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UNITED STATES EX REL. GOLDSTEIN v. MCNAMARA

July 20, 1967

UNITED STATES of America ex rel. Fred GOLDSTEIN, Petitioner,
v.
Robert S. McNAMARA, Secretary of Defense, Stanley R. Resor, Secretary of the Army, and CDR Edward O'Malley, USNR, Officer-in-Charge Armed Forces Examining & Induction Station, Respondents



The opinion of the court was delivered by: WOOD

 WOOD, District Judge.

 This is a petition for a writ of habeas corpus by a former reservist *fn1" who was inducted into the United States Army on July 10, 1967 for alleged failure to perform his Reserve duties. Petitioner claims the order to induct him is void because the certification on which the order is based is arbitrary and unlawful in that the army regulations 135-90 *fn2" are illegal for various reasons, the regulations themselves were not complied with, the certification of his unsatisfactory performance was motivated by his officer's personal dislike of him and finally that the relevant section of the Universal Military Training Act is unconstitutional.

 Private Goldstein filed a civil action, number 42979 in this Court seeking to enjoin his induction. A hearing was held before Judge Joseph S. Lord, III on June 27, 1967. Judge Joseph Lord dismissed the complaint for lack of jurisdiction and in the alternative entered judgment in favor of defendants on the merits. The United States Court of Appeals for the Third Circuit, concluding that the District Court lacked jurisdiction, on July 5, 1967 denied a motion for supersedeas and ordered that the cause be dismissed without prejudice to any action that Goldstein might file after his induction into the armed services as a soldier on active duty.

 Goldstein was a member of the United States Army Reserve attached to Company C, 157th Support Battalion. His commanding officer on May 19, 1967 requested advice from the Commanding General of XXI Army Corps regarding petitioner. Lt. Fossett wrote that Goldstein had missed seven meetings, had performed unsatisfactorily in others and had refused to accept official certified mail. The Corps apparently advised him that Goldstein could be ordered for priority induction. He was then certified to the Selective Service Board for priority induction and was actually inducted on July 10, 1967.

 The case was processed through the normal channels of the XXI Army Corps by examining the file held by the unit but no investigation independent of this was made. No medical inquiries were made to determine whether submitted excuses were valid. The matter was left in the discretion of Lt. Fossett.

 Relator still has a 1 D classification according to his Local Board, which acts only as an agent to the Reserves in these matters. The Board is forbidden to reclassify or reopen the case. The order to report is automatic once the certification from the Reserves has been received.

 FINDINGS OF FACT

 1. Relator enlisted in the United States Army Reserve on March 23, 1964 for a period of six years and served on active duty from June 8, 1964 to October 17, 1964.

 2. Relator was required to perform 45 days of active duty from July 12, 1966 to September 20, 1966 ostensibly for failing to attend the required amount of drills.

 3. All reservists are required to attend 48 paid drills a year and 15 days of summer training. In Goldstein's unit, 4 drills were held one weekend of each month. In the event he could not attend a drill, an equivalent training period was required.

 4. Relator between September, 1966 and May, 1967, inclusive, had seven unexcused absences. Although he submitted medical excuses for his absences, the Commanding Officer refused to accept them. No hearing was given to Goldstein nor was any warning given him that Lieutenant Fossett was considering him for induction nor was Goldstein aware that his excuses were unacceptable.

 5. On May 10, 1967, relator reported late for assembly at the designated place. In violation of orders, he used private transportation to Fort Dix, since the Army transport had already departed. ...


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