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September 29, 1970

Thomas M. VOLATILE, Commanding Officer, AFEES, and Secretary of Defense, the Pentagon, Arlington, Va.

Kraft, District Judge.

The opinion of the court was delivered by: KRAFT

Petitioner, inducted under selective service on September 2, 1970, seeks habeas corpus relief and challenges the legality of the induction order.

 The petitioner's selective service file discloses that he registered with his local draft board in 1964 and was initially classified I-A on October 8, 1964. Thereafter, petitioner informed his local board that he was a college student and was deferred until his graduation in June, 1967, when he was again classified I-A, on June 8, 1967.

 On September 6, 1967, petitioner was granted a personal appearance before the local board pursuant to his request for a hardship deferment, because of his father's poor health and need for petitioner's assistance in his business. The board retained the petitioner in the I-A status on September 6, 1967. Reclassification was sought by the petitioner on September 26, 1967, when he advised the local board, by letter, of his father's death on September 16, 1967. The local board, on October 12, 1967, reviewed the petitioner's file and again classified him I-A, but noted: "Will not classify him 3-A without his appearing again."

 By letter dated October 15, 1967, petitioner requested a personal appearance before the local board, and, in addition to requesting a hardship deferment, informed it that he had been accepted and registered as a per diem substitute teacher by the School District of Philadelphia on October 13, 1967.

 Petitioner executed a dependency questionnaire and was granted a personal appearance on November 8, 1967, at which he claimed a hardship for his mother and younger brother. He submitted financial information for himself, his brother (who was then a college student) and his mother. On November 8, 1967, the local board declined to reclassify petitioner and again classified him I-A. Upon appeal, the appeal board reclassified petitioner II-A (occupational deferment) on January 26, 1968 until June, 1968.

 Thereafter, on December 12, 1968, petitioner was again classified I-A. On January 13, 1969, the local board received a letter from petitioner, stating that he would "like an appeal." He advised the local board that his mother had purchased a home and that he contributed $100 every two weeks to assist his mother in paying the mortgage and to defray other expenses of daily life. He advised the local board as well that his brother also contributed to his mother's support. Petitioner requested a deferment for hardship. A personal appearance was granted before the local board on January 27, 1969. Petitioner and his mother appeared and furnished financial information to the local board. Petitioner also informed the local board that he was still employed as a substitute teacher. The board, on January 27, 1969, determined that no financial hardship existed and classified petitioner I-A. Additionally, the board held that petitioner's employment as a substitute teacher did not warrant a II-A classification. On appeal, the denial of a II-A classification was reversed by the appeal board on March 25, 1969 and the II-A classification was granted until September, 1969.

 On January 15, 1970, petitioner was re-classified I-A by the local board. Petitioner appealed on January 19, 1970. In a letter to the local board, he stated that he was then employed as a per diem substitute teacher at West Philadelphia High School. The appeal board affirmed the I-A classification on March 3, 1970.

 Thereafter, petitioner's mother and younger brother forwarded letters to the local board requesting reconsideration of petitioner's classification upon the ground of hardship. Mrs. Rochford advised the local board that Stephen contributed $200 monthly to the support of their home and that her younger son, Dennis, had accepted a regular army commission as a second lieutenant and was stationed in Germany. Dennis wrote to the local board on April 2, 1970 and confirmed his mother's representation that he was now a regular army second lieutenant stationed in Germany. He claimed a limited ability to contribute to his mother's support by means of a fixed allotment of $100 a month, and that petitioner was needed to settle problems that had arisen in conjunction with the settlement of his father's estate.

 On April 23, 1970, the local board reviewed petitioner's file and concluded "no change to either 3-A or 2-A Class * * *." Thereafter, on May 8, 1970, the local board forwarded petitioner's file to the state selective service headquarters and requested advice as to whether the local board's decision not to reopen petitioner's classification on dependency grounds was appropriate. The state headquarters "suggested" that further consideration was not required. On May 14, 1970, the local board mailed petitioner a notice that there would be no change in his I-A classification. The School District of Philadelphia was advised by the local board that, if petitioner was called for induction prior to the end of the semester, the district might request a postponement.

 On May 18, 1970, petitioner was ordered for induction on June 2, 1970. Thereafter, petitioner's mother telephoned the local board and the state headquarters which again reviewed petitioner's file. The School District of Philadelphia requested a postponement of the induction, which was granted until the July, 1970 call.

 Petitioner's mother requested a dependency questionnaire on June 2, 1970 and on June 18, 1970, petitioner's induction was postponed until August, 1970, to afford petitioner a personal interview before the local board. On June 30, 1970, the state headquarters requested the local board to forward the complete file to headquarters " after the local board has advised the subject registrant relative to hardship." (emphasis supplied).

 The state headquarters, on July 23, 1970, returned petitioner's file along with another registrant's and "requested" the local board to review the files "concurrently and advise this headquarters ...

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