The opinion of the court was delivered by: ZAVATT
This is a petition for a writ of habeas corpus by one who submitted to induction and is now in the Armed Forces, stationed at Fort Hamilton, Brooklyn, New York, but on leave since the date of his induction pending a determination of his petition.
Pursuant to the Selective Service Act, 50 U.S.C. App. § 453, 32 C.F.R. § 1611.1, the petitioner registered with Local Board No. 3, Great Neck, New York, (Board) in March 1963. He was then a full-time student at Hofstra University, Hempstead, New York, and so reported to the Board in his Classification Questionnaire, dated January 31, 1964. The Board classified the petitioner II-S, thereby granting him a student deferment. 50 U.S.C. App. § 456(h)(1), 32 C.F.R. § 1622.25. This classification continued from February 12, 1964 to March 19, 1969, when he was reclassified I-A.
When he applied in November 1967 for a continuation of his student deferment, he was a student at C.W. Post College of Long Island University (Post College) and had previously notified the Board in writing, by letter dated September 12, 1966, that he had "recently been married." He signed Selective Service System Form 104, "Request for Undergraduate Student Deferment," which included a copy of Section 6(h)(1) of the Selective Service Act of 1967, 50 U.S.C. App. § 456(h)(1) which provides, inter alia, that "No person who has received a student deferment under the provisions of this paragraph shall thereafter be granted a deferment under this subsection, * * * except for extreme hardship to dependents (under regulations governing hardship deferments), * * *." In that request and over his signature, petitioner alleged "I have read and understand the preceding provisions of the Military Selective Service Act of 1967 * * *."
On December 12, 1968, the Board received an undated letter from the petitioner advising it that (1) he is still a student at Post College; (2) "the inevitable has happened. My wife is pregnant"; (3) that his father must stop work on doctor's advice; (4) that he (petitioner) is "unexpectedly being hit with new financial burdens; Both my new coming family's and that of my parents" and requested permission to leave school and find a full-time job. Although he did not expressly request a hardship deferment, the Board mailed him SSS Form 118, Dependency Questionnaire. In the completed questionnaire filed with the Board on December 20, 1968, the petitioner claimed:
(1) that his wife, age 23, is totally dependent on him for support;
(2) that no member of the immediate families of petitioner or his wife can contribute to the support of his wife;
(3) that he has been employed part-time as a taxi driver, with average earnings of $50 per week, since October 1968;
(4) that his monthly obligations for "Rent, Food, Phone, Electric, Insurance, Gasoline, Loan" total $317 (of which $176 is for rent);
(5) that his pregnant wife is not employed;
(6) that his father has a serious heart ailment and will soon be forced to stop working;
(7) that petitioner "won't be able to support him fully but I feel I can be a big help to financial, and mental matters for my father";
(8) that by working part-time "I can't make ends meet."
He asked the Board for help and offered to furnish any needed further information, including "a dependent sheet on my father and mother in January or February * * *." It is to be noted that petitioner listed only his wife as a dependent in that questionnaire.
Following the receipt of this questionnaire, the Board requested the Nassau County Department of Welfare to make an investigation of the petitioner's "Request for deferment due to dependency or hardship" for the reason "Wife pregnant. Works part time and attends school part time." See 32 C.F.R. § 1621.14.
The report of the Welfare Department, filed January 24, 1969, confirmed the wife's pregnancy (expected date of delivery June, 1969); the petitioner's part-time employment (but at $57 per week); his student status "with hopes of graduating in June 1969." It also reported petitioner's New York State Higher Education Loan, through the Franklin National Bank of "$900 per semester." It also reported the representations of petitioner's wife (1) that petitioner's parents "cannot be of help"; (2) that her parents have been forced to sell their home because her father is handicapped; (3) that petitioner's parents are "selling their home because his father has cancer and cannot maintain it"; (4) that petitioner pays monthly rent of $176; (5) that the insurance premiums on his fully paid 1967 Pontiac are $18 per month. The Welfare Department stated that, according to "Welfare Standards Budget," the needs "For Mrs. Weissman, excluding the cost of medical, dental and debts" amount to $270.45 ("Income Unknown") and that "Circumstances for the family of registrant would be below public assistance standards if he were inducted or if he continued to be at home" (presumably with no income). The report concluded:
Note: According to present income for his family, registrant would be presumptively eligible for supplementary assistance at this time.
On March 19, 1969, the Board classifified petitioner I-A and notified him that he could ask for a personal appearance or an appeal within thirty (30) days. See 32 C.F.R. § 1624.1. Within that period, petitioner wrote the Board an undated letter, received April 9, 1969, expressing his desire "to appeal my I-A classification * * * for the following reasons." He listed four reasons -- the first three of which related to (1) his father's illness; (2) that "I am now aiding in his support"; (3) "To help him I have taken a job as an independent commission salesman." His fourth reason related to his wife. He merely stated "(4) My wife is expecting a baby in June." He requested "the chance to substantiate this evidence in a personal appearance as soon as possible."
The Board considered that, by this letter, petitioner was now claiming hardship for his father, in addition to the claim in December 1968 of hardship for his wife. For it wrote a letter to that effect and requested petitioner to fill out another Dependency Questionnaire with information relating to the alleged hardship that would be imposed on his father were the petitioner inducted into the Armed Forces. On April 14, 1969, the petitioner filed another Dependency Questionnaire in which he named his father and his wife as dependents; listed his wife as totally dependent upon him for support; claimed that "as of March 8, 1969" he was contributing to his father at the rate of $2400 annually; that his income from all sources during the last 12 months was $4200; that he started to work as an automobile salesman in March 1969; that he paid a monthly rent of $176 and that his other monthly obligations amounted to $59 for "Loan, Electric, Telephone"; that he does not claim his parents as a deduction on his income tax returns because his income as a taxi driver amounts to about $40 to $60 per week and that, as a car salesman, working only on commissions, no sums are deducted from his compensation by his employer. Further, that income tax is not payable until "The End of the year." This would suggest that he was saying that he did not commence to assist his father financially until March 1969 and that, at most, he was donating and intended to continue to donate $50 a week toward his father's support. So that, as of the date of this questionnaire he had contributed, according to his own claim, approximately $250 for his father's support. In response to the question as to why other close relatives could not assist his father, he stated that one sister, age 20, was a premedical student attending an "Out of Town School" and living in an apartment; that a brother, released from Army-Intelligence in October 1968 was "Just Able to Make Ends Meet" and that an older sister, a school teacher, age 30, was "Taking Leave of Absence Without Pay To do Social Studies Research In Europe."
With this questionnaire petitioner submitted the certification of a Dr. Panzarella that his wife was pregnant, "in a highly nervous and apprehensive state because of her husband's Draft Classification" and a letter of a Dr. Baliff with reference to the father's severe illness (one lung, chronic bronchitis, pulmonary emphysema, heart disease) "His condition is at best, so tenuous that I feel it unwise to cause any undue aggravations to Mr. Weissman since this might result in his demise. I therefore think it unwise to take Mr. Robert Weissman into the Armed Forces and feel he is entitled to a compassionate deferrment [sic]."
In response to this questionnaire, the Board requested him to attend its next meeting and to submit, either prior to or at that meeting, "a written statement including any supporting documents outlining the reasons for your request for deferment." At the Board meeting of May 21, 1969, the petitioner submitted a written statement to the effect that:
(1) his father had stopped working and "I am trying to help him financially any way I can";
(2) his father is unaware of petitioner's I-A classification and "is seriously up-set by the thought of my having to go in the Armed Services" and "his doctor recommends not mentioning my problem to him until I have my status straighten [sic] out as any upset may cause serious side effects physically";
(3) his wife is pregnant and "under constant doctors watch because of nerves * * * she has been ill and upset since learning of my I-A classification";
(4) his wife's condition is "worsened by the fact that her father lost his arm during World War II and she has always lived in fear that some day this or worse could happen to her husband or sons."
Petitioner appeared before the Board for fifteen (15) minutes on May 21, 1969. He submitted the written statement above-referred to and was then asked the following ...