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UNITED STATES EX REL. JOHNSON v. MCBEE

March 26, 1970

UNITED STATES OF AMERICA EX REL. MAURICE R. JOHNSON, PETITIONER,
v.
LT. COL. WILLIE H. MCBEE, RESPONDENT.



The opinion of the court was delivered by: Decker, District Judge.

MEMORANDUM OPINION

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. ...


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