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United States v. Commanding Officer

decided: May 20, 1971.

UNITED STATES OF AMERICA EX REL. JOSEPH VACCA, JR., DETAINEE, PETITIONER-APPELLANT,
v.
COMMANDING OFFICER, FT. HAMILTON, UNITED STATES ARMED FORCES EXAMINATION AND ENTRANCE STATION, BROOKLYN, NEW YORK, CUSTODIAN OF JOSEPH VACCA, JR., RESPONDENT-APPELLEE



Moore and Smith, Circuit Judges, and Timbers, District Judge.*fn* Moore, Circuit Judge (concurring in part and dissenting in part).

Author: Timbers

TIMBERS, District Judge:

Appellant Vacca, having been inducted into the Armed Forces of the United States on December 22, 1970 and on the same day having filed a petition for a writ of habeas corpus claiming he was being unlawfully detained pursuant to an order for induction issued by his local board in violation of the Military Selective Service Act of 1967, 50 U.S.C.App. ยง 451, et seq. (Supp. V, 1965-69), appeals from an order entered January 8, 1971, after a hearing in the United States District Court for the Eastern District of New York, John F. Dooling, Jr., District Judge, dismissing his petition for a writ of habeas corpus. For reasons stated below, we do not reach the issues raised by appellant in the District Court or in this Court; but, on the basis of our independent examination of the record, we find plain error to have been committed by the local board on April 23, 1969, in postponing appellant's induction until the end of the academic year, rather than reclassifying him I-S(C) as required by 32 CFR 1622.15(b) (1969). Accordingly, we remand with instructions that the order of the District Court be vacated and that the writ issue.

I.

The relevant classification history of appellant may be summarized as follows:

(1) On April 4, 1967, shortly after his eighteenth birthday (he was born February 5, 1949), appellant was classified I-A by his local board. At that time he had graduated from high school and was employed at a full-time job.

(2) On January 20, 1968, appellant wrote to his board notifying it that he had taken courses worth 5 semester hours of credit at Queens College the previous fall and was enrolled in courses worth 12 semester hours for the spring semester. He asked the board to "review his present status." The board took no action on appellant's request.

(3) In September, and again in December, 1968, appellant further notified his board that he continued to be enrolled in 12 semester hours of courses at Queens College. The record indicates that this is considered by the College to be a full-time course load, although appellant continued to be employed at a full-time job and was attending the College in the evening. Appellant, however, was not a matriculated student.

(4) On February 5, 1969, the board sent appellant a letter stating that it had reviewed his file and that the evidence which he had submitted "does not justify the re-opening of your case."

(5) On April 11, 1969, the board issued an induction order for appellant to report on April 29, 1969. Attached to the induction order was a statement (set forth in full and discussed below) advising appellant that the induction order would be cancelled and he would be classified I-S(C) to the end of his academic year if the board received prior to April 17, 1969 a certification from his school that he was a full-time student and was satisfactorily pursuing his studies.

(6) On April 14, 1969, the board received the certification from Queens College that he was enrolled in 12 semester hours and that this was considered a full-time course of study.

(7) On April 23, 1969, the board entered in its records the notation that appellant was not entitled to a I-S(C) since "he is a part time night student"; but the board did postpone his induction to the June call.

(8) On June 9, 1969, the board ordered appellant to report for induction on June 25, 1969.

(9) On June 18, 1969, the board received a request from appellant for a conscientious objector application form. Upon receipt of this request, the board further postponed appellant's induction.

(10) On July 24, 1969, the board held a "courtesy interview" with appellant to discuss his conscientious objector application. At the conclusion of the interview, the board noted in its records: "No change in status. Regist to ...


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