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UNITED STATES EX REL. PASCIUTO v. BAIRD

June 20, 1941

UNITED STATES ex rel. PASCIUTO
v.
BAIRD, Colonel, et al.



The opinion of the court was delivered by: ABRUZZO

ABRUZZO, District Judge.

The writ of habeas corpus in this proceeding was obtained on behalf of Michael Pasciuto upon allegations contained in the petition by Charles L. Cusumano, his attorney.

He was inducted into the United States Army on May 14, 1941, and assigned to Camp Upton, Yaphank, Long Island, where he is still stationed.

 This selectee claims that there was no substantial evidence to support the conclusion of the Local Board that the selectee herein has no dependents. He asserts that there is ample proof to indicate that he had bona fide dependents at the time he was inducted into the Army and that therefore he has been deprived of his liberty illegally.

 A chronological recitation of the facts before the Local Board follows. The selectee received the Serial No. 3914, and on the drawing of the National Lottery, the said Serial No. 3914 received order No. 491 of this Board.

 On December 3, 1940, in regular order, a questionnaire was sent to the selectee, addressed to him at No. 956-59th Street, Brooklyn, New York. The relator answered and mailed the said questionnaire to the Local Board which was received on December 9, 1941. The information given by the selectee on his questionnaire indicates that he had no physical or mental defects or disease; that he was a contractor on ladies' blouses, self-employer, having his own business; and that he had five dependents, namely: Anthony Pasciuto, male, sixty, father; support began in 1935; total support.

 Emilia Pasciuto, feminine, fifty, mother; total support since 1935; her earnings, none.

 Clara Pasciuto, feminine, twenty-seven, sister; dependency began March 9, 1940; total support, no income from any source.

 Joseph Pasciuto, male, nineteen, brother; support started in 1935; total support; no other income.

 Nicholas Pasciuto, male, seventeen, brother; total support since 1935; no other income.

 The selectee's questionnaire also stated that the net cost of maintaining his home for twelve months was $2,200 and that his net income was approximately $3,800.

 On December 17, 1940, the Local Board duly classified the selectee in Class I. On February 11, 1941, he was mailed a notice to report for a medical examination on February 13, 1941. The records indicate that the relator was examined, at which time he "complained of pain in spine so that he can't sit down. This pain comes about once a month". As a result, the relator was examined at the Methodist Hospital, on February 21, 1941, and the X-ray report is as follows:

 "Methodist Hospital

 "Department of Radiology

 "Consultation Record

 Draftee X-ray Report

 "Name: Pasciuto, Michael

 "Request: Lumbo-sacral spine, Office X-ray No. 50,693, Dr. Grillo

 "No abnormality in detail or outline of the individual bodies comprising the lumbosacral spine is noted. Laterally, there is no evidence of spondylolisthesis, the angle falling within normal variable limits. There is no evidence of ...


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