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December 11, 1970

UNITED STATES of America ex rel. John Michael GALASSO, Petitioner,
COMMANDING OFFICER, U.S. ARMY, etc., et al., Respondents

Dooling, District Judge.

The opinion of the court was delivered by: DOOLING


DOOLING, District Judge.

 Petitioner, an Assistant District Attorney in the office of the District Attorney of Nassau County, New York, was inducted into the Armed Forces on November 5, 1970, by the Respondent Commanding Officer at Fort Hamilton, Brooklyn, New York. He thereupon obtained an order to show cause why a writ of habeas corpus should not be issued to inquire into his retention in the United States Army and to effect his release from it. His central contention is that his induction was unlawful because of procedural irregularities amounting to a denial of due process incident to his final classification of 1-A and the issuance of the induction order and the final fixing of his induction date.

 Petitioner was born December 26, 1944, and registered in the Selective Service System in December 1963. He was classified as 2-S in January 1964 and continued in that class until August 1966 when he was classified 1-A. In November of 1966 he was classified 1-Y and in September of 1967 was again classified 2-S, a classification in which he continued until September 11, 1969, when he was classified 1-A.

 On June 8, 1969, Petitioner graduated from St. John's Law School with a degree of Bachelor of Laws. He had earlier completed four years of college majoring in history and political science and received a Bachelor of Arts degree at C.W. Post College of Long Island University. After Petitioner, on September 12, 1969, received his 1-A classification he wrote under date of September 20 advising the Board that he had accepted employment with the Nassau County District Attorney's office in a law enforcement capacity and that he believed this entitled him to a 2-A classification similar to that of a policeman. At the time, as his current status report disclosed, he was studying for the bar examination in a regular study course. He was advised that his employer would have to submit a request in writing in order for the Board Members properly to evaluate the file. Under date of September 21, 1969, Petitioner addressed a communication to President Nixon setting forth his position and requesting presidential intervention. On October 3, 1969, the Local Board transmitted his file to the State Director at the instance of State Headquarters. Under date of October 7, 1969, State Headquarters addressed the Director of National Headquarters advising that the registrant had been classified 1-A on September 11 and had both a right of personal appearance and appeal. The State Director's office advised further that the registrant's letter to the President had been forwarded to the Local Board as a letter of appeal and that in the circumstances Headquarters was not warranted in taking further action. Petitioner under date of October 8 requested a personal appearance and stated that he would then submit matter relevant to his health, employment and other matters affecting his classification. The Local Board set November 18, 1969, at 9:50 P.M. as the interview time for Petitioner's personal appearance.

 At the meeting on November 18, 1969 with the members of the Local Board Petitioner was present for about fifteen minutes and presented a letter from the District Attorney of Nassau County and also a typewritten memorandum to the Board supporting his claim for a different classification.

 The letter from the district attorney presented by Petitioner at the November 18 meeting recited that Petitioner had recently passed the bar examination and was awaiting admission to practice, that he had been interviewed by the district attorney for a position as assistant district attorney, that because of his background and personality it had been decided to make him a staff member as soon as he was admitted to practice, which would be within a few weeks, and that it had been most difficult to find young lawyers willing to dedicate themselves to public service especially at the salaries offered; the district attorney stated that in the interest of the people of the county and in furtherance of the administration of criminal justice he thought it most important that Petitioner be available for the appointment. Petitioner's own memorandum of the same date specified four sorts of physical conditions which he regarded as handicapping for military service, presented his position in connection with his expected admission to the bar, and referred to the district attorney's letter in support of the application for a 2-A classification. Four members of the Board and the Government Appeal Agent were present; the Petitioner was put under oath and asked to tell what classification he thought he was entitled to and why. Petitioner said simply that he thought he was entitled to a 2-A classification, referred to his file papers and stated that he had asked for a personal appearance on both his physical and employment status. The Board advised him that it was not in a position to evaluate medical data and suggested that he present them to the Board for due processing. Asked whether he had a letter from the district attorney with regard to the occupational deferment, he presented the letter. The Board indicated that it thought the letter inadequate in failing directly to request a deferment and that a specific request for deferment on the ground that the Petitioner was essential to the operation of the district attorney's office was required. The Board Member then said that the file would be presented to the Advisory Committee to determine whether Petitioner's job was one that should be considered essential in the national interest. The Form 7 prepared as a result of the meeting indicated that a specific request for deferment was presented on November 20 and the form indicates that Petitioner was advised of his appeal rights. The file contains a letter dated November 19 and received on November 20 from the district attorney reiterating that Petitioner would be employed as an assistant district attorney as soon as he was admitted to practice and then the district attorney made the following request: "Because of the importance of the position of Assistant District Attorney and because of the lack of qualified men for the position, I respectfully request that Mr. Galasso be deferred from military service so that he may be available to accept this appointment which should come about within the next few weeks." The district attorney's letter did not contain the specific language indicated by the Board, that is, that Petitioner was "essential to the operation of his office" but it is not certain that the Petitioner understood that those words embodied a definite requirement. Cf. 32 C.F.R. ยง 1622.23(a)(3).

 On November 21, 1969, the cover sheet was forwarded to State Headquarters "for transmittal to the appropriate Scientific Advisory Committee" and for the State Director's review and advice "Re: Employment in Nassau County District Attorney's office". The file was sent back under date of November 25, 1969, with the remark "This case is not an appropriate one for processing by the Advisory Committee." The file was returned on November 28, and on December 11 the Board determined by three affirmative no negative votes that the request for a deferment would be denied and Petitioner was classified 1-A. On the next day he was mailed a notice of classification together with a statement describing his appeal rights and right of personal appearance. The Selective Service file gives no indication of the precise grounds on which the denial of a 2-A classification was put and the statement has been made that there is no minute which expands on the simple statement appearing on the cover sheet that the request for deferment was denied.

 Petitioner contends that at this point he was denied a job evaluation by the State Advisory Committee by reason of the action of the State Director in deciding that the case was not one appropriate for processing by the Advisory Committee. Petitioner argues that the specific request for such action by the Local Board and the failure to comply with that request on the part of the State Director deprive Petitioner of that to which he was entitled under Administrative Bulletin No. 1.100 of May 4, 1962, which indicated that the State Advisory Committee had been set up to provide information and advice to the State Director and to Local Boards concerning the utilization and the essentiality of scientific, engineering and other specialized personnel outside the medical profession.

 There is no validity in Petitioner's contention on this point. The fair interpretation of what was said was that the Advisory Committee was not adapted or fitted to pass on the essentiality of a lawyer's work in the office of a District Attorney. The easy inference is that the Advisory Committee was industrially and scientifically oriented and that its work had to do with scientific, engineering and similar technical skills rather than with the learned professions.

 It remains, however, that the action of the Local Board on the application when the file was returned to it is entirely inscrutable. A 2-A deferment requires satisfaction of three specific conditions: First, that the registrant is engaged in the activity, second, that the registrant cannot be replaced because of a shortage of persons with his qualifications or skill, and, third, that removal of the registrant would cause a material loss of effectiveness in the activity involved. It is not determinable whether the Local Board considered that none of these conditions was satisfied or that some one was not satisfied. So in an immediate sense the Petitioner was deprived of the opportunity to present additional evidence that would meet any deficiency that the Board had found in his presentation.

 On December 19, 1969, Petitioner was admitted to practice and thereafter, in the latter part of December 1969, he was sworn in as an Assistant District Attorney, Nassau County. Petitioner advised the Local Board of these facts (as new matter) in his appeal letter of January 6, 1970. Under date of January 7, 1970, the District Attorney's office wrote the Local Board that it wished to appeal the decision denying petitioner an occupational deferment and the letter stated that Petitioner had been employed by the District Attorney's office "in an essential and non-replaceable capacity." The letter stated that for the County to lose Petitioner's services would be detrimental to the interest of the people and that the Petitioner had been personally selected by the District Attorney because of his particular qualifications and his background. The cover sheet docketed one or both letters as a request for a personal appearance, and under date of February 3, 1970, the Board addressed to Petitioner a notice requesting his attendance at the next meeting to be held February 26, 1970, at 7:30 P.M. as a "Procedural right" appearance under Section 1624.1 of the Regulations for the purpose of determining classification.

 The Form 7 filed under date of February 27, 1970, with respect to the appearance of February 26, 1970, indicates that it was of five minutes duration and the submission of a further letter dated February 24, 1970 from the District Attorney was noted. The letter advised the Board that

"For reasons of security, Mr. Galasso is under strict orders from me, not to reveal the contents or nature of his work ...

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