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ELEEY v. VOLATILE

February 16, 1971

Michael F. ELEEY
v.
Thomas M. VOLATILE, Commanding Officer, and Secretary of Defense


Fullam, District Judge.


The opinion of the court was delivered by: FULLAM

FULLAM, District Judge.

 Petitioner submitted to induction into the United States Armed Forces on November 25, 1970. He immediately filed in this Court a petition for a writ of habeas corpus. A temporary restraining order was issued preventing petitioner's removal from the jurisdiction, pending the disposition of the petition. A hearing on the petition was held January 8, 1971 at which counsel stipulated to the introduction of petitioner's selective service file as the sole evidence in the case.

 Petitioner's file reveals that he was born on August 28, 1945 and that he registered with Local Board No. 80 in Niagara Falls, New York on September 5, 1963. He was originally classified II-S, and remained in that category until he was classified I-A on July 2, 1968. From October 8, 1968 until June 30, 1969, petitioner was classified II-A, on the basis of his work at the Annenberg School of Communications of the University of Pennsylvania as Staff Coordinator of a project commissioned by the National Commission on Causes and Prevention of Violence to investigate the effects of the portrayal of violence on television.

 On August 5, 1969, petitioner was again classified II-A until February 10, 1970 on the basis of his continued work at the Annenberg School.

 On March 12, 1970, the Scientific Advisory Committee of the Pennsylvania Headquarters of the Selective Service System requested petitioner's employer, Dean George Gerbner of the Annenberg School of Communications, to complete and return an "Occupational Inquiry Form." This form was designed to elicit information about the nature of a registrant's work and the reasons why the work should be considered "necessary to the national health, safety, or interest."

 On April 23, 1970, petitioner's Local Board received notice from the Scientific Advisory Committee that it considered petitioner's work "nonessential." On May 6, 1970, petitioner was classified I-A. Though petitioner exhausted his administrative remedies in challenging his classification, he remained I-A, and on October 6, 1970, was ordered to report for induction.

 Petitioner contends that his I-A classification was invalid for two reasons. The essence of the first contention is that since petitioner's Local Board classified him II-A on the basis of his employment, and his employment situation had not changed, the Local Board had no basis in fact for changing his classification to I-A. This contention is founded upon a misapprehension as to when the classification of a registrant in Class II-A may be reopened and as to the kinds of "facts" the local board may consider in determining a registrant's eligibility for Class II-A.

 The regulations provide:

 
"(a) Class II deferments shall be for a period of one year or less. . . .
 
"(b) At the expiration of the period of a registrant's deferment in Class II, his classification shall be reopened and he shall be classified anew in the manner provided in Part 1625 of this chapter. . . ." 32 CFR § 1622.21 (1970).

 Subsection 11 of Part 1625 provides:

 
"When the local board reopens the registrant's classification, it shall consider the new information which it has received and shall again classify the registrant as if he had never before been classified. . . ." 32 CFR § 1625.11 (1970).

 It is plain from these regulations that petitioner's Local Board was required to reopen his classification whether or not his employment situation had changed and, in addition, the Board was required to reconsider the entire ...


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