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December 11, 1969

Stephen W. HELDEN, Petitioner,
Melvin R. LAIRD, Secretary of Defense, Stanley R. Resor, Secretary of the Army, and the Commanding Officer, Armed Forces Examining and Entrance Station, 39 Whitehall Street, New York, New York, Respondents

The opinion of the court was delivered by: MACMAHON

MacMAHON, District Judge.

 Stephen W. Helden petitions for a writ of habeas corpus under 28 U.S.C. § 2241, claiming that his induction into, and present detention in, the United States Army violate his constitutional right to procedural due process. Petitioner alleges that Selective Service Local Board No. 59, in Syracuse, New York, failed to consider all the pertinent information submitted concerning his request for a II-A occupational deferment and refused to reopen his classification despite his presentation of a prima facie case for such a deferment.

 It appears that in June 1968, petitioner, while still a college student classified as II-S, applied for service in the Peace Corps. While his application was pending, he was graduated from college and shortly thereafter reclassified I-A on August 13, 1968. Sometime later, the Peace Corps accepted his application, and petitioner notified the board in writing on October 29, 1968 that he had been accepted, advised that he had been ordered to report for training on December 1, 1968, and enclosed the Peace Corps' standard form (PC 243) requesting a II-A occupational deferment. The board's records show that the request was received on November 4, 1968 but was not placed in petitioner's file until eleven days later, on November 15, 1968. That day, November 15, 1968, happened to be the very day the board sent petitioner an order to report for induction on December 6, 1968. It developed that the board had met on November 12, 1968, prior to issuing the order, but because petitioner's letter was not yet in his file, it did not even see, much less consider, petitioner's request for a deferment.

 Petitioner received the induction order on November 18, 1968, and on the following day personally appeared at the board and asked for an explanation. He was informed that he must report for induction as ordered since he was not yet officially in the Peace Corps.

 Two days later, on November 20, 1968, the board received a request from the Peace Corps for cancellation of petitioner's induction order and reconsideration of his I-A classification. The same day, the chairman of the board replied in writing denying the Peace Corps' request because petitioner had not yet commenced training. The next day, the remaining members of the board concurred in the chairman's action.

 Later the same day, petitioner delivered a letter to the board requesting a special meeting to consider his application for an occupational deferment. The following day, the board notified petitioner that he was not entitled to such a special meeting because he had not commenced his Peace Corps service at the time the induction order was issued.

 Petitioner applied to the United States District Court for the Northern District of New York for an order enjoining his induction. The application was denied for want of jurisdiction under § 10(b)(3) of the Military Selective Service Act of 1967. *fn1" The court did not, however, reach the merits. *fn2"

 Basing its action on the original induction order of November 15, 1968, a transfer board in New York City reordered petitioner to report for induction on August 4, 1969 at Whitehall Street. Petitioner submitted to induction on August 4, and shortly thereafter filed this petition.

 Petitioner claims that the induction order is void and his present detention illegal because the local board violated its own governing regulations and his right to procedural due process, first, by failing to consider his request for a reopening and reclassification prior to issuing the induction order and, second, by refusing to reopen his classification as required by 32 C.F.R. § 1625 after petitioner presented a prima facie case for a II-A deferment.

 Since we find petitioner's first ground dispositive, it will be unnecessary to consider the second.

 The regulations require the board to "receive and consider all information pertinent to the classification of the registrant." *fn3" After receipt of the information, the board is also required to reopen a classification if a registrant presents facts which, if true, would establish a right to a requested reclassification. *fn4" Failure to reopen after registrant presents a prima facie case for a requested deferment violates registrant's right to constitutional due process. *fn5" Obviously, before the board can determine whether reopening is necessary, it must at least consider the facts presented by registrant. Failure to consider the facts presented is, therefore, no less a violation of registrant's right to procedural due process than is a failure to reopen after presentation of a prima facie case for a requested deferment. *fn6"

 Respondents argue, however, that petitioner was not denied due process because he was not "engaged in the activity" for which he requested an occupational deferment and, therefore, failed to present a prima facie case. *fn7" This is no answer to petitioner's uncontradicted claim that the board not only refused to reopen his classification, but also failed even to consider the facts presented in support of his request.

 The board's failure to consider the facts was undoubtedly the inadvertent result of its failure to keep current files. We are mindful that local boards are all but swamped with a backlog of paper work due to evermounting applications for deferment as registrants become more aware of their rights. The mere fact, however, that local boards are understaffed and overworked does not relieve them of their responsibility to keep accurate, complete and current records to assure fairness in the selection of draftees. *fn8" Surely a young man should not be forced to sacrifice his freedom and risk his life simply because vital papers affecting his deferment are left unfiled for eleven days. Clerical delay is too frivolous an explanation for so grave a forfeiture.

 Here, neglect of a plain responsibility resulted in the board's failure to consider pertinent facts presented by a registrant in support of a deferment. Failure to consider such facts, in itself, constituted a denial of procedural due process whether or not those facts would have required a reopening of petitioner's ...

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