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UNITED STATES EX REL. CAPUTO v. SHARP

July 12, 1968

UNITED STATES ex rel. Anthony J. CAPUTO, Jr.
v.
G. F. SHARP, Capt., U.S.N. Commanding Officer, U.S. Naval Station Brig, Philadelphia, Pa.



The opinion of the court was delivered by: WEINER

 WEINER, District Judge.

 Relator on this petition for a writ of habeas corpus contends that he was unlawfully inducted into the United States Marine Corps by his local board of the Selective Service System. Because we find that relator's induction was invalid, contravening as it did a regulation of the Selective Service System itself and thereby depriving relator of his liberty without the due process of law guaranteed him by the Fifth Amendment, we shall grant the writ for the reasons discussed below.

 A preliminary summary of the facts will be helpful. Relator originally enlisted in the Marine Corps Reserve Program on June 7, 1965. He served his six-month period of active duty, and became a member of the Ready Reserves on December 7, 1965. Between June 7, 1966 and February 9, 1967, he apparently missed 32 of the 60 drills he was required to attend. A Ready Reservist in his position was at that time permitted only four unexcused absences out of the 48 annual drills. On February 9, 1967, relator's Reserve unit certified him for priority induction to his local board on the ground of unsatisfactory service. On March 16, 1967, the local board ordered relator to report for induction. On March 23, 1967, the board had relator examined and found him to be IV-F. On August 22, 1967, relator was given a general discharge, and the following day was purportedly inducted into the regular Marine Corps.

 There seems little question that relator was delinquent in his attendance at required drills. His Reserve unit had two alternatives available to it at that time as a consequent remedy. It could either have ordered relator "without his consent to perform additional active duty for training for not more than 45 days," under 10 U.S.C. § 270(b) (1964), or it could have discharged him from the Reserves in order that his local board call him up for priority induction in a coordinated move. Either pattern was customary at the time; as recited above, it was the latter one to which the unit and the local board resorted.

 The fatal defect in this procedure in the instant case stems from relator's medical condition. His local board classified him IV-F on March 23, 1967, and he remained so classified on August 23, 1967, the date of his purported induction. The regulations promulgated under 50 U.S.C.App. §§ 460(b)(7), (c) (1964) defining Class IV-F are in pertinent part as follows:

 
In Class IV-F shall be placed any registrant who is found under applicable physical, mental, and moral standards to be not qualified for any service in the Armed Forces either currently or in time of war or national emergency declared by the Congress.

 32 C.F.R. § 1622.44(a) (1967).

 The proscription against military service for those classified IV-F appears both mandatory and absolute. The regulations of the Selective Service System promulgated under the Universal Military Training and Service Act of 1948, have, like all properly authorized administrative rules and regulations, the force and effect of law, see, e.g., Farmer v. Philadelphia Electric Co., 329 F.2d 3, 7 (3d Cir. 1964); United States v. Barnard, 255 F.2d 583, 589 (10th Cir.), cert. denied, 358 U.S. 919, 79 S. Ct. 287, 3 L. Ed. 2d 238 (1958). By the same token, it is axiomatic that "a valid administrative regulation binds the administrator himself equally with others," School District 2 Fractional v. United States, 229 F.2d 681, 686 (6th Cir. 1956), quoting United States v. Finn, 127 F. Supp. 158, 165 (S.D.Cal.1954) (Mathes, J.), aff'd as modified, 239 F.2d 679 (9th Cir. 1956).

 
(a) Notwithstanding any other provision of the regulations in this chapter, any registrant enlisted or appointed after October 4, 1961, in the Ready Reserve of any reserve component of the Armed Forces * * * and deferred [as relator had been while a reservist] * * * who fails to serve satisfactorily during his obligated period of service as a member of such Ready Reserve * * * shall be ordered to report for induction by the local board regardless of the class in which he is classified and without changing his classification.

 In the context in which this regulation applies, however, § 1621.8(a) could reasonably refer only to the Class I-C, in which is placed "[every] registrant who is a member of a reserve component of the armed forces * * *" 32 C.F.R. § 1622.12(d) such as was relator here, from which § 1621.8(a) makes it unnecessary to transfer registrant into Class I-A before induction. This appears simply to obviate excess bureaucratic reclassification, removing one step in the process of inducting medically fit delinquent reservists.

 Section 1631.8(a) cannot be reasonably said to permit even the priority induction of those properly classified as IV-F, or "not qualified for any service * * * either currently or in time of war or national emergency." It is understandable that the regulation focused upon priority induction of delinquent reservists would not have contemplated classes of registrants who are otherwise ineligible for active service, as reservists do not ordinarily fall within these groups. To interpret § 1631.8(a), however, to include a reservist found to be IV-F would not only be contrary to the terms of § 1622.44(a), but would also deprive relator of his constitutional right to due process of law by refusing him a "'fair and just' compliance with the provisions of the Act and the applicable regulations," United States v. Zasadni, 206 F. Supp. 318, 321 (W.D.Pa.1962).

 In accordance with the stipulation into which counsel entered on April 16, 1968 (document no. 6), we appointed an independent physician, Dr. Samuel Bellet, who examined relator in accordance with the appropriate Marine Corps standards communicated to him. Dr. Bellet diagnosed relator as having paroxysmal hypertension, and submitted that, in his opinion, relator "is not eligible for acceptance for full military duty" (document no. 7). This certainly seems to affirm the "basis in fact" required as sine qua non for the local board's jurisdiction to withstand judicial scrutiny, see, Military Selective Service Act of 1967, § 1(8)(c), 50 U.S.C.App. § 460(b)(3) ...


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