The opinion of the court was delivered by: ABRUZZO
A writ of habeas corpus, dated June 10, 1941, directed Colonel Baird, Commanding Officer of Camp Upton, Yaphank, New York, to produce the body of Louis R. Errichetti, for the purpose of inquiring into the cause of his detention. The petition for the writ was made by Mary Errichetti, who stated that it was also on behalf of Carmella Errichetti, wife of the selectee.
The return of Colonel Baird stated that the selectee was being held by authority of the United States as a soldier in the Army of the United States, after he was lawfully selected for service therein and had been duly and regularly inducted under the provisions of the Selective Training and Service Act of 1940, 50 U.S.C.A.Appendix, § 301 et seq.
The petitioner, Mary Errichetti, filed a traverse to the return on June 13, 1941, wherein she denied that Louis R. Errichetti was lawfully selected for service and that he had been duly and regularly inducted therein under the provisions of the Act.
As no new pertinent matter was submitted in the traverse, the decision herein must be determined entirely on the Case Record.
Errichetti was registered on October 16, 1940, and filed his questionnaire on December 26, 1940. He made a claim that his mother was a dependent because his father did not contribute to her support. It appears that his mother is fifty-nine years of age and his support of her began in 1935. He contributed $15 per week (from a salary of $23 per week) and his mother received $14 a week from other sources.
On March 6 and 7, 1941, he notified the Local Board of a change in his status, stating that he had been married on February 23, 1941, maintained his own home, his wife did not work and was not physically able to earn her own living and that she was partially under medical care.
On March 7, 1941, the notice to appear for a physical examination was mailed to the selectee and on March 15, 1941, he was examined and found qualified for general military service.
After his classification in Class 1-A on March 17, 1941, he appeared before the Government Appeal Agent and stated that he was engaged on September 5, 1940, that an engagement party had taken place at home and that he and his wife had been going together for two years prior to the formal engagement. He asserted that his wife had been told by a physician that she had a spot on her lung and probably had tuberculosis. A communication to the physician on March 22, 1941, elicited the fact that she did not have indications of tuberculosis.
The selectee appealed from the classification of the Local Board by signing a notice of appeal on the back of his questionnaire.
On April 22, 1941, the claim of dependency was reviewed by the Local Board and a minute on the back of the questionnaire shows this entry: "New Evidence -- Class 1-A continued -- suspicious, confusing statements."
On May 2, 1941, the Board of Appeal, handed down its decision continuing the selectee in Class 1-A by a vote of five to nothing. On May 8, 1941, he was sent a notice of continuation of classification and also notified to appear for induction into the Army on May 24, 1941.
On May 13, 1941, he and his wife appeared before the Local Board and the Government Appeal Agent and requested a further hearing, which was granted. The induction date was postponed awaiting the result of the X-ray of the wife. The minutes show that another physician who examined the wife of the selectee had informed the Local Board that the selectee and his wife had called upon him and requested a letter stating that the wife was unable to work.
On May 26, 1941, the doctor wrote to the Board and stated that his examination and X-rays showed that the wife had a healed primary tuberculosis lesion which should be watched in case of reactivation and that she should be examined ...