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UNITED STATES EX REL. KAMESHKA v. NEFF

October 7, 1970

The UNITED STATES of America ex rel. Arthur KAMESHKA, Petitioner,
v.
Col. Donald F. NEFF, Commanding Officer, Armed Forces Examining and Entrance Station, Pittsburgh, Pennsylvania, and Stanley R. Resor, Secretary of the Army, Respondents


Weis, District Judge.


The opinion of the court was delivered by: WEIS

The Petitioner, Arthur Kameshka, is a duly registered pharmacist in the State of Pennsylvania. He has been inducted into the Armed Forces and now challenges the action of the Selective Service System in refusing to continue the occupational deferment which he had held for about two years. The petitioner was originally before this court seeking preinduction review *fn1" but his petition was dismissed on a jurisdictional basis without any finding on the merits of the case, albeit there was necessarily some consideration of the factual background.

 Kameshka is a registrant of Local Board No. 12, Pittsburgh, Pennsylvania. He was originally classified as II-S during the period of his study at the University of Pittsburgh School of Pharmacy. After completion of his scholastic career, he was classified I-A by the local board on June 6, 1968 but received a II-A *fn2" classification as a result of action by the Appeal Board on August 21, 1968. On March 27, 1969 the local board again classified the petitioner as I-A, which action was also reversed by the Appeal Board on June 25, 1969.

 On January 22, 1970, for the third time, the petitioner was classified I-A by the local board but, in a change of its previous position, the Appeal Board on April 15, 1970 concurred with the local board's classification. Following this, an appeal was taken by the Pennsylvania State Director of Selective Service to the President and on July 8, 1970, the National Selective Service Board affirmed the classification of I-A. The plaintiff was inducted into the Armed Forces on September 15, 1970 and thereafter filed this Petition for Writ of Habeas Corpus.

 At the evidentiary hearing the selective service record of the petitioner was admitted and the petitioner presented additional evidence bearing on the shortage of pharmacists and their importance to the nation's health.

 The petitioner has been actively working as a pharmacist since 1968 when he was first classified I-A by the local board. There is no dispute that he has worked long hours, as appears to be typical of those in this area who are engaged in that occupation. There is no doubt that there is a shortage of pharmacists and that the community could profitably utilize the services of more men trained in this calling.

 Pharmacists fulfill an important need in the community and it is possible that the petitioner's tour of duty in the Armed Forces may not be as profitable to the welfare of the nation as if he were permitted to remain as a civilian in the community. However, such a determination is entrusted by law to the local board. As phrased in the appropriate regulation, 1622.20:

 
"On the local board is placed the responsibility, under applicable rules and regulations, of deciding which men should be deferred because of their civilian activities. It is in the national interest and of paramount importance to our national security that civilian activities which are contributing to the national health, safety, or interest should be disrupted as little as possible, consistent with the fundamental purpose of the Military Selective Service Act of 1967."

 The appropriate guidelines to be utilized in granting deferments in an occupation identified with the maintenance of national health are set out in Regulations Nos. 1622.21 and 1622.23, which provide that deferments in Class II shall be for a period of one year or less; that at the expiration of the deferment period the classification is to be re-opened and the registrant is to be classified anew. A registrant may be granted a deferment in this category when all of the following three conditions exist:

 
1. The registrant is engaged in such activity;
 
2. He cannot be replaced because of a shortage of persons with his qualifications in the activity;
 
3. The removal of the registrant would cause a material loss of effectiveness in such activity.

 The local board has consistently denied the petitioner's claim for a II-A designation. It was only because the Appeal Board on two occasions disagreed with the local board that petitioner was not inducted some two years ago. There is, therefore, no basis for the inference that the petitioner was inducted only because his twenty-sixth birthday was at hand.

 A review of the material in the petitioner's selective service file shows that responsible individuals and representatives of professional organizations advised the local board of the scarcity of pharmacists in the community. However, we feel it is not without significance that a letter from one ...


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