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June 16, 1970

LOCAL BOARD NUMBER 58 and Commanding Officer, Commander Thomas M. Volatile, Armed Forces Examining and Entrance Station and Secretary of Defense

Masterson, District Judge.

The opinion of the court was delivered by: MASTERSON

Presently before us is a petition for a Writ of Habeas Corpus.*The petitioner, David Jeffrey Kurjan, submitted to induction into the Armed Forces of the United States on November 7, 1969. On that day, after considering the verified petition, we issued an Order restraining the respondents and their agents from removing the petitioner from the jurisdiction of this Court. We further ordered the respondents to show cause why the Writ ought not issue and a hearing for this purpose was scheduled for November 17, 1969. As a result of this hearing, we preliminarily enjoined the respondents from removing the petitioner from our jurisdiction pending our further order. After reviewing the petitioner's Selective Service File, we make the following findings of fact and conclusions of law:


 The petitioner has been registered in the Selective Service System since December 31, 1962. He has received II-S student deferments which have allowed him to complete his undergraduate training at the University of Pennsylvania, from which he received a Bachelor's Degree in Electrical Engineering in May, 1967. The petitioner then embarked upon a course of graduate study at the Moore School of Electrical Engineering at the University of Pennsylvania. His II-S student deferment was continued until June 18, 1968, when he was reclassified I-A because of a change in the statute and regulations regarding graduate students.

 On July 15, 1968, The University of Pennsylvania requested that Kurjan be given a II-A classification (occupational deferment). The letter supporting the request indicated that Kurjan was a research assistant doing graduate work part-time while devoting the majority of his time to research and development. The project to which the petitioner was assigned was being carried out for the Electronics Command of the United States Army and involved research on improving the intelligibility of voice communications systems in helicopters. The time spent on the research carried no credits towards his Master's Degree but enabled Kurjan to receive a National Science Foundation fellowship, which carried a yearly stipend of $2,200 plus tuition. On the basis of this information, the Local Board reopened and considered anew Kurjan's I-A classification but decided to retain that classification.

 The petitioner was duly notified of this action and elected to exercise his right to a personal appearance before the Board. He appeared before the Board on October 7, 1968, and notified them that he had received his Master's Degree of Science in Engineering in August, 1968, and that he was now working towards his Ph. D. Kurjan also reported that he was working about 30 hours per week on the project, for which he was receiving credit towards his Ph. D. Apparently because they determined that Kurjan was not a full-time employee, the Board, without reopening, decided to retain his I-A classification. (See Notes of Personal Appearance before Local Board on October 7, 1968). Both Kurjan and the University of Pennsylvania appealed this ruling.

 The Local Board then sought an advisory opinion from the State Scientific Advisory Committee as to the "essential" nature of the petitioner's employment. *fn1" The Advisory Committee returned the file and requested further information, to wit, whether Kurjan was a graduate student. After being advised that Kurjan was pursuing a course of graduate study, *fn2" and after reviewing the Occupational Inquiry Form (SSSP-1674, dated December 2, 1968) which listed no salary being paid Kurjan for his research, the State Selective Service Headquarters, on February 13, 1969, returned the file to the Local Board without referring it to the Advisory Committee because State Headquarters had determined that "[This] man's occupation does not come within the purview of the Scientific Advisory Committee."

 The file was then sent to the Appeal Board which, on March 3, 1969, voted 3-1 to classify Kurjan I-A. After receiving notice of the Appeal Board's action, and prior to receiving his order to report for induction, the petitioner requested his superiors at the Moore School to change his status from that of a graduate trainee to a full-time salaried research assistant. On March 19, 1969, Kurjan received his orders to report for induction. *fn3" On April 1, 1969, the petitioner was notified by the Moore School that his request had been granted and that, as of that date, Kurjan was to be a salaried employee of the Moore School and no longer a graduate trainee receiving a stipend from the National Science Foundation. Kurjan wrote his Board on April 3, 1969, timely advising them of the change in his status and requesting a personal interview to present the new information. The interview was held on April 17, 1969, at which time Kurjan told the Board that he was now a salaried employee. The petitioner also presented a letter, dated April 16, 1969, from Dr. Fred Haber, an Associate Professor at the Moore School, which confirmed the change in Kurjan's status as well as noting that Kurjan was solely responsible for the Avionics project, that he "would be very difficult to replace, and there would be a substantial loss (6 months to a year) in the development of the project." On the basis of these new facts, both Kurjan and his employer requested that the classification be reopened and that the petitioner be granted an occupational deferment (II-A).

 On April 25, 1969, the Local Board sent the file to the State Board and requested a "decision or ruling" from them on the basis of the new information presented at the April 17, 1969 interview. On April 28, 1969, the State Board replied: "We concur with the I-A classification given this registrant by the local board and appeal board. In our opinion, this registrant is still primarily a graduate student and the induction order should remain in effect * * *" (emphasis supplied).

 On May 20, 1969, by a vote of 4-0, the Local Board determined that the "information submitted does not warrant reopening classification." However, the Board felt that, " before final decision ", *fn4" a recommendation from the State Scientific Advisory Committee should be obtained as well as a statement from the University of Pennsylvania concerning the petitioner's salary. In addition, the Board mailed another Occupational Inquiry Form to the University and obtained a further postponement of induction.

 On May 21, 1969, the University informed the Board that Kurjan's annual salary was $4,000.00, with the explanation that "this person's graduate program is taken into consideration in determination of his salary and * * * the salary does not completely reflect the stature and importance of his work." The Occupational Inquiry Form *fn5" merely stated that Kurjan was "involved" in acoustical research relating to military helicopters and made no mention of his salary. After reviewing this form and related data, the Scientific Advisory Committee, on July 22, 1969, recommended that petitioner's occupation be designated "non-essential." On July 25, 1969, the Local Board determined that the information submitted did not warrant reopening. The minutes of that meeting also reflect that the Board agreed with the recommendation of the Scientific Advisory Committee.

 On July 30, 1969, the Board again postponed induction and sent yet another Occupational Inquiry Form to the University of Pennsylvania. This Form, which was returned to the Board on August 5, 1969, was far more thorough and emphatic than the one previously submitted. For example, it stated that Kurjan had "sole" responsibility for the project and possessed unique talents that made him currently irreplaceable. It is repeated that Kurjan is devoting full time to the project and it is also stated that his salary has been raised to $7,000 per year. The Local Board then sent the file to the Scientific Advisory Committee. Presented with this new information, the Scientific Advisory Committee, on September 18, 1969, declared that Kurjan's employment was "essential" and recommended a twelve month deferment. However, on October 21, 1969, the Local Board declined to follow this recommendation and by a vote of 4-1 decided against reopening the classification. In a letter from the Board, dated October 22, 1969, Kurjan was advised that the Local Board had reviewed and considered the entire file "and they feel that there is no change in your status." (emphasis supplied). Kurjan was later notified to report for induction on November 7, 1969, and he so complied. Then followed the instant petition for a Writ of Habeas Corpus.


 Petitioner's claims are that (1) assuming that the Board did not in fact reopen and consider anew his classification on May 20, 1969 and thereafter, *fn6" such failure to reopen was unlawful and denied the petitioner his right to due process; and alternatively, (2) the Local Board, by its actions, did in fact reopen his classification, a consequence of which petitioner was entitled to a personal appearance and a right of appeal, and that the denial ...

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