The opinion of the court was delivered by: Bua, District Judge.
This is a suit seeking to enjoin the defendants and their
agents from enforcing an "enlistment contract" entered into
between plaintiff and the Air Force in 1969. The plaintiff also
seeks to enjoin the defendants from enforcing an "extended
active duty order" issued pursuant to the enlistment contract.
The injunction is sought pending administrative review of
plaintiff's challenge to the validity of his contract with the
Air Force. The case comes before the court on plaintiff's
motion for a preliminary injunction pursuant to Rule 65, Fed.R.
Civ.P., and defendants' motion to dismiss for failure to
exhaust administrative remedies. A hearing was held on July 1,
1980 at which the plaintiff testified. This opinion will serve
as the court's findings of fact and conclusions of law.
The issues dispositive of the motions are clear. In attempting
to demonstrate a probability of success on the merits of his
claim that his enlistment contract is unenforceable, voidable,
and/or rescindable, the plaintiff has presented three
First, plaintiff claims that because he was nineteen years old
when he executed his enlistment contract, the contract is
voidable at his option because he lacked the capacity to
contract in 1969. The evidence clearly shows that although he
was nineteen years of age at the time of contracting, he later
accepted a commission in the Air Force as a second lieutenant.
He was 21 years of age at the time of accepting his commission.
He later accepted promotion to first lieutenant. It is
elementary that while a minor may avoid his contracts, he must
do so within a reasonable time after reaching his majority.
Such a contract is voidable and not void, therefore, it may be
ratified by the minor after he reaches his majority. The
evidence clearly establishes that plaintiff did indeed ratify
the contract by accepting his commission and his promotion
pursuant thereto. Moreover, the plaintiff at all times until
March 20, 1980, treated his enlistment contract as valid and
enforceable. In fact, plaintiff thrice applied to the Air Force
for "educational delays" deferring the start of his active duty
commitment. He received permission to delay his active duty
starting date on two occasions pursuant to these requests. The
second deferral notice was received by plaintiff in 1975, and
notified him that he would be called for active duty at the end
of his residency in general surgery, on or about July 1, 1980.
We think this evidence establishes plaintiff's ratification of
his enlistment contract.*fn1
The plaintiff's thirteenth amendment claim that enforcement of
an order requiring him to report for active duty would
constitute involuntary servitude, is not well taken. While it
is true that enlistment in the armed forces pursuant to a
contract differs from involuntary induction into the armed
forces, we think that no distinction exists for purposes of
applying the thirteenth amendment to the facts of this case.
The plaintiff has cited no authority substantiating his claim
that he may not be subject to sanctions for disobeying this
order issued pursuant to his enlistment contract. Moreover, we
think that the many cases rejecting the thirteenth amendment
claims of inductees require the court to reject this argument.
United States v. Fallon, 407 F.2d 621, 623 (7th Cir. 1969);
United States v. Holmes, 387 F.2d 781, 784 (7th Cir. 1968);
see Hall v. United States, 437 F.2d 1063 (7th Cir. 1971).
Finally, the plaintiff contends that his contract is
rescindable because he was induced to enter into it by the
fraudulent misrepresentations of the Air Force and its agents.
In this regard we accept plaintiff's testimony that one of the
major motivating factors that led to his execution of the
enlistment contract, was the existence of an Air Force program
known as the Senior Medical Student Program. This program
allows a senior in medical school to be placed on extended
active duty with full pay and allowances the first day of his
matriculation as a senior. It is uncontradicted that the Air
Force never guaranteed or promised in any way that plaintiff
would be accepted in the Senior Medical Student Program.
Moreover, it appears affirmatively from the testimony presented
by the plaintiff that he read and understood the contract he
signed in 1969. That contract contains the following clear and
unambiguous language: "I have had this contract fully explained
to me, I understand it, and certify that no promise of any kind
has been made to me concerning assignment to duty, geographical
area, schooling, special programs, assignment of government
quarters, or transportation of dependents except as indicated
___." The plaintiff specifically acknowledged at the hearing
that he had read and understood this language.
At the time that plaintiff entered into this contract he had
not graduated from college, had not been admitted to medical
school and had received informational brochures that fully
explained the conditions for entry into the Senior Medical
Student Program, which he had read and understood. The only
oral statement made to the plaintiff which did not appear in
the official literature describing the program was to the
effect that if plaintiff applied for the program with an ROTC
background, he would have a better chance of being accepted
because the Air Force "looks favorably on its own." We do not
understand how this evidence creates even the slightest
inference that the Air Force made material misrepresentations
of fact in order to induce the plaintiff to enter into the
enlistment contract, and thus, we fail to see how plaintiff has
demonstrated even a possibility of prevailing on the merits of
After having viewed the witness on the stand and reviewed the
documentary evidence and having heard plaintiff's testimony, it
is apparent that the plaintiff is and was at the time of
entering into the challenged enlistment contract a highly
intelligent, ambitious, and single minded individual, who fully
understood the terms of his contract, who was not misled in any
way by any oral statements of Air Force agents, and who did not
rely on said statements. The plaintiff in 1969 had a
long-standing desire to make a career for himself as a doctor
in the Air Force, and it is simply incredible to assert that a
statement to plaintiff in 1975, to the effect that plaintiff
should not bother to apply to the program because it was being
phased out, constitutes a basis for rescinding the contract
entered into in 1969. Plaintiff was on notice as early as 1964
of the proper method for applying for the program, for in that
year he received an Air Force informational brochure describing
the program, its eligibility requirements, and the special
procedures that had to be followed in order to apply for it.
Plaintiff, in fact never applied for the program.
In conclusion, there is absolutely no evidence that plaintiff
was either promised admittance into the program, or that the
Air Force ever made any untrue or misleading statements in
order to induce plaintiff's execution of the enlistment
contract. Since the plaintiff has failed to persuade this court
of the likelihood of prevailing on his claim that the contract
and order are unenforceable he is not entitled to a preliminary
injunction pending the administrative proceedings before the
Air Force Board for Correction of Military Records,
32 C.F.R. § 865.1 et seq. The court will, therefore, order that
plaintiff's complaint be dismissed without prejudice for
failure to exhaust administrative remedies. Diliberti v.
Brown, 583 F.2d 950, 952 (7th Cir. 1978) ("Assuming that the
exhaustion requirement would be relaxed in the case of a
`clear' constitutional violation, plaintiff's claim is less
The plaintiff's motion for preliminary injunction is denied and
the defendant's motion to dismiss for failure to exhaust
administrative remedies is granted. The complaint is dismissed