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October 28, 1969

UNITED STATES of America ex rel. Joseph VACCARINO, Petitioner,
OFFICER OF the DAY, "John Doe," Commanding Officer, Armed Forces Examining and Induction Station, Whitehall Street, New York, N.Y., and Local Board No. 1, Respondents

MacMahon, District Judge.

The opinion of the court was delivered by: MACMAHON

MacMAHON, District Judge.

Joseph Vaccarino petitions this court, pursuant to 28 U.S.C. §§ 2241 and 2242, for a writ of habeas corpus directing his release from the United States Army. Petitioner was inducted into the army on August 7, 1969 under an induction order originally issued on October 29, 1968, by respondent, Selective Service Local Board No. 1.

 Petitioner's plight stems from various applications made to his draft board, from April 1968 to August 1969, requesting a reopening of his then classification and reclassification to a III-A hardship deferment. Petitioner claims that his induction and present detention in the army violate his constitutional right to due process because respondent local board refused to reopen his classification after he presented facts entitling him to a III-A hardship deferment.

 A classification will be reopened prior to the issuance of an induction order if a registrant presents "facts not considered when the registrant was classified, which, if true, would justify a change in registrant's classification." *fn1" However, to reopen a classification after issuance of an induction order, a registrant must, in addition to showing facts not originally presented, demonstrate "a change in his status resulting from circumstances over which the registrant had no control." *fn2"

 These regulations have been interpreted to require the board to reopen when newly presented facts constitute a prima facie case for a requested deferment. *fn3" Failure to reopen after registrant has presented a prima facie case for a requested deferment violates registrant's right to procedural due process because it not only denies registrant the opportunity of a personal appearance before the board but also forecloses an appeal from its determination. *fn4"

 The III-A hardship deferment, insofar as pertinent here, is granted to "any registrant whose induction into the armed forces would result in extreme hardship * * * to his * * * parent * * * or sister who is dependent upon him for support." *fn5" A prima facie case for a III-A deferment here thus required presentation to the board of facts which demonstrate that petitioner was then making a substantial contribution to the support of his dependent father or sister and that either or both would suffer extreme hardship should his contributions cease. *fn6"

 Petitioner first applied for a hardship reclassification on April 30, 1968, while he was classified II-S as a student at Fordham University School of Law. He submitted in support of his application a dependency questionnaire (SSS Form 118) and a doctor's letter certifying his father's ill health. Answering the questionnaire, petitioner showed that he lived with his father and unmarried sister. The family had a total income of $3,372., consisting of $1,500. from a grocery store owned by his father, $972. from social security payments to his father, and $900. contributed by petitioner. His father was extremely ill and only able to operate the store with the assistance of petitioner's two married sisters. One sister was pregnant and expecting to give birth in August and would therefore be unable to continue helping the father in the store. The father, therefore, after August 1968 would be unable to operate the store without petitioner's assistance. No other member of the family, which included three sisters and one married brother, could contribute to the father's support.

 The board, on May 16, 1968, denied petitioner's application for a reopening. Petitioner contends that the facts presented to the board established a prima facie case for a III-A deferment and that the board's refusal to reopen violated his right to due process.

 Respondents argue that the facts presented did not constitute a prima facie case for a III-A deferment, because, according to respondents, petitioner failed to state that his brother and three sisters could not support the father. The indisputable fact, however, is that petitioner did state, in Series III of the dependency questionnaire filed with the local board on May 10, 1968, that none of his siblings were able to contribute to his father's support.

 Respondents, throughout this motion, confuse the preliminary requirement of alleging facts sufficient to show a right to a reopening with the ultimate proof of facts required for reclassification. All that is required to entitle a petitioner to a reopening of his classification is a presentation of facts, which, if true, would entitle him to a deferred classification. If petitioner meets this prima facie requirement, the board must grant a reopening, even if there are some facts presented which would support a denial of a deferred classification. *fn7"

 Petitioner's statement that his siblings are unable to contribute to his father's support is a sufficient prima facie presentation of that fact, and he was therefore entitled to a reopening. *fn8"

 Respondents argue, however, that even if petitioner did present a prima facie case for a reopening in April and May 1968, the board's refusal to reopen did not prejudice petitioner, because he was eventually granted the right to appear personally before the board and to appeal the board's denial of his claim for a III-A deferment. This argument rests on the fact that, in response to his inquiry, the board advised petitioner that he could not appeal from its denial of his request for a reopening but could appeal when he received a reclassification following graduation.

 Petitioner was graduated in June, and on July 18, 1968 he received a notice of reclassification as I-A. A skilled lawyer might glean from the murky language of the notice that it informed petitioner that he could request a personal appearance within thirty days and had a right to appeal from the I-A classification either immediately or after personal appearance.

 Petitioner could have presented to the local board, and on appeal to the appeals board, the same factual claim for a III-A deferment he wanted to appeal in April and May 1968. He was not, therefore, denied a right to a personal appearance or administrative appeal on the ...

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