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KULAS v. LAIRD

May 14, 1970

Grahame J. KULAS, Petitioner,
v.
Hon. Melvin LAIRD, Secretary of Defense, Hon. Stanley Resor, Secretary of the Army, Commanding Officer, Armed Forces Examining and Entrance Station, Fort Hamilton, Brooklyn, New York, Respondents


Weinstein, District Judge.


The opinion of the court was delivered by: WEINSTEIN

MEMORANDUM AND ORDER GRANTING WRIT OF HABEAS CORPUS

WEINSTEIN, District Judge.

 Petitioner seeks a writ of habeas corpus releasing him from the custody of the Armed Services. Since the final order to report for induction, pursuant to which the petitioner submitted to induction on March 30, 1970, is invalid, the writ must issue, and the petitioner must be released.

 I. FACTS

 The only evidence apart from the Selective Service file was the uncontradicted testimony of the petitioner. This testimony is highly credible. The United States knew the substance of petitioner's claims and had ample opportunity to prepare. Since the hearing was held more than three weeks after the decision of the Second Circuit in Paszel v. Laird, 426 F.2d 1169 (2d Cir. 1970) -- suggesting that testimony of Selective Service officials be utilized in cases such as this -- the the government's failure to produce additional evidence indicates that testimony of local board members would add nothing of value to the record.

 Petitioner was registered with his local board in Nashua, New Hampshire shortly after his eighteenth birthday in 1963. From that time until he was classified I-A on June 24, 1969, he attended high school and college, and was entitled to student deferments (I-S(H) or II-S).

 On June 2, 1969, petitioner requested a continued student deferment because of his graduate studies in the field of vocational rehabilitation which were being financed under a grant from the Department of Health, Education and Welfare. Believing that this request constituted all that was necessary to secure a personal appearance and appeal in the event of a denial of his request, he did not communicate with his local board again until August 18, 1969. On that day he appeared at his local board and sought a personal appearance and appeal.

 Told by clerks at the local board that a personal appearance could no longer be granted, but that an appeal would be allowed, the petitioner executed a written request for an appeal. He also, as his testimony indicates,

 
"requested to see a Government appeal agent to more or less find out what my rights are and where I erred, if I did. [The clerk] indicated again that it would be too late for her to arrange a time to see the Government appeal agent.
 
"At that time, the clerk -- the second clerk said to me that if I had any questions that I should direct them to her because she knew almost as much about the law as the Government appeal agent does, so I reiterated what I had said to the first clerk. She said, 'No. We don't have time to arrange for a personal appearance or have you see a Government appeal agent.'
 
* * *
 
"[She] said to me that I shouldn't tell her how to do their work, and then the first secretary started to raise her voice at me. * * *
 
"Then, she said, 'Well, we'll send your file to the State Board of Appeal if you want, but we will not grant you a personal appearance.' * * *
 
"She said, 'Either have your file sent to the State Appeal Board or I'll put your file back into the file and you will be inducted accordingly.'"

 His file was sent to the State Appeal Board that day, pursuant to 32 C.F.R. § 1626.2(d), which provides that an appeal may be permitted, although the time for one has expired, if the failure to appeal earlier "was due to lack of understanding of the right to appeal." The file was returned to the local board on September 19, 1969, after the Appeal Board had affirmed the decision below. Less than one week later, September 25, 1969, petitioner was ordered to report for induction.

 An unexplained note pinned to the file indicates that the local board met on October 14, 1969 and "reviewed and considered" the "entire contents of [registrant's] file." This memorandum suggests that the local board passed on the student deferment claim on the merits after petitioner was ordered to report for induction but before the conscientious objector claim detailed below was filed. The note stated that the "Board feels it ...


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