeld, 542 F.2d 1109 (9th Cir. 1976).

We are clear that even absent Larionoff , habeas relief ought not to be accorded a member of the armed services to effect a termination of his enlistment in instances where, as here, the breach consists…