Cortright v. Resor

FRIENDLY, Chief Judge: In Orloff v. Willoughby, 345 U.S. 83, 94, 73 S.Ct. 534, 540, 97 L.Ed. 842 (1953), clearly the Supreme Court decision most closely in point, the Court stated it had “found no case where this Court has assumed to revise duty orders as to one lawfully in the [armed] service.” So far as has been shown by the research of counsel, that statement remained true, not only for the Supreme Court but for any other civilian court, with respect to duty orders not transgressing statute or regulations, until the order here under review. The limitations on the civilian courts in this respect were recently recognized by Judge Gesell in Sanders v. Westmoreland, 2 SSLR 3157 (D.D.C.1969). The order here is' sought to be justified on the ground that the Army’s transfer of Specialist Cortright from the 26th Army Band at Fort Wadsworth, New York, to the 62nd Army Band at Fort Bliss, Texas, violated the First Amendment. We do not say that a case could never arise where a transfer order could be invalidated by a civilian court on such a basis. But any such judicial intrusion into the area broadly confided by the Constitution to the President as commander-in-chief and his authorized subordinates must await a stronger case than this one. I. There is little dispute concerning the basic facts. After receiving an induction notice, David B. Cortright, recently graduated from college, enlisted in the Army in August 1968 for three years under an agreement that he be assigned to the 26th Army Band, Fort Wadsworth, N. Y., which was part of the First Army, for a minimum of one year. About half of the Band was composed of college graduates similarly re — 247 — cruited. After receiving basic training, Cortright joined the Band in November 1968, serving as a drum major and baritone player. The authorized complement of the Band was 64 until August 1969 when the Continental Army Command reduced it to 42, effective May 1970. The special missions of the Band, as set forth in Fort Hamilton Pamphlet No. 220-90, were: a. To promote and maintain the morale and esprit-de-corps of the troops by providing appropriate music for military ceremonies, concerts, entertainment and recreational activities. b. To assist in maintaining an effective community relations program through participation in suitable local events. c. To support the Army Recruiting Program by performing at senior high schools and colleges. In addition, as stated by Major General Ciceolella, the Chief of Staff of the First Army, members of the Band shared the Army’s general mission of being “able to fight and be[ing] able to defend vital installations and be[ing] responsive immediately to orders without any question.” On November 9, 1969, there appeared in the New York Times an advertisement signed by 1,866 active duty servicemen, including 39 from Fort Wads-worth, all but one of whom were members of the Band. The petition called for the immediate withdrawal of United States forces from Vietnam and urged members of the armed forces to participate in protest marches in Washington, D. C. and San Francisco. Cortright’s name appeared on the petition and he had initiated its circulation among the bandsmen. The Government does not dispute that this was an entirely proper exercise of the signers’ First Amendment rights “to petition the Government for a redress of grievances.” However, the Band’s leader, CW4 Shettle, a non-commissioned officer, took it upon himself to call a special formation of the Band, where he discussed the advertisement, warned that General Higgins, Commanding General of the Fort Hamilton Complex (which includes Fort Wads-worth) was aware of the signers’ activities, and advised them that under similar circumstances the 7th Army Symphony had been disbanded.1 There is no proof that Shettle’s self-styled “word to the wise” was directed or even authorized by General Higgins or any other high officer, although there is evidence that the General knew of Cortright’s role. In the spring of 1970 Cortright and others distributed a new protest petition among the members of the Band. This petition engendered a good deal of discussion. A meeting was called at the urging of those opposed to signing the petition; it was agreed that the petition would be published only if a majority approved. There is no suggestion that this action was stimulated by any responsible officer of the command. By mid-June 1970, 35 members had signed the new petition. At this point the new head of the Band, a non-commissioned officer, CW3 Patrick Flores, called into his office one Sicola, a Band member who had reservations about the petition, and advised against its publication. Flores also addressed the Band. While stating his belief that the petition was legal, he warned of possible re percus-sions if it were published. Again there is no evidence that this was anything more than Flores’ personal decision. After discussing the matter with other members and taking a poll, Cortright, who had assumed a position of leadership, told the civilian group sponsoring the petition not to publish the names of any Band members. In all likelihood this would have been the end of the matter but for an incident on July 4, 1970. As the Band was about to head a parade on Staten Island, five women — Cortright’s fiancée and the wives of four other Band members— — 248 — sought to march along with the Band, making it known that they were related to members. They were carrying signs, such as “Military Wives for Peace,” “Nix-On War,” and “Kill Poverty Not People.”2 The marshals refused to allow the women to march with the Band but did allow them to march behind the parade. The spectators and one parade participant reacted with hostility. Cortright’s fiancée was struck by a thrown object, a veteran hit another woman, and the crowd tore up the signs. Toward the end of the parade the women again walked beside the Band until Flores ordered them away. The incident was reported in the local press. This was too much for Flores. On July 8, after conferences with General Higgins, he announced ten changes in the Band’s duties, including extension to an eight-hour day, mandatory attendance at reveille, withdrawal of exemption from full police detail, and the termination of private music lessons during duty hours. It is not contended that any of these changes transgressed Army regulations; the Band apparently had been enjoying a favored position. However, as the district judge permissibly found, “Flores explained [to the Band] that the changes were instituted because of the men’s anti-war activities” and advised that if they did not end such action and accept the duty changes, others might follow. Cortright and 35 other members of the Band thereupon dispatched a letter to General Higgins, informing him of this and asking for rescission of the duty changes. The General took the matter with appropriate seriousness, and immediately instructed his Deputy, Colonel Merrick, other officers and Flores to conduct “an open door policy meeting” with the Band. Colonel Merrick told the Band that their anti-war activities were protected, that the new duty orders were not intended to be punitive, and that Flores should be reprimanded for characterizing the changes as punishment for the expression of dissent.3 He justified the changes, except a few which he apparently modified in a slight degree, on sound military grounds. At the conclusion of his talk, he invited questions. The only one was from Cortright, who asked if this constituted General Higgins’ official reply to his letter. Colonel Merrick said that it did unless the Band members were dissatisfied. There is nothing to indicate that any further representations were made to Colonel Merrick or General Higgins. On the other hand, the incident had its expectable repercussions with the Band. Although the new duties were ones which the Army could have ordered to be performed all along, many of the bandsmen resented the sudden changes. Morale declined and tension built up within the unit. One member of the Band swung at another. Another applied for a transfer because he “did not approve of what was going on in the band from both sides.” While the country could doubtless have survived continued dissension within the 26th Army Band, the fact remains that the unit was no longer geared to render optimum performance of its peacetime and potential wartime missions. Furthermore, there was no assurance that Cortright, Lovallo and others might not cause a repetition of something like the July 4 incident. Accordingly the matter was brought to the attention of Major General Ciecolella, Chief of Staff of the First Army at Fort Meade, Maryland, with the recommendation of Cortright’s immediate command that he be transferred. As earlier indi249 eated, prior to any of the incidents here recited, General Higgins had been under orders to reduce the strength of the Band to 42 by May 1970, but, as General Ciceolella was informed by his staff, the Band was still 10 to 12 over its authorized strength. Believing that what Cortright “was doing in the band was weakening its general morale, its discipline and effectiveness” and knowing that he was eligible for transfer,4 the General, on July 17, 1970, directed his transfer to the Fourth Army at Fort Bliss, Texas, which had requested additional bandsmen. He testified he “intended to accomplish the strengthening of the [26th Army] band and making it a better military unit, a unit that would accomplish its mission” — not to “punish” Cortright. Other transfers were made to bring the 26th Army Band down to its authorized strength. There is no evidence of discrimination against Cort-right’s followers either as to the fact or the place of transfer. Cortright has continued to be active in the peace movement since his arrival at Fort Bliss; there is no suggestion that he has been placed under the slightest restraint in this respect. II. On July 22, 1970, even before reporting to Fort Bliss, Cortright, pursuant to Art. 138 of the Uniform Code of Military Justice, 10 U.S.C. § 938,5 brought a complaint against the commanding officers who he believed had wronged him. The following day, he instituted this action in the District Court for the Eastern District of New York. The proceedings were temporarily held in abeyance pending completion of the military inquiry. Colonel Russell Bieber, a non-lawyer officer at Fort Meade, was assigned to investigate the Article 138 complaint. He obtained sworn statements from many of the persons already named and the opinion of the First Army information officer at Fort Meade that “if publicity of dissident trends in the 26th Army Band continues, its effectiveness as a First Army Community Relations element” would be generally decreased. Cortright was invited to supply additional information from his post in Texas; he added only that a sergeant from Fort Wadsworth had been sent to the airport to insure that he departed for Fort Bliss as scheduled, that he had been unaccountably prevented for a few days from signing in with the band unit at Fort Bliss upon his arrival, and that the Fort Bliss band unit was overstaffed in his specialty. Colonel Bieber reported that the July 8 changes in the Band’s duties “were made for the purpose of improving the military efficiency of that unit, and that such changes were in the best interest of the unit and the United States Army.” He also found that Cort-right’s transfer “was essential to the continued effective performance of the community relations mission of the 26th Army Band, and that such transfer was not punitive in nature.” Upon receiving Colonel Bieber’s report, the Judge Advocate General returned it for further investigation. Additional statements were obtained from 41 current and former members of the Band. Many refused to answer some questions on Fifth Amendment grounds. One told Colonel Bieber that he did not want to give any information because this litigation was pending. The colonel — 250 — told him that he had to answer and, allegedly, that he should not discuss his statements with anyone including his own lawyer. Colonel Bieber adhered to his recommendation that Cortright be informed that his Article 138 complaint was without merit. This time the Judge Advocate General, acting for the Secretary of the Army, approved, on November 26, 1970. Meanwhile five other Band members who had received transfer orders to Vietnam and Korea intervened in this action and secured stays of their transfers from October 17 to December 27, 1970.6 A considerable amount of discovery was had, the Army being directed to produce, among other items, all correspondence between Fort Hamilton and Fort Meade relating to the Band or its members, and the authorized and actual strengths -of all units, including those in Vietnam and Korea, to which members of the 26th Army Band had been transferred. Extensive depositions from the Article 138 investigation were taken as exhibits. After a two-day trial, the court ordered Cortright’s transfer rescinded. It sustained the five other transfers, holding that they “were apparently attributable solely to a proper desire to reduce the 26th Army Band to its authorized strength,” that the inter-venors were among the most eligible candidates for transfer overseas, and that those ordering the transfers “had not received any extraordinary communications regarding them.” Cortright and the intervenors were allowed to represent the 26th Army Band as a class with respect to threats against the Band, but not with respect to individual transfers. Finally the defendants were ordered to post on bulletin boards utilized by the Band copies of the Army’s current official guidelines regarding dissent, DOD Directive 1325.6, and a “one page statement of the facts and conclusions in this litigation” — a feat which, as the foregoing summary indicates, would not be easy of accomplishment if the conflicting considerations were to be fairly presented. The district court stayed its judgment pending an opportunity for the Government to appeal, and this court granted a further stay pending an expedited appeal. III. A considerable portion of the opinion of the district court, 325 F.Supp. 797 (E.D.N.Y.1971), was devoted to a discussion of its jurisdiction. The difficulties stemmed from the requirement of a $10,000 jurisdictional amount in “general” federal question actions under 28 U.S.C. § 1331, as distinguished from other sections that do not require a minimum monetary amount. The complaint contained a conclusory statement that “the amount in controversy exceeds the sum of $10,000 exclusive of costs and interests,” but made no specific allegations to support this. The judge discussed at some length whether the requirement of jurisdictional amount had fallen into desuetude in cases involving alleged deprivation of constitutional rights by federal officers, whether an allegation of interference with the exercise of free speech “almost, by definition” brings $10,000 into play, and whether, if not, the requirement was itself unconstitutional. We need not pass on any of this since in its brief here the Government does not challenge the judge’s alternative holding that jurisdiction was conferred by 28 U.S.C. § 1361, giving the district courts “original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff,” irrespective of the amount in controversy. It is true that the scope of review of official action under § 1361 may be more limited than when general federal question jurisdiction exists. See United States ex rel. Schonbrun v. Commanding Officer, 403 F.2d 371, 374-375 (2 Cir. 1968), cert. denied, 394 U.S. 929, 89 S.Ct. 1195, 22 — 251 — L.Ed.2d 460 (1969). However, our decision in this case would not be different if jurisdiction also lay under 28 U. S.C. § 1331. IV. We put aside at the outset one ground relied on to some extent by the district court but not strongly urged by appellees in this court. This is that Cortright’s transfer “violated the Army’s own regulations,” to wit, A.R. 614-6 para. 4(a). This provides: 4. General policies, PCS of all personnel. a. Department of the Army policy is that permanent change of station travel for all military personnel be authorized only on a military necessity basis and that all nonessential movements be eliminated. Of continuing importance to the Department of the Army is the need to reduce both the numbers and frequency of movements of military personnel thereby achieving greater continuity and stabilization with a resultant savings of travel funds. Apart from the point, apparently not considered by the district court, that, under A.R. 614-6, para. 2(a), the regulation does not “apply in times of war or national emergency,” the latter of which has existed since President Truman’s Proclamation No. 2914, issued December 16, 1950, 64 Stat. A454, not every violation of a military regulation gives a serviceman a justiciable claim. The basis for and the limits of the principle whereby civilian courts will require the military to follow procedures, which the latter has itself adopted, are exemplified in such decisions of this court as Smith v. Resor, 406 F.2d 141, 145-147 (2 Cir. 1969); Nixon v. Secretary of the Navy, 422 F.2d 934 (2 Cir. 1970); Feliciano v. Laird, 426 F.2d 424, 429 (2 Cir. 1970); and United States ex rel. Donham v. Resor, 436 F.2d 751 (2 Cir. 1971). The regulations, the breach of which led to our asserting intervene in those cases, were regulations developed for the protection of servicemen, not regulations designed simply to promote the efficient functioning of the military establishment. The second sentence of the regulation here in question, not quoted by the district judge, makes it clear that the purpose of the regulation was to secure economy — not to provide a serviceman eligible for transfer under his contract of enlistment and the applicable regulations with a ticket to the courthouse to challenge any transfer that was distasteful to him. The First Amendment elements of the case seem considerably less portentous to us than they did to the district judge. Appropriate concessions by both sides have narrowed the issue to one of relatively small scope. The Government does not contend that, by joining the armed forces, a citizen surrenders his First Amendment rights. To the contrary, DOD Directive 1325.6, entitled “Guidelines for Handling Dissident and Protest Activities Among Members of the Armed Forces,” which was issued prior to any of the incidents here in question and which the judge approved to the extent of directing its public display at Fort Wadsworth, expressly recognizes that “the service member’s right of expression should be preserved to the maximum extent possible, consistent with good order and discipline and the national security.” Ap-pellees can scarcely dispute the reasonableness of the final clause of the sentence just quoted, or of the next two reading: “On the other hand, no Commander should be indifferent to conduct which, if allowed to proceed unchecked, would destroy the effectiveness of his unit. The proper balancing of these interests will depend largely upon the calm and prudent judgment of the responsible Commander.” In addition, DOD Directive 1344.10, entitled “Political Activities' by Members of the Armed Forces,” expressly sanctions such activities as signing a petition for specific legislative action or writing a letter to the editor of a — 252 — newspaper expressing the member’s personal views concerning public issues. The appellees, for their part, do not assert that a soldier’s rights of free expression are precisely the same as a civilian’s. It could not be seriously contended, for example, that the First Amendment entitled Cortright, while blowing his baritone in the Fourth of July parade, to carry a sign applying the currently popular four letter word to the Declaration of Independence. Neither did it entitle him to arrange to have his fiancée march by his side and carry such a sign. So ardent an advocate of a broad reading of the First Amendment as Professor Thomas Emerson has written, “To a certain extent, at least, the military sector of a society must function outside the realm of democratic principles, including the principle of freedom of expression” and “members of the armed forces, at least when operating in that capacity, can be restricted in their right to open discussion.” Toward a General Theory of the First Amendment, 72 Yale L.J. 877, 935-36 (1963). See also Kester, Soldiers Who Insult the President; An Uneasy Look at Article 88 of the Uniform Code of Military Justice, 81 Harv.L.Rev. 1697, 1740-56 (1968); Dash v. Commanding General, 307 F.Supp. 849, 852 (D.S.C. 1969) (Russell, J.), aff’d 429 F.2d 427 (4 Cir. 1970), cert. denied 401 U.S. 981, 91 S.Ct. 1192, 28 L.Ed.2d 333 (1971). We see no basis for concluding that if Cortright and his like-minded friends had limited themselves to signing peace petitions or engaging in protest marches while on leave, the Army command would have interfered in any way. The Secretary of the Army and General Higgins cannot be held responsible for the remarks of CW4 Shettle after the November 1969 petition and their effect on the attempt to secure signatures for a second petition in the spring of 1970 in the absence of evidence that someone in a command position had stimulated them. What triggered the difficulties here was the prearranged participation of Cortright’s fiancee and the four wives in the July 4 parade.7 While these ladies had every right to engage in a protest march of their own and carry such signs as they wished, it does not follow that Band members were entitled to arrange for or to sanction their accompanying the Band when it was performing its mission of leading a Fourth of July parade. Cortright must have known that such conduct would be offensive to many participants in the parade, and to at least some spectators and fellow members of the Band and would thus be likely to provoke the disruptions that it did. It is true enough that a private citizen may not constitutionally be convicted under a general breach of the peace statute for making a speech simply because this has “stirred people to anger, invited public dispute, or brought about a condition of unrest.” Terminiello v. Chicago, 337 U.S. 1, 5, 69 S.Ct. 894, 896, 93 L.Ed. 1131 (1949).8 — 253 — But this is precisely the area where a soldier, when wearing his uniform and performing a military assignment with his unit, may be subjected to discipline for contributing to disorder, to which a civilian could not. Surely, when CW3 Flores brought the matter of the 4th of July parade to General Higgins’ attention, the General was not required to shrug it off and do nothing to prevent its repetition. If after properly investigating the facts and finding that the five Band members had arranged for or sanctioned what their ladies had done, he had then and there transferred Cort-right and the four husbands to different stations as an appropriate method for preventing similar incidents in the future, we would perceive no unconstitutional impairment of their rights.9 One of the missions of the Band, into which Cortright had voluntarily enlisted, was “to assist in maintaining an effective community relations program through participation in suitable local events.” This had been thwarted by the women’s endeavor to march with the Band on July 4, and General Higgins was entitled to take suitable measures to avoid a similar performance in the future. Instead of taking action directed specifically at the five men, the General, endeavoring to exercise the “calm and prudent judgment” adjured by the Defense Department’s directive, took the course of requiring all members of the Band to observe duty regulations from which previously they had been informally exempted. While it would be naive to suppose he did not realize that the Band members would regard this as causally related to the July 4 incident, doubtless his hope was that this measure would restore order and prevent a repetition of unseemly conduct, which he might have regarded as less provocative action than disciplining the five men as such. That, in substance, was what Colonel Merrick endeavored to explain. Although the order seems actually to have accentuated dissension rather than diminished it, this was at most a fault in judgment in an effort to avoid what the General might have thought would be regarded as more drastic measures. When its failure became apparent, the General recommended that, in order to restore the effectiveness of the unit, Cortright should be transferred to another band in line with the program of personnel reduction in the unit that had been ordered long before any incidents occurred. When General Ciccolella accepted that recommendation, conced-edly in a good faith belief that he was acting for the good of the Army, the matter should have been ended so far as the civilian courts are concerned.10 In Orloff v. Willoughby, supra, 345 U.S. at 93-94, 73 S.Ct. at 540 (1953), the Court, after noting that “judges are not given the task of running the Army,” stated that “the responsibility for setting up channels through which such grievances can be considered and fairly settled rests upon the Congress and upon the President of the United States and his subordinates.” This has been done in Art. 138 of the Uniform Code of Military Justice. We do not sit as a super-Judge Advocate General to review determinations under that Article, see 5 U.S.C. § 701(b) (1) (F). Whether Cortright has any remedies in the Court of Military Justice is not our concern. We began by referring to Orloff v. Willoughby, supra, 345 U.S. 83, 73 S.Ct. 534, 97 L.Ed. 842, as the Supreme Court — 254 — decision most closely in point, and we now return to it. Orloff had been drafted under a special statute authorizing conscription of certain “medical and allied specialists categories,” beyond the age at which military liability ceased for those not within such categories. He was denied the commission — which otherwise would clearly have been granted him — because of his refusal to execute a loyalty certificate and his lawful exercise of his Fifth Amendment right not to answer questions whether he had belonged to organizations on the Attorney General’s list. The Court refused to order that he be either commissioned or discharged, and also declined to review — on habeas corpus — his claim that the Army was improperly restricting his duty assignments within the generalized medical area. The Court reasoned, at 345 U.S. 94, 73 S.Ct. at 540, that: The military constitutes a specialized community governed by a separate discipline from that of the civilian. Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army be scrupulous not to intervene in judicial matters. If civilian courts are not to interfere with the Army’s refusal of a commission or desired duty orders when the refusal represents a reaction to the soldier’s exercise of his Fifth Amendment rights, then they have even less basis for interfering with a transfer which comes in response to action which, whatever Cort-right may have thought, went beyond rights accorded him by the First.11 Although the district court regarded Orloff as both the “peak of this reluctance to intervene” and “the beginning of a decline,” we find scant evidence of any decline in the precise field here at issue. Indeed, the student comment to which the judge pointed as showing a decline states: When it is clear that the military has not exceeded its statutory authority — as by assigning an individual an entirely improper general field — its exercise of discretion within the purview of such authority — as in the determination of particular duty assignments — is not reviewable. Note, God, the Army, and Judicial Review: The In-Service Conscientious Objector, 56 Calif.L.Rev. 379, 429 (1968) (emphasis is original; footnote omitted). Also Chief Justice Warren, in a lecture delivered nearly a decade after the Orloff decision, reiterated that “So far as the relationship of the military to its own personnel is concerned, the basic attitude of the Court has been that the latter’s jurisdiction is most limited.” The Bill of Rights and the Military, 37 N.Y.U.L.Rev. 181, 186 (1962). Appellees assert that rescinding Cortright’s transfer and the other relief directed by the district judge were needed to avoid a “chilling” of the right of Cortright and others to protest against the war in Vietnam, although the transfer to Texas concededly has not chilled Cortright. But any such order would have to rest on a conclusion of illegality in Cortright’s transfer, and such a conclusion would not be warranted. While the portion of the order directing display of the DOD Directive on Dissent would not seem practically objectionable, it also falls, under the long recognized principle “that a court of equity will not enjoin one from doing what he is not attempting and does not intend to do.” New Standard Publishing Co. v. FTC, 194 F.2d 181, 183 (4 Cir. 1952). As stated at the outset, we are far from holding that under no circumstances could a civilian court interfere — 255 — with a transfer order or prescribe other relief if that were needed to prevent abridgement of a soldier’s First Amendment rights. We hold only that the Army has a large scope in striking a proper balance between servicemen’s assertions of the right of protest and the maintenance of the effectiveness of military units to perform their assigned tasks — even such a relatively unimportant one as a military band’s leading a Fourth of July parade, and that its actions here did not overstep these bounds. Any other holding would stimulate “the flood of unmeritorious applications that might be loosed by such interference with the military’s exercise of discretion and the effect of the delays caused by these in the efficient administration of personnel who have voluntarily become part of the armed forces,” of which we spoke in Schonbrun, supra, 403 F.2d at 375. Judicial interference with transfer orders valid on their face must await a stronger showing than Cortright’s. The order is reversed, with instructions to dismiss the complaint. Footnotes [1] The record sheds no light on whether this in fact occurred. [2] Cortright testified that one or two days before the parade, another Band member, Specialist Lovallo, told him “that his wife and various other wives of members of the band intended to have a small demonstration against the war in Vietnam at this parade”; that on the day before the parade Lovallo told him to tell his fiancée to “get involved in this parade”; and that he did. [3] It is not disputed that General Higgins administered such a reprimand to Flores. [4] He had already been at Fort Wadsworth nearly a year beyond the period stated in his agreement and had little more than a year to serve. [5] “Any member of the armed forces who believes himself wronged by his commanding officer, and who, upon due application to that commanding officer, is refused redress, may complain to any superior commissioned officer, who shall forward the complaint to the officer exercising general court-martial jurisdiction over the officer against whom it is made. The officer exercising general court-martial jurisdiction shall examine into the complaint and take proper measures for redressing the wrong complained of; and he shall, as soon as possible, send to the Secretary concerned a true statement of that complaint, with the proceedings had thereon.” [6] Another intervenor withdrew when he received a transfer to Germany. [7] Insofar as the district court may be taken to have found otherwise and to have held that the Army’s actions were directed at Cortright’s having signed the November 1969 and circulated the spring of 1970 petition, we would be obliged to regard any such findings as clearly erroneous. [8] On the other hand, the Court has upheld a conviction of civilians for holding a religious meeting in a public park without a permit, under an ordinance construed as merely calling “for the adjustment of the unrestrained exercise of religions with the reasonable comfort and convenience of the whole city,” saying: “The principles of the First Amendment are not to be treated as a promise that everyone with opinions or beliefs to express may gather around him at any public place and at any time a group for discussion or instruction.” Poulos v. New Hampshire, 345 U.S. 395, 405, 73 S.Ct. 760, 766, 97 L.Ed. 1105 (1953). Relying on that decision, we have sustained a regulation promulgated by what was considered to be a state university for the purposes at issue, for the discipline of students who had disrupted a ceremony for the conferring of awards on members of an ROTC unit. Powe v. Miles, 407 F.2d 73, 85 (2 Cir. 1968). [9] While Cortright now claims he did not know just what the women would do, the Army would not have been required to credit this. Moreover, a commander could legitimately determine that if soldiers were telling their present and prospective wives to “get involved” in the parade, they were bound to tell them not to “get involved” by seeking to march with the Band — action that would inevitably cause other members of the Band, participants in the parade, and spectators, to regard such involvement as planned by Band members. [10] The lack of any vindictiveness on the part of General Ciccolella is demonstrated by his transfer of Cortright to another safe berth in the United States rather than to Vietnam or even to Korea. [11] While there are passages in the Orloff opinion, 345 U.S. at 87-88, 73 S.Ct. 534, suggesting that the Court might have acted if the Army had refused to give Orloff duties within the medical field, this cannot assist Cortright. The Army respected his contract for enlistment only in a military hand.