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UNITED STATES EX REL. DE GRAW v. TOON

October 22, 1943

UNITED STATES ex rel. DE GRAW
v.
TOON, Lieutenant Colonel



The opinion of the court was delivered by: ABRUZZO

ABRUZZO, District Judge.

This is a hearing on a return to a writ of habeas corpus.

The relator, under the Selective Service and Training Act, of 1940, 50 U.S.C.A. Appendix, § 301 et seq., was classified in Class 1-A and was ordered to report for induction into the Army on December 15, 1942. He reported for active duty on December 22, 1942.

 Prior thereto, the relator's application to be placed in a deferred classification because of the destitution of certain dependents was overruled by the Selective Service Board.

 From December 22, 1942, until June 1, 1943, the relator served as a private in the Army of the United States.

 As a result of an application for discharge, on June 1, 1943, the relator was honorably discharged from the Army of the United States pursuant to Section V, AR 615 -- 360.

 As a condition precedent to his discharge, the relator was required to furnish assurance from his former employer that he would be re-employed at his former occupation as a coremaker at the foundry of the Wright Aeronautical Corporation at Paterson, New Jersey.

 The decision of the Army of the United States in granting the relator his discharge was based upon the destitution of his dependents, viz., his father, James B. De Graw; his mother, Rebecca L. De Graw, and his niece, Shirley M. Helms. The facts relative to dependency were thoroughly investigated by the Army of the United States and the American Red Cross.

 On June 2, 1943, this relator reported in person to his Local Selective Service Board, and apprised it of his honorable discharge and the conditions and causes therefor.

 On June 3, 1943, the relator returned to his former employment as a coremaker at the Wright Aeronautical Co.

 On June 11, 1943, he was notified by his Local Selective Service Board that he was reclassified in Class 1-A. Following this reclassification, he was ordered to be inducted into the Army of the United States on July 19, 1943. After his reclassification and prior to his reinduction into the Army, the relator attempted to find out the basis for his immediate reclassification and reinduction. He was informed that it was the unanimous opinion of the Board that was where he belonged. An appeal by the relator confirmed the decision of the Local Selective Service Board, placing the relator in Class 1-A.

 It is difficult for the Court to glean from the record in what manner the Local Selective Service Board arrived at the decision of reclassifying this relator in Class 1-A so soon after his discharge from the Army, since too little time had elapsed for his situation to have changed to vitiate the reasons for his discharge. It is apparent that the Local Selective Service Board reclassified this relator in 1-A, ten days after his release from the Army by reason of the destitution of his dependents, on his record as it existed prior to his first induction into the Army.

 Slight reference is made in the record as to a farm owned by the relator's parents from which there might be some income. However, the record is practically devoid of substantial facts regarding this feature of the case.

 The United States Attorney in his brief cites United States ex rel. Broker v. Baird, D.C., 39 F.Supp. 392, and United States ex rel. Erichetti v. Baird, D.C., 39 F.Supp. 388, as authority for the finality of the decision of the Local Selective Service Boards, provided the decision ...


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