(concurring) :
I agree with the majority opinion as far as it goes, but I do not think it goes far enough. The majority does not reach the question whether a reservist must be advised of his right to make a hardship claim before his failure to do so may be regarded as a waiver. I would hold that such notification is required.
The Government argues that under the applicable Marine Corps regulation the reservist must affirmatively claim hardship and his commanding officer is not required to initiate, sua sponte, an investigation of the individual’s personal circumstances. But in requiring that such a claim be made, the regulation appears to go further than the statute (10 U.S.C. § 673a) and Executive Order on which it is based. Neither the statute nor the Executive Order specifically requires the reservist to “claim” hardship, although both impose on the Marine Corps a duty to give “appropriate” consideration to the possibility of hardship.1 While it may be that the regulation, in placing on the reservist the burden of making the claim, is both sensible and consistent with the statute and Executive Order, a necessary corollary is that the reservist must be informed of his right to make such a claim. Appellant’s attorney observed at oral argument that even criminal suspects are required to be informed of their legal rights. Though the analogy is obviously not exact, there is force to it. More exact and more forceful, however, is a comparison to the treatment accorded Selective Service registrants, who are routinely notified of their right to request a hardship or other deferment.2 I see no persuasive reason why a Marine reservist should not be entitled to as much.
As for the specific facts here, the invitation in the November 2, 1971 letter to appellant to make a statement was certainly not adequate notice of his right to claim hardship. It was a reasonable assumption that the statement referred to was to be in explanation of his prior conduct. Moreover, Captain Cormier’s question to Sledjeski at the interview— “Is there anything else you can tell me that would make this look other than it is ?” — was very clearly addressed only to the matter of exculpation. Finally, the Company Order cited in the majority opinion makes no reference to a right to claim hardship when threatened with involuntary activation. It merely describes the standards and procedures for excused absences from drill and advises reservists that they must maintain “satisfactory participation” in scheduled drills or face involuntary activation. Although the order states that “problems” should be made known to platoon or company leaders, this clearly refers to difficulties in attending the drills, not in submitting to activation.3
Admittedly, Sledjeski cuts a less than heroic figure, and his “hardship” may perhaps have fallen short of that required. But such a claim would not *1152have been frivolous. Moreover, the procedures involved here are also not worthy of praise, and by holding them to be improper we may ultimately benefit more deserving reservists. See McSweeney v. United States, 338 F.Supp. 350 (N.D.Ohio 1971) (enjoining Marine activation because Commanding Officer did not seek information relevant to hardship and was therefore unaware of relevant hardship circumstances); cf. Winters v. United States, 281 F.Supp. 289, 299-300 (E.D.N.Y.), aff’d, 390 F.2d 879 (2d Cir.) (per curiam), cert. denied, 393 U.S. 896, 89 S.Ct. 188, 21 L.Ed.2d 177 (1968) (upholding Marine activation despite failure to notify reservist of right to claim hardship, but emphasizing that record showed there would have been absolutely no basis for such a claim if one had been made).
At the very least, I would hold that if a reservist must claim hardship when faced with involuntary activation, he must also be clearly advised of his right to make the claim. However, since this appellant is now aware of that right and is to be allowed to exercise it, I concur in the majority disposition.
. The statute provides :
To achieve fair treatment among members of the Ready Reserve who are being considered for active duty under this section, appropriate consideration shall be given to—
(1) family responsibilities; and
(2) employment necessary to maintain the national health, safety, or interest.
10 U.S.C. § 673a (c). The Executive Order merely incorporates the text of the foregoing provision. Executive Order No. 11366, 32 Fed.Reg. 11411 (1967).
. See Selective Service System Registration Questionnaire, SSLR 2156 :3.
. In view of the irrelevance of the Company Order to the issue at hand, it is unnecessary to decide whether posting and reading an order that actually mentioned the right to claim hardship would be sufficient notice to a reservist who is subsequently considered for involuntary activation.