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July 25, 1969

UNITED STATES of America ex rel. Reuben Joel SHIFFMAN, Petitioner,

The opinion of the court was delivered by: BRYAN


 Petitioner, Shiffman, has applied for a writ of habeas corpus directing his release from the United States Army on the ground that his induction into the armed services was unlawful. Shiffman was inducted into the Army on August 6, 1968, after being declared a delinquent and reclassified as I-A by his Local Selective Service Board. *fn1"

 The not uncomplicated factual background of this application is as follows:

 From 1962 until August 1967, Shiffman was classified II-S, first as an undergraduate and then as a graduate student. Upon completion of his gradute studies, he was reclassified I-A on August 8, 1967. Thereafter, on August 16, 1967, the Local Board sent him a current information questionnaire. The Board received the completed questionnaire and a letter from Shiffman on September 11, 1967. These communications advised the Board that Shiffman had been accepted as a VISTA volunteer, that he had begun his training on August 30, 1967, and that his current mailing address was 90 The Fenway, Boston, Massachusetts. In addition, Shiffman enclosed his I-A Notice of Classification (SSS Form 110) and stated that he wished to appeal this classification in light of his employment as a VISTA volunteer.

 On September 11, 1967 the Board replied to Shiffman at his Boston address advising him that consideration of a request for a II-A occupational deferment must await a request from VISTA. The Board also returned the I-A Notice advising Shiffman that he was to sign it and carry it with him, "as in the past".

 VISTA then wrote to the Board advising that Shiffman had been accepted on the VISTA program and had begun a six-week training program in Boston on August 30, 1967 and requesting a 14-month deferment. The letter was received by the Board on October 5, 1967.

 On the basis of this request, the Local Board, on October 10, 1967, reclassified Shiffman II-A until October 1968. The same day, a Notice of Classification reflecting the granting of this occupational deferment was sent to Shiffman in Boston and a Classification Advice (SSS Form 111) advising of the II-A reclassification was mailed to VISTA. *fn2"

 On October 16, 1967 Shiffman mailed his August 8, 1967 I-A Notice of Classification to the United States Attorney General. It is undisputed that this was done "for the sole purpose of expressing * * * dissent from the participation of the United States in the war in Vietnam." *fn3" As of the October 16th date, Shiffman was actually classified II-A but had not yet received his II-A Classification Notice. Instead, the II-A Notice which had been sent to him at the Boston address, where he was staying during his VISTA training, was returned to the Board on October 20 with the envelope marked "NOT AT 90 THE FENWAY". In fact, Shiffman had by this time completed the 6-week VISTA training program in Boston, and had gone to New York to begin his VISTA assignment there. The minutes of the Local Board of October 20, 1967 reflect the fact that the II-A Notice had been returned from Boston unclaimed.

 On October 26, 1967, the clerk of the Local Board filed the following Report of Oral Information (SSS Form No. 119):

"Mr. Ross, FBI agent, checked file of registrant this date and reported registrant had returned his Notice of Classification of I-A, dated 8-8-67, directly to the U.S. Atty General. He had evidently mailed the card in.
"In view of L.B. Memo 85, file will be presented to the Board at their next meeting for further consideration."

 Local Board Memorandum No. 85 was issued by Lt. Gen. Hershey, Director of Selective Service, on October 24, 1967, two days before this Form 119 report was filed, and had evidently just been received by the Local Board. Among other things, the memorandum directed that when a Local Board received a current Notice of Classification which had been abandoned by one of its registrants, it should declare the registrant delinquent for failure to have the card in his possession and reclassify him into a class available for service as a delinquent. If, on appeal, the registrant was retained in a class available for service and the delinquency had not been removed, the registrant should then be ordered to report for induction as a delinquent.

 A supplementary letter from the Director of Selective Service, dated October 26, 1967, went further than the memorandum. It approved reclassification for protest demonstrations, even where there was no violation of the regulations and no delinquency declaration. *fn4" Reclassification in such circumstances has been held to be unauthorized and contrary to law. National Student Ass'n Inc. v. Hershey, 412 F.2d 1103 (D.C.Cir. 1969). *fn5"

 When the Local Board next met on November 14, 1967, Shiffman was declared a delinquent and forthwith reclassified I-A. On November 16th a Notime of Delinquency, the new I-A Notice of Classification, and an Advice of Right to Personal Appearance and Appeal (Form 217) were mailed to him. These documents were sent both to the Boston address and to the New York VISTA office to which Shiffman was assigned. Shiffman received those sent to him in care of the New York VISTA office.

 On receipt of these communications, Shiffman, having in his possession the employer's advice of his II-A classification, wrote to the Board on November 20, 1967, as follows:

"I have not as a VISTA Volunteer found permanent residence in New York. I am currently staying at the above address [325 W. 100, New York, N.Y. 10025] and am receiving mail there. I will notify you of any change.
"A letter is being sent from VISTA, Washington, explaining my current status as a VISTA Volunteer."

 This letter reached the Board on November 24. Its Minutes of Action reflect the fact that a "change of address" was "received from registrant" but no action was taken on this letter.

 On December 4, 1967 the Local Board received an appeal by VISTA from Shiffman's I-A reclassification on the sole ground that his work for VISTA was of prime importance to the national interest. A Report of Information form (SSS Form 119) was then prepared by the Clerk of the Board stating, among other things, that the FBI had reported on October 26th that Shiffman had returned his draft card to the Attorney General and that "At this time Mr. Shiffman was not aware that his deferment had been granted and was supposedly I-A, although VISTA was made aware of his classification, each time it was changed."

 The Minutes of Action of the Local Board on December 12, 1967 stated: "File considered by Board. Decision not to reopen class but forward file to Appeal Board". On December 29th the Appeal Board retained Shiffman in the I-A delinquent reclassification and so notified Shiffman and VISTA.

 On January 18, 1968, Shiffman wrote a confused letter to the Local Board claiming that he had rectified any delinquency and asking for an appeal if the delinquencies had not been corrected. The Local Board replied on January 26th, stating that his "file has been considered by the Board and it is their decision not to remove the delinquency." On the same day, the Board forwarded Shiffman's file to state headquarters for review, and on February 2, 1968 state headquarters advised the Board that in its opinion Shiffman had been properly processed and retained in Class I-A and that he should be processed for induction in the "regular manner".

 On February 26, 1968, the Local Board ordered Shiffman to report for induction in Florida on March 13, 1968. The term "DELINQUENT" was printed on the order for induction. A number of administrative postponements of induction followed.

 Then, on April 29, 1968, Shiffman brought a preinduction civil suit in this district, *fn6" but was unable to obtain a temporary restraining order halting his induction. *fn7" A temporary stay was granted by Mr. Justice Harlan, but the full Supreme Court denied Shiffman's application for a stay or injunctive relief. *fn8" Shiffman was inducted into the Army on August 6, 1968. Thereupon, he commenced the present proceeding challenging the legality of his induction.


 Shiffman first urges that there was no basis in fact for the delinquency declaration by the Local Board and that therefore his reclassification as I-A ...

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