The opinion of the court was delivered by: McGRANERY, District Judge.
This matter arises on a petition for a writ of habeas
corpus, and involves the power and scope of judicial review of
a draft board classification.
Petitioner, now twenty-three years old, has desired to
become a medical doctor since he was twelve years old. In his
youth, as a high school student, he was known by the sobriquet
"Dr. Kildaire." He matriculated at Villanova College,
receiving the degree of Bachelor of Science in Biology in
June, 1950. In addition to petitioner's receiving his degree
with biology as his major area of study, he selected chemistry
as his minor field. While in college, he belonged to the
premedical fraternity. Beginning in the summer of 1949 and
continuing into 1950, petitioner made vigorous efforts to
secure an acceptance to an accredited medical school.
Petitioner's quest moved in ever-widening circles. He had
friends intervene on his behalf with the authorities at
Jefferson Medical College and Temple University. He addressed
applications to the medical schools of Georgetown University,
University of Pittsburgh, University of Pennsylvania, and St.
Louis University, as well as to Jefferson Medical College,
Marquette University and Temple University. He also sought
admittance to three Canadian medical schools, and to schools
in England, Ireland, and Scotland. His long-continued efforts
were uniformly unsuccessful.
There can be no question that petitioner's efforts to study
medicine were totally unrelated to any covert desire on his
part to avoid military service: at the time he initiated his
efforts and for a year thereafter the Army was making no calls
on Selective Service for draftees. In the newspaper phrase of
the time, the draft was "in the deep freeze" in 1949. There it
was to remain until the Korean outbreak in June, 1950. And
petitioner's persistence in his project after the draft was
again in operation is likewise no sign of any will to avoid
army service: doctors are a class particularly sought by
Selective Service, and are subject to a special call. See,
e.g., Presidential Proclamation No. 2906, 50 U.S.C.A.Appendix,
§ 454 note.
While engaged in his endeavor to obtain admission to a
medical school, the petitioner, then still a college student,
attended a lecture by a Dr. Max Strumia, sponsored by his
premedical fraternity. Dr. Strumia mentioned that he himself
had received his professional training in Bologna, Italy, and
detailed encouraging instances of American students who had
gone to Italy to study medicine, returning to the United
States to practice. Heartened by this lecture, petitioner
discussed his plight with the dean of Villanova. He received
from the dean a promise of assistance in his efforts to become
a student at the Medical School of the University of Rome, as
well as recommendations as to suggested courses that would
better qualify him for admission to that school. These
suggestions the petitioner followed.
We may note that there is nothing surprising or inexplicable
in petitioner's choice of a medical school: he is of Italian
parentage and he speaks Italian, as do his parents and sister.
The petitioner had registered under the Selective Service
Act of 1948, 62 Stat. 604, 50 U.S.C.A.Appendix, § 451 et seq.,
on September 15, 1948, and was classified I-A on December 20,
Petitioner inquired of the secretary of his draft board in
July, 1950, as to the procedure for medical deferment. He had
his only interview with a member of his draft board, Local
Board 107 of Bryn Mawr, Pennsylvania, on or about October 18,
1950, when he spoke with the chairman, Dr. J. Allyn Rogers, a
Petitioner left the United States for Italy on October 28,
1950, traveling by airplane. He registered as a medical
student in the University of Rome on November 2, 1950,
beginning classes the same day. The academic year in the
school runs from November 1st to October 31st, with a summer
recess intervening. Until coming back to the United States in
January, 1952 at the direction of the United States Attorney
for this District, petitioner remained there in residence,
continuously engaged in the pursuit of those courses leading
to graduation. By letter dated November 10, 1950, petitioner
advised his local board of his arrival in Rome; this letter
bears the stamp of the local board as of November 28, 1950.
Petitioner also secured from the Italian Minister of Foreign
Affairs a certificate testifying to his residence in Rome
Medical School; the original was dated November 28, 1950, and
has the stamp of the local draft board dated December 13,
1950. This certificate was in the Italian language.
Petitioner further forwarded to the board an original
certificate from the University of Rome dated December 6,
1950, setting out the fact of his residence and study in that
school. This document bears the stamp of the local board as of
December 13, 1950. Later, through his parents, he sent to the
board a "Tessera" or identification slip of the School dated
December 6, 1950, bearing his picture and testifying that
petitioner was in the second year of medical school during the
academic year 1950-1951. During the year 1951 he caused to be
delivered certificates from the school witnessing his
pursuance of the third year of medical study. Originals of
such certificates are attached to the official file copy of
this Opinion as Appendix "A".
Such were the steps taken by the petitioner to advise his
local draft board of his whereabouts and his academic
activities. No reply or communication from the board was ever
sent to the petitioner. On this point his uncontradicted
"Q. Now, after you sent these certificates and
these documents to the draft board did you
receive any further communication from the draft
board? A. I never did receive any communication
from the draft board.
"Q. You never did receive any? A. Never."
The Government has stipulated that this was so.
The board mailed to petitioner under date of November 7,
1950 an Order to Report for Physical Examination. He was to
appear on November 22, 1950; he did not do so. The chairman of
the board, Dr. Rogers, when examined by petitioner in his
capacity as custodian of the draft board records, testified to
the existence in the board files of a letter from the
petitioner to his mother, dated November 15, 1950, discussing
his experiences in the Rome Medical School. The mother gave
that letter to the draft board at the same time that she
returned to it the Order to Report for Physical Examination,
and the board kept that letter. On this point Rogers stated:
"Q. But that [the letter of November 15th]
shows that he was in Rome for the purpose of
attending Rome University? A. That was addressed
to her, not to me.
"Q. But it had notice in there that he was in
the Rome Medical School? A. Yes, sir."
The Chairman of the board asserted that he perused and filed
this letter before November 28, the date the board stamped
petitioner's letter from Rome advising of his arrival there.
But despite the earnest
urging of the Court, he could not fix the date more precisely
than that; indeed, as the record appears, he may have
considered it prior to November 22, 1950, the date on which
petitioner failed to appear for examination. As we have seen,
the local board had received petitioner's letter from Rome and
a certificate from the Italian Ministry of Foreign Affairs by
November 28th. It stamped a certificate from the University of
Rome on December 13, 1950, and a "Tessera" or identification
slip on December 27, 1950.
The local board made no use of all of this material, and
assigned no weight to it. It simply sent an Order to Report
for Induction to petitioner on January 8, 1951 and turned him
over to the United States Attorney's office as a delinquent on
February 1, 1951.
Dr. Rogers, the chairman, several times testified that he
considered the case out of his hands on November 28, 1950;
that the matter could not then be reopened. Yet petitioner's
folder, which was sent to the State Headquarters "six or seven
times" was first referred there on January 16, 1951. This was
nearly two months after the chairman insists the matter was out
of the hands of the local board. He further admitted that the
record shows no correspondence whatever between the local board
and the State Office with respect to the petitioner between
November 7, 1950 and January 8, 1951, the date the Order of
Induction was sent.
Rogers further conceded that once petitioner failed to
report for his physical examination, "There was no important
action taken after that time" by his board. At no time between
the date of petitioner's failure to appear and his referral as
a delinquent did the board as a board discuss petitioner's
case, reopen it, or resolve to adhere to its former
classification and so notify petitioner. Rogers cannot even
show by a notation in a board memorandum or a personal
recollection that he ever between the failure to appear and
the receipt of petitioner's letter from Rome called the
board's attention to petitioner's failure to appear. He claims
only that "higher authority" advised proceeding with an order
for induction on January 8th, and that he had had oral
discussions with a Mr. Price, his field supervisor, from time
to time. Material submitted to the board by petitioner's
counsel in October 1951 showing petitioner then to be a
registered third-year medical student was forwarded to the
State Office, and a request to reopen petitioner's
classification was denied.
The United States Attorney wrote to petitioner in December,
1951 stating that he would be indicted unless he returned to
the United States by February, 1952; he returned a month
before that. He was ...