The opinion of the court was delivered by: Decker, District Judge.
The petitioner in this action was inducted into the Armed
Forces of the United States on February 2, 1970. He immediately
filed this petition for writ of habeas corpus, claiming that the
actions of his local Selective Service Board contravened
pertinent statutes and regulations and denied him due process of
law, thus entitling him to release. An amended petition was
subsequently filed, and respondent filed a return to the rule to
show cause in the form of an answer.
A hearing was held before me on March 23, 1970, at which time
counsel for the parties stipulated to the admissibility of a
certified copy of petitioner's Selective Service file. No other
evidence was offered. Upon examination of the file, the pleadings
and the law, I have determined that petitioner is entitled to no
relief and that the petition for writ of habeas corpus must
therefore be dismissed.
Petitioner's first allegation is that the Board erred in
failing to formally reopen his classification when he requested a
hardship deferment in November of 1968. He had been classified
1-A since June of 1968, and on November 12 of that year he was
sent an order for induction. Three days later, on November 15, he
informed the Board of his marriage on August 16, 1968. On
November 17 he requested a hearing to "appeal" his induction
order, alleging financial hardship to his wife if he were
inducted. On November 21 he filed a Dependency Questionnaire (SSS
Form 118) detailing his financial situation.
The Board considered this information on December 11 and, by
letter of December 13, notified petitioner that it had "reviewed
[his] file and after careful consideration it was their decision
that no change in classification was warranted." By letter of
January 2, 1969 he was requested to appear at the next Board
meeting "in accordance with [his] request of 17 November 1968."
The minutes of that interview read "no change".
Petitioner argues that the Board's failure to reopen his
classification denied him procedural rights and due process. See,
e.g., United States v. Freeman, 388 F.2d 246 (7th Cir. 1967).
The Board was required to reopen his file, however, only if he
presented evidence of a change in status due to circumstances
beyond his control, occurring since his induction order, which
would if true entitle him to reclassification.
32 C.F.R. § 1625.2(b); Davis v. United States, 374 F.2d 1 (5th Cir. 1967). It
was apparent from the information submitted, however, that the
alleged hardship predated the induction order, commencing
as it did with his marriage in August, 1968. Therefore, the Board
was not required to reopen his classification.
Petitioner argues alternatively that the Board did, in fact,
reopen his classification without providing the procedural
safeguards, such as the right to a personal appearance and an
appeal, required by the regulations. Such procedural rights must
be afforded an applicant for reclassification if the evidence is
weighed and the merits of his request are resolved by the Board.
Miller v. United States, 388 F.2d 973 (9th Cir. 1967); United
States v. Grier, 415 F.2d 1098 (4th Cir. 1969). The evidence does
not show, however, that such occurred here.
Nowhere in petitioner's file is there any indication that the
merits of his hardship claim were determined. Granting a personal
hearing does not constitute a reopening, United States ex rel.
Luster v. McBee, 422 F.2d 562 (7th Cir. 1970); United States v.
Mulloy, 412 F.2d 421 (6th Cir. 1969), especially when done at the
registrant's request. And a review of the file is proper, indeed
necessary, to determine if the classification should be reopened.
United States ex rel. Luster v. McBee, supra. Because the
record does not show that the Board reopened petitioner's
classification, he was not denied his procedural rights.
Petitioner next claims that the Board's failure to reopen his
classification after receipt of a request for a 111-A
(fatherhood) classification in June, 1969 was improper.
Petitioner had once again been ordered, on April 28, 1969, to
report for induction. A letter from a doctor was received by the
Board on June 11, 1969, stating that petitioner's wife "has
probable signs and symptoms of pregnancy."*fn1 His
classification was not, however, reopened.
Petitioner is correct in his assertion that, in some
circumstances, boards must reopen a classification even though
the notification of fatherhood is received after induction has
been ordered. 32 C.F.R. § 1625.2(b); Talcott v. Reed,
217 F.2d 360 (9th Cir. 1954). In this instance, however, the notification
was inadequate for it did not comply with the express requirement
of 32 C.F.R. § 1622.30(c)(3). That section permits fatherhood
classification when the child is not yet born only if a doctor's
certificate states "that the child has been conceived, the
probable date of its delivery, and the evidence upon which his
positive diagnosis of pregnancy is based." The absence of such
information here rendered the Board powerless, under the
regulation, to classify petitioner 111-A. It was obviously not,
therefore, required to reopen his classification. Battiste v.
United States, 409 F.2d 910, 914-915 (5th Cir. 1969), vacated on
other grounds, Troutman v. United States, 397 U.S. 48, 90 S.Ct.
812, 25 L.Ed.2d 35.
Failure to comply with the regulation was also defective in
that new "facts" were not presented to the Board which justified
reopening petitioner's classification. A tentative diagnosis of
"probable" pregnancy which states no supporting facts does not
rise to the level of evidence of circumstances beyond the
registrant's control necessary to establish a prima facie case
and thereby require reopening.*fn2 32 C.F.R. § 1625.2; Vaughn v.
United States, 404 F.2d 586, 590 (8th Cir. 1969).
Petitioner's next contention is that one of the Board members
resides outside of the area within the Board's jurisdiction, and
that therefore no valid quorum was present when he was classified
1-A. That part of the regulation in question requiring that Board
members live within the jurisdiction "if at all practicable"
(32 C.F.R. § 1604.52(c)) is not mandatory, however, and failure to
comply is not subject to collateral attack. Czepil v. Hershey,
425 F.2d 251 (7th Cir. 1970.)*fn3
Petitioner also claims that his 1-A classification was without
basis in fact because the Board had received evidence of a
medical disorder which rendered him unacceptable for service
under Army Regulations. However, the record reveals that he was
examined on April 15, 1968, after receipt of the above evidence
and before the 1-A classification issued. There was therefore a
basis in fact for the classification, and consequently further
judicial review is precluded. ...