[p341] MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Petitioner is an Army Reserve officer not on active duty. His active-duty obligations were deferred while [p342] he went to law school after graduating from college. During the period of deferment and at the time this action was commenced, his military records were kept at Fort Benjamin Harrison, Indiana. His nominal commanding officer was the Commanding Officer of the Reserve Officer Components Personnel Center at Fort Benjamin Harrison. Petitioner was, however, at all times domiciled in California and was never in Indiana or assigned there. On finishing law school he took the California Bar examination and on March 5, 1970, he was ordered to report for active duty at Fort Gordon, Georgia, beginning April 13, 1970. Before that time, however, he had filed an application for discharge as a conscientious objector. That application was processed at Fort Ord, California, where hearings were held. Fort Ord recommended his discharge and review of that recommendation was had in Indiana. The result was disapproval of the application.
Petitioner thereupon filed a petition for a writ of habeas corpus in California. The District Court denied a motion to dismiss, holding that it had jurisdiction (3 S.S.L.R. 3152), but ruled against petitioner on the merits. On appeal the Court of Appeals agreed with the District Court as to jurisdiction but disagreed with it on the merits and granted the writ. 3 S.S.L.R. 3784. Shortly thereafter our decision in Schlanger v. Seamans, 401 U.S. 487, was announced. Thereupon the Court of Appeals granted a petition for rehearing and dismissed the action, holding that the District Court had no jurisdiction under the habeas corpus statues. 445 F. 2d 843. The case is here on a petition for certiorari, which we granted. We reverse the judgment below.
In Schlanger the serviceman–on active duty in the Air Force–was studying in Arizona on assignment from Ohio. There was no officer in Arizona who was his [p343] custodian or one in his chain of command, or one to whom he was to report. While the Habeas Corpus Act extends to those "in custody under or by color of the authority of the United States," 28 U.S.C. § 2241 (c)(1), we held in Schlanger that the presence of the "custodian" within the territorial jurisdiction of the District Court was a sine qua non. In Schlanger the only "custodian" of the serviceman was in Moody AFB, Georgia. While there were army officers in Arizona, there were none to whom the serviceman was reporting and none who were supervising his work there, though he was on active duty. Moreover, the serviceman in that case was in Arizona only temporarily for an educational project.
In the present case California is Strait's home. He was commissioned in California. Up to the controversy in the present case he was on reserve duty, never on active duty, and while he had gone east for graduate work in law, California had always been his home. Fort Ord in California was where his application for conscientious objector discharge was processed and where hearings were held. It was in California where he had had his only meaningful contact with the Army; and his superiors there recommended his discharge as a conscientious objector.
Thus, the contention in the dissent that we "abandon Schlanger" by the approach we take today is incorrect. Sergeant Schlanger was on permissive temporary duty. While his stay in Arizona was thus not charged to his leave time, it was primarily for his own benefit,[1] he paid [p344] his own expenses, and he was as much on his own as any serviceman on leave. We held in Schlanger that, while an active-duty serviceman in such a status might be in military "custody," see Donigian v. Laird, 308 F. Supp. 449 (Md. 1969), his custodian may not be deemed present wherever the serviceman has persuaded the service to let him go. The jurisdictional defect in Schlanger, however, was not merely the physical absence of the Commander of Moody AFB from the District of Arizona, but the total lack of formal contacts between Schlanger and the military in that district.
Strait's situation is far different. His nominal custodian, unlike Schlanger's, has enlisted the aid and directed the activities of armed forces personnel in California in his dealings with Strait. Indeed, in the course of Strait's enlistment, virtually every face-to-face contact between him and the military has taken place in California. In the face of this record, to say that Strait's custodian is amenable to process only in Indiana–or wherever the Army chooses to locate its recordkeeping center, see n. 3, infra–would be to exalt fiction over reality.
In a closely parallel case the Court of Appeals for the Second Circuit held that an unattached reserve officer who lived in New York and whose application for discharge as a conscientious objector was processed in New York could properly file for habeas corpus in New York, even though the commanding officer of the reservists was in Fort Benjamin Harrison, Indiana. Arlen v. Laird, 451 F. 2d 684. The court held that the only contacts the serviceman had had with his commanding officer were through the officers he dealt with in New York. Those contacts, it concluded, were sufficient to give the [p345] commanding officer "presence" in New York. It concluded:
"Quite unlike a commanding officer who is responsible for the day to day control of his subordinates, the commanding officer of the Center is the head of a basically administrative organization that merely keeps the records of unattached reservists. To give the commanding officer of the Center 'custody' of the thousands of reservists throughout the United States and to hold at the same time that the commanding officer is present for habeas corpus proposes only within one small geographic area is to ignore reality." Id., at 687.
We agree with that view. Strait's commanding officer is "present" in California through the officers in the hierarchy of the command who processed this serviceman's application for discharge.[2] To require him to go to Indiana where he never has been or assigned to be would entail needless expense and inconvenience. It "would result in a concentration of similar cases in the district in which the Reserve Officer Components Personnel Center is located." Donigian v. Laird, 308 F. Supp., at 453.[3] The concepts of "custody" and "custodian" are [p346] sufficiently broad to allow us to say that the commanding officer in Indiana, operating through officers in California in processing petitioner's claim, is in California for the limited purposes of habeas corpus jurisdiction.
We intimate no opinion on the merits of the controversy–whether petitioner is entitled to a discharge or whether by denying that relief the Army has acted in accordance with the prescribed procedures. We hold only that there is jurisdiction under 28 U.S.C. § 2241 (c)(1) for consideration of this habeas corpus petition and for decision on the merits.
Reversed.
Notes
edit- ↑ At the time Sergeant Schlanger received his assignment, Air Force Regulation 35-26 (Mar. 6, 1968) defined "permissive temporary duty" as "duty of a quasi-official nature performed at other than the permanent duty station, without costs to the Government for per diem and travel." So defined, primary difference between "leave" and "permissive temporary duty" appears to be that the latter status requires the serviceman to convince the military that his proposed activity, while away from his permanent duty station, would be of some direct or indirect benefit to the service.
- ↑ That such "presence" may suffice for personal jurisdiction is well settled, McGee v. Int'l Life Ins. Co., 355 U.S. 220; Int'l Shoe Co. v. Washington, 326 U.S. 310, and the concept is also not a novel one as regards habeas corpus jurisdiction. In Ex parte Endo, 323 U.S. 283, 307, we said that habeas corpus may issue "if a respondent who has custody of the prisoner is within reach of the court's process...." Strait's commanding officer is "present" in California through his contacts in that State; he is therefore "within reach" of the federal court in which Strait filed his petition. See Donigian v. Laird, 308 F. Supp. 449, 453; cf. United States ex rel. Armstrong v. Wheeler, 321 F. Supp. 471, 475.
- ↑ This concentration would be exacerbated in the extreme by the fact that the Reserve Components Personnel Center at Fort Benjamin Harrison, Indiana, has now been moved to St. Louis, Missouri, and has been there merged into the United States Army Reserve Components Personnel and Administration Center (RCPAC). RCPAC has recordkeeping and nominal administrative responsibility for approximately 2,000,000 servicemen, all unattached, inactive reservists such as petitioner.