The opinion of the court was delivered by: Campbell, District Judge.
Petitioner alleges that he was unlawfully inducted into the
Army of the United States, and that he is now unlawfully
restrained of his liberty by respondent, the Commanding Officer
of Fort Sheridan, Illinois. He seeks release through a writ of
habeas corpus. The parties stipulated that the facts contained in
petitioner's Selective Service System file are true, and the
cause was taken under advisement by the court.
I. Findings of Fact
The following sequence of events is disclosed by documents
contained in the files of the Selective Service System:
1. On December 28, 1950, petitioner answered and signed a
Selective Service Classification Questionnaire (Form 100),
wherein he stated that he had never been married, and that no
persons were wholly or partially dependent upon him for support.
He further stated that he had been treated by physicians for a
"nervous and anemia condition," and for a condition of
"palpitation — hot flushes."
2. On January 5, 1951, petitioner submitted to his Local Board
a sworn statement from a physician, who wrote that petitioner
"has considerable vasomotor instability as evidenced by
palpitation, hot flushes of face and neck accompanied by general
weakness. He, also, has a slight anemia."
3. On March 22, 1951, petitioner was placed in classification
4. On December 3, 1951, petitioner was ordered by Local Board
59 to report for an armed forces physical examination on December
5. On December 6, 1951, petitioner's mother submitted a sworn
statement from a physician to the Local Board. The physician
described defects in petitioner's vision, and stated: "I do not
recommend military duty for this patient."
6. On December 11, 1951, petitioner reported for the armed
forces physical examination. The examiners concluded that
petitioner was qualified for military service.
7. On December 13, 1951, petitioner submitted a sworn statement
from another physician, who wrote that petitioner "is an
extremely nervous individual, that all of his complaints such as
flushes and migraine headaches are all due to an extreme
8. On May 29, 1952, petitioner informed the Local Board that he
had recently been married.
9. On August 29, 1952, the Local Board ordered petitioner to
report for induction on September 15, 1952.
10. On September 2, 1952, petitioner wrote to his Local Board:
"I am writing this letter to appeal this induction
notice and to request a 3F classification for this
"Perhaps technically an induction notice is the
final word but I could not communicate with you any
sooner after I discovered my wife's condition.
"I beg of you gentlemen to reconsider my case. I
shall be happy to present you with the physician's
statement at any time you request."
11. On September 5, and again on September 8, 1952, petitioner
submitted statements from a physician attesting to the pregnancy
of petitioner's wife.
12. On September 4, 1952, petitioner's father wrote to the
Local Board, stating, in essence, that he would be unable to care
for petitioner's wife if petitioner were inducted, and that
petitioner's mother was not in good health. On the same date,
petitioner's father-in-law wrote to the Local Board, stating that
he was in poor health, and that he would be unable to care for
petitioner's wife if petitioner were inducted.
13. On September 11, 1952, the Local Board recommended "that
permission be granted from State Director to reopen this case in
order to fully consider conflicting evidence of wife [sic]
pregnancy in order that injustice may not be rendered to
registrant," and on September 12, 1952, the Local Board
transmitted petitioner's file to the State Director of Selective
Service at Chicago, Illinois. On the latter date, the time for
petitioner's induction into the armed forces was postponed until
October 13, 1952.
14. On September 19, 1952, and on a subsequent date, the Local
Board, acting under the direction of the State Director,
requested petitioner and his near relatives to submit "Statements
of Dependency," together with affidavits from persons who were
familiar with petitioner's financial situation. Petitioner
submitted the requested statements and affidavits shortly
15. On October 3, 1952, all such statements and affidavits
together with petitioner's complete Selective Service file, were
sent by the Local Board to the State Director.
16. On October 16, 1952, the State Director returned the file
to the Local Board, and stated:
"After reviewing this file * * * it is the decision
of this Headquarters that the local board's request
to reopen this case be denied.
"There is no conclusive evidence presented that
extreme hardship and privation would occur through
the registrant's induction, and in view of the
dependency allotment available the local board will
include this subject on their first induction call
after 31 October 1952."
17. On November 12, 1952, petitioner was ordered to report for
induction on November 28, 1952. Petitioner was inducted into the
Army on that date.
II. The Petition
From this series of stipulated facts, petitioner has extracted
certain events which he urges are material to the validity of his
induction. The petition recites these events, and alleges that,
when considered with certain regulations of the Selective Service
System, they show a violation of procedural and substantive
rights guaranteed to petitioner by the Fifth Amendment to the
The petition alleges that petitioner was married on May 8,
1952, subsequent to his classification in Class 1-A by the Local
Board, and that he notified the Local Board of his marriage on
May 27, 1952; that from the date of his marriage to the date of
his induction, petitioner maintained a bona fide family
relationship with his wife; that on September 5, 1952, a
physician found his wife to be pregnant, and that, on that date,
the physician issued a certificate to that effect; and that on
August 29, 1952, the Local Board mailed a notice of induction to
The petition then recites Selective Service Regulation 1625.3,
"(a) The local board shall reopen and consider anew
the classification of a registrant upon the written
request of the State Director of Selective Service or
the Director of Selective Service and upon receipt of
such request shall
immediately cancel any Order to Report for Induction
(SSS Form No. 252) which may have been issued to the
The petition next alleges that "on September 11, 1952 on the
written direction of the said Director of Selective Service
System of the State of Illinois the said Local Board reopened the
classification of the petitioner herein."
The petition then recites Selective Service Regulation 1625.14,
"When the local board has reopened the
classification of a registrant, it shall cancel any
Order to Report for Induction (SSS Form. No. 252)
which may have been issued to the registrant. If,
after the registrant's classification is reopened, he
is classified anew into a class available for
service, he shall be ordered to report for induction
in the usual manner."
It is then alleged that "by reason of the reopening of the
petitioner's classification on September 11, 1952," the order of
induction issued in August, 1952, was canceled and void.
In short, petitioner claims that his classification was
reopened by the Local Board in September, 1952, and that after
such reopening, his induction order was not canceled and he was
not reclassified, as required by the Regulations of the Selective
Service System. On the basis of this claim, petitioner asks that
a writ of habeas corpus be issued, directing his discharge from
the custody of the Armed Forces of the United States.
III. Administrative Remedies.
Petitioner concedes that he has not exhausted a remedy provided
by Army Regulations. The petition itself recites that:
"Petitioner is aware that he may be provided with
an opportunity through army channels to protect (sic)
his wrongful induction; that said procedure involves
the forwarding through his Commanding Officer to
Washington, the facts in his case after which they
will be referred to the Local Board, that in
petitioner's case such procedure in any event will be
fruitless in view of the interpretation placed by the
Local Board upon the regulations referred to herein."
The "opportunity" to which petitioner refers is Army Regulation
615-365 (32 C.F.R. § 582.3), which provides:
"(b) * * * The Secretary of the Army has delegated
to commanders the authority to order enlisted
personnel discharged or released from active duty for
the convenience of the Government for the following
"(1) To dispose of cases involving an individual's
claim that prior to induction he was denied a
procedural right as provided by the Selective Service
Act of 1948 and was, therefore, erroneously inducted.
All requests for discharge under this provision will
be forwarded to the officer exercising discharge
authority and by him to the State director of the
selective service system * * * for his
recommendation. The officer exercising discharge
authority will discharge the individual or retain him
in the service in accordance with the recommendation.
The Regulation has been amended from time to time, but the
amendments are not now material; the substantive provisions of
the regulation have not been altered.
It is well settled that habeas corpus is an extraordinary writ,
and that it may not be issued until all other means of relief
have been exhausted. The courts of this Circuit have often held,
for example, that an inmate of a state penal institution must
exhaust every available state remedy before a federal district
court may entertain his petition for habeas corpus. The Court of
Appeals has also held that a member of the armed forces under
sentence of court martial must exhaust all remedies provided in
the Articles of War prior to seeking relief in the federal
courts. United States ex rel. Giese v. Chamberlin, 7 Cir., 1950,
184 F.2d 404. The same result was reached in Gusik v. Schilder,
1950, 340 U.S. 128, 71 S.Ct. 149, 151, 95 L.Ed. 146, wherein the
Supreme Court commented:
"If an available procedure has not been employed to
rectify the alleged error which the federal court is
asked to correct, any interference by the federal
court may be wholly needless. The procedure
established to police the errors of the tribunal
whose judgment is challenged may be adequate for the
occasion. If it is, any friction between the federal
court and the military or state tribunal is saved. *
* * Such a principle of judicial administration is in
no sense a suspension of the writ of habeas corpus.
It is merely a deferment of resort to the writ until
other corrective procedures are shown to be futile."
Ordinarily, then, this court would be compelled to dismiss the
petition of an inductee who had not yet pursued a remedy provided
by Army Regulations.
However, the facts of this case, as revealed in petitioner's
Selective Service System file, demonstrate that it would be
useless to require petitioner to pursue the remedy provided in
the above-quoted Army Regulation. That regulation requires the
Army to forward petitioner's request for discharge to the State
Director of Selective Service "for his recommendation." And, the
regulation states, "The officer exercising discharge authority
will discharge the individual or retain him in the service in
accordance with the recommendation." Petitioner's file indicates
that the State Director has already reviewed this case, and that
the review was thorough and deliberate. The State Director has
finally denied the Local Board's request to reopen petitioner's
classification. Under these circumstances, this court will not
compel petitioner to pursue a remedy which can do no more than
bring his file before the State Director once again.
The court wishes to make clear, however, that in assuming
jurisdiction of this cause, it does not depart from the
principles announced in Gusik v. Schilder, supra, or United
States ex rel. Giese v. Chamberlin, supra. Moreover, the court
does not hold that all inductees may short-cut the remedy
provided by Army regulation; the court merely holds that the
peculiar facts of the instant case indicate that petitioner has
already traveled any avenue which could be opened by the
IV. Judicial Review.
Section 10(b)(3) of the Universal Military Training and
Service Act, 50 U.S.C.A.Appendix § 460(b)(3), provides for the
creation of civilian local boards within the Selective Service
System. That Section states that decisions of local boards with
respect to exemptions or deferments from military service "shall
be final, except where an appeal is authorized and is taken in
accordance with such rules and regulations as the President may
prescribe." The Section further provides for the creation of
civilian appeal boards, and states that the decisions of such
boards "shall be final * * * unless modified or changed by the
In Estep v. United States, 1946, 327 U.S. 114, 66 S.Ct. 423, 90
L.Ed. 567, the Court construed certain sections of the Selective
Training and Service Act of 1940 which are substantially similar
to Section 460(b)(3), supra. The Court held, 327 U.S. at page
122, 66 S.Ct. at page 427:
"The provision making the decisions of the local
boards `final' means to us that Congress chose not to
give administrative action under this Act the
customary scope of judicial review which obtains
under other statutes. It means that the courts are
not to weigh the evidence to determine whether the
classification made by the local boards was
justified. The decisions of the local boards made in
conformity with the regulations are final even though
they may be erroneous. The question of jurisdiction
of the local board is reached only if there is no
basis in fact for the classification which it gave
Many cases have followed Estep, and the scope of judicial review
announced therein has not been enlarged. In Cox v. United States,
, 453, 68 S.Ct. 115, 120, 92 L.Ed. 59, for
example, the Court held that "when a court finds a basis in the
file for the board's action that action
is conclusive. The question of the preponderance of evidence is
not for trial anew."
This court is therefore restricted to a determination of two
issues: (1) whether or not there is a basis in petitioner's
Selective Service System file to support his classification by
the Local Board in Class 1-A; and (2) whether or not the Local
Board acted in accordance with Selective Service System
regulations when it ordered petitioner to report for induction
subsequent to said classification.
V. Validity of the Induction.
A review of the documents contained in petitioner's Selective
Service System file, detailed in an earlier part of this
memorandum, demonstrates that the Local Board properly classified
petitioner in Class 1-A; indeed, petitioner does not and cannot
now contend that his first classification was erroneous.
Insofar as this petition is concerned, petitioner's objections
to the actions of the Local Board date from August 29, 1952, when
he was first ordered to report for induction. A few days after
that order was issued, petitioner informed his Local Board that
his wife was pregnant, and, shortly thereafter, he submitted a
physician's certificate attesting to the pregnancy. Selective
Service System Regulation 1622.30 provides:
"(a) In Class III-A shall be placed any registrant
who has a child or children with whom he maintains a
bona fide family relationship in their home.
"(c)(1) The term `child' as used in this section
shall include a legitimate or an illegitimate child
from the date of its conception. * * *
"(2) No registrant shall be placed in Class III-A
because he has a child which is not yet born, unless
prior to the time the local board mails him an order
to report for induction, there is filed with the
local board the certificate of a licensed physician
stating that the child has been conceived, the
probable date of its delivery, and the evidence upon
which his positive diagnosis of pregnancy is based."
Since petitioner did not file with the Local Board a physician's
certificate prior to the time he was ordered to report for
induction, the Local Board properly refused to change
Petitioner contends, however, that the actions of the Local
Board in September, 1952, constituted a "reopening" of his
classification, and, in view of the alleged reopening, the Local
Board was obliged by Regulation to cancel all prior orders to
report for induction. It is respondent's position that
petitioner's classification was never reopened.
The documents in petitioner's file indicate that on September
11, 1952, the Local Board recommended that the State Director of
Selective Service grant permission to reopen petitioner's
classification. Under the Regulations, the Local Board could have
reopened the classification on its own motion; clearly, this was
not done. Instead, the Local Board sought the advice of its
superior, the State Director. On October 16, 1952, he decided
that "the local board's request to reopen this case is denied."
It is therefore the opinion of this court that petitioner's
classification was not reopened, as that term is used in the
Selective Service System Regulations. Regulations 1625.1 et seq.
Accordingly, the order to report for induction which was issued
prior to the time the State Director entered petitioner's case
retained its validity, and petitioner was not entitled to a new
hearing and a new classification.
In the opinion of the court, petitioner was treated fairly and
properly throughout his association with the Local Board. The
contents of petitioner's file, outlined above, consist for the
most part of a barrage of letters from physicians and relatives,
each claiming that petitioner was not fit for military service.
Despite repeated attempts to avoid service, petitioner's case was
considered objectively and maturely, both by his Local Board and
by the State
Director. The court finds, viewing the file cumulatively, that
petitioner was in no way deprived of due process of law.
Petitioner was properly classified in Class 1-A, and was
inducted into the Armed Forces pursuant to a valid order to
report for induction. The order to show cause heretofore issued
is therefore discharged.
The petition is denied.
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