Specific Performance of Enlistment Contracts

AuthorUdi Sagi
PositionIsrael Defense Force (IDF)
I. Introduction
In a famous Monty Python sketch a Regimental Sergeant Major yells
at a group of soldiers: “Now! Today we’re going to do marching up and
down the square. That is unless any of you got anything better to do?
Well, anyone got anything they’d rather be doing than marching up and
down the square?”1 When a soldier puts his hand up, the Sergeant Major
asks him contemptuously, “Yes? Atkinson? What would you rather be
doing, Atkinson?”2 Atkinson replies, “Well to be quite honest, Sarge, I’d
rather be at home with the wife and kids.”3 Surprisingly, after making
sure he heard correctly, the Sergeant Major replies: “Right, off you go.”4
The sketch is surprising and funny because, as most know, a soldier
cannot leave his position or military service whenever he sees fit.5 This
common knowledge forms a fundamental perception of what it means to
be in the military: Soldiers cannot just quit, no matter how unsavory or
hazardous the task. This article examines the military service obligation
from the perspective of the enlistment contract and the legal rules that
apply to its enforcement, in particular, whether the enlistment contract is
enforceable against servicemembers who seek to breach it and leave
military service.
Israel Defense Force (IDF). Presently assigned as head of Security and Criminal Law
Section, Office of the Legal Adviser to Judea and Samaria Division, IDF; LL.M., 2010,
The Judge Advocate General’s School, U.S. Army, Charlottesville, Virginia; M.B.A.,
2005, Tel-Aviv University, The Faculty of Management, Israel; L.L.B., 1999, Tel-Aviv
University, Faculty of Law, Israel. Previous assignments include Legal Adviser to the
Personnel Branch, IDF 2005–2009; Deputy Legal Adviser to the Surgeon General’s
Corps, 2003–2005; Legal Adviser to the Personnel Planning and Management Division,
Personnel Branch, IDF, 2000–2003. Member of the Israel Bar Association. This article
was submitted in partial completion of the Master of Laws requirements of the 58th
Judge Advocate Officer Graduate Course.
1 THE MEANING OF LIFE (Celandine Films 1983).
2 Id.
3 Id.
4 Id.
5 See infra Part II.
Since the abolishment of the draft in the United States during the
1970s, the enlistment contract has been the main vehicle for individuals
to join the Armed Forces.6 Throughout the decades, courts have
addressed the legal aspects of the enlistment contract.7 Today, courts
widely agree to view the enlistment contract as an ordinary contract and,
consequently, resolve enlistment cases using normal contract law
principles.8 However, as demonstrated in this article, this view poses a
legal question that has not yet been addressed by the courts or scholars.
For the last 150 years, courts of equity have followed the well-
established common law rule against specific performance in case of a
breach of a contract for personal services.9 A personal services contract
is defined as a contract in which one of the sides agrees to render to the
other side services that are “continuous [and] involve skill, personal
labor, and cultivated judgment.”10
Enlistment contracts are examples of contracts for personal
services.11 Thus, by entering into an enlistment contract, the individual
takes upon himself the obligations of a personal services contract, which
cannot be specifically enforced under normal contract principles. If
accurate, the Armed Forces are not legally allowed to enforce enlistment
contracts against servicemembers who decide to breach their contracts
before the end of their periods. Military regulations, such as Army
6 Neil J. Dilloff, A Contractual Analysis of the Military Enlistment, 8 U. RICH. L. REV.
121 (1974).
7 See, e.g., Antonuk v. United States, 445 F.2d 592 (6th Cir. 1971); Brown v. Dunleavy,
722 F. Supp. 1343, 1349 (E.D. Va. 1989). As can be deduced from the cases cited in this
article, courts usually address three different kinds of enlistment contract issues:
servicemembers seeking discharge from military service based on their enlistment
contracts; servicemembers seeking to avoid certain duties or positions based on their
enlistment contracts; and servicemembers facing court-martial claiming not to be subject
to the Uniform Code of Military Justice (UCMJ) because they were not legally enlisted at
the time of the alleged offense. This article addresses each of these arguments.
8 Santiago v. Rumsfeld, 407 F.3d 1018 (9th Cir. 2005); Gengler v. United States, 453 F.
Supp. 2d 1217 (E.D. Cal. 2006); Qualls v. Rumsfeld, 357 F. Supp. 2d 274 (D.D.C. 2005).
This rule does not apply to servicemembers’ entitlement to pay and allowances, which is
“determined by reference to the statutes and regulations . . . rather than to ordinary
contract principles.” United States v. Larionoff, 431 U.S. 864, 869 (1977). See infra Part
III for a detailed analysis of the contractual nature of the enlistment contract.
9 RESTATEMENT (SECOND) OF CONTRACTS § 367 (1981) (current through Aug. 2009). See
also Lumley v. Wagner, (1852) 42 Eng. Rep. 687 (Ch.).
10 Rutland Marble Co. v. Ripley, 77 U.S. 339, 358 (1870).
11 See Baldwin v. Cram, 522 F.2d 910 n.4 (2d Cir. 1975).
Regulation (AR) 635-200,12 which dictate that enlisted persons can only
be discharged in specific circumstances, not whenever they choose to
leave, would be unenforceable under this contractual approach. Taken to
the extreme, it would likewise be illegal to force a servicemember who
wishes to turn his back in the midst of a battle to stay and fight with his
fellow servicemembers.13
Surprisingly, in their application of legal precedents, courts have
largely failed to consider how the traditional prohibition against specific
performance of personal services contracts affects enlistment contracts
enforcement. If the doctrine is still valid and applies to military service,
it could have devastating consequences for Congress’s ability to “raise
and support armies.”14 While addressing enlistment contracts, some
courts15 and scholars16 have assumed that enlistment contracts are
enforceable despite being personal services contracts; however, their
assumptions have lacked actual legal analysis.17 This article provides a
detailed, and much needed, explanation for why there is no place for the
SEPARATIONS (17 Dec. 2009) (RAR, 27 Apr. 2010) [hereinafter AR 635-200].
13 A behavior that constitutes a capital offense. UCMJ art. 99 (2008).
14 U.S. CONST. art. I, § 8, cl. 12.
15 Out of hundreds of cases concerning the enlistment contract, a court directly referred to
this question only once, stating that “enlistment contract, the kind of contract which as
regards forms of service other than the military is not specifically enforceable by an
affirmative decree . . . .” Baldwin, 522 F.2d at 910 n.4.
16 Dilloff, supra note 6, at 147–48, states that
An enlistment contract is a personal services or employment contract.
It is almost universally held that a contract for personal services will
not be specifically enforced, either by affirmative decree or by an
injunction. The general rule is apparently not applicable to
enlistment contracts, since the courts have, in effect, ordered specific
performance in the many different situations which have already been
discussed. . . . No cases have expressly discussed the question of
making a volunteer specifically perform, but the basic rationale
which has precluded any consideration of this contractual issue has
been the all-encompassing supervening power of the Government in
dealing with its military forces. Until this mantle of protection can be
completely removed from enlistment agreement negotiations, it is
unlikely that the issue will arise.
Id. (footnotes omitted); see also Captain David A. Schlueter, The Enlistment Contract: A
Uniform Approach, 77 MIL. L. REV. 1 n.138 (1977) (“Although courts hesitate to
specifically enforce personal services contracts, the military enlistment contract seems to
be the exception.”) (citing Dilloff, supra note 6).
17 See supra notes 15–16.

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