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Nowak v. Major General Collins

decided: February 16, 1971.

HENRY A. NOWAK, APPELLANT,
v.
MAJOR GENERAL COLLINS, AS COMMANDING GENERAL, UNITED STATES ARMY, FORT DIX, NEW JERSEY, AND SELECTIVE SERVICE SYSTEM, LOCAL BOARD NO. 85, BUFFALO, NEW YORK



Aldisert, Adams and Rosenn, Circuit Judges.

Author: Rosenn

Opinion OF THE COURT

ROSENN, Circuit Judge.

This is an appeal from an Order of the District Court of New Jersey, dated February 26, 1970, dismissing appellant's petition for a writ of habeas corpus. In his petition, appellant seeks release from the United States Army, into which he was inducted on August 25, 1969. Our disposition of appellant's claim that his induction order was invalid turns on the resolution of two issues, both related to the I-S(c) deferment*fn1 to which appellant claims he was entitled at the time the induction order was originally issued:

(1) whether having received a II-S deferment after June 30, 1967 statutorily barred appellant from receiving a I-S(c) deferment following the issuance of the induction order; and

(2) whether appellant, at the time the induction order was issued, met the requirements for a I-S(c) deferment that he be "satisfactorily pursuing a full-time course of instruction".

The relevant facts have been stipulated. Appellant received his undergraduate degree in June 1964. He attended medical school during the 1964-65 school year. In September 1965 he enrolled in a master's program in education at the University of Buffalo, concentrating in the social sciences. In December 1965 the state Appeals Board granted him a II-S deferment. In current information questionnaires*fn2 completed in August 1965, March 1966, and June 1966, appellant informed his local board that his studies would be completed by January 1967. He received subsequent II-S classifications from his local board in December 1966 and December 1967, the latter of which he retained until June 1968. In the meantime, the estimated date of his graduation regressed, through several revisions, from January 1967 to January 1969. This substantial delay resulted from additional educational requirements for state certification, of which appellant had only gradually become aware.*fn3

On June 19, 1968, appellant's local board classified him I-A. On July 17, 1968, appellant sent the board a letter requesting a II-S deferment and setting out in some detail the requirements for the provisional certificate, the undergraduate history major equivalent, and the master's program itself.

On September 19, 1968, the University advised the local board by means of an SSS Form 103 ("Graduate or Professional College Student Certificate") that appellant would graduate in June, 1969.*fn4

On December 8, 1968, the appellant sent a letter to the local board requesting a hardship deferment. On December 19, 1968, the board denied appellant's request and ordered him to report for induction on January 8, 1969.

On January 3, 1969, appellant requested a postponement of induction. On January 9, 1969, the board ordered him to report on February 18, 1969. On February 4, 1969, appellant sent a letter to the local board requesting a postponement of his induction until the summer of 1969. In the letter, appellant referred the board to his earlier letter of July 17, 1968 and further explained that, although his course of study was taking four years to complete, the delay was made necessary by unavoidable course requirements totalling ninety-six hours (thirty-two for the master's program itself, thirty-six for the provisional certificate, and twenty-eight for his history prerequisites). In a letter dated February 11, 1969, appellant augmented his request for a postponement with a request that he be granted a I-S(c) deferment (which would cancel, not merely postpone, the induction order) for the remainder of the school year.

On February 14, 1969, the local board postponed appellant's induction to allow the State Director an opportunity to review appellant's file. On April 9, 1969, appellant celebrated his twenty-sixth birthday. On July 17, 1969, petitioner was ordered to report for induction on August 20, 1969. Following a number of delays and further requests for deferment on hardship and medical grounds, appellant finally submitted to induction on August 25, 1969. He filed a petition for a writ of habeas corpus on October 24, 1969. It is from the dismissal of this petition that he appeals.

If appellant is correct in his assertion that he was entitled to a I-S(c) deferment when the induction order was initially issued, then his induction was invalid, since it would have been accomplished pursuant to an induction order which should have been cancelled rather than merely postponed.*fn5

At oral argument the government withdrew its contention that appellant was barred from receiving a I-S(c) deferment by his receipt, after June 30, 1967, of a graduate II-S deferment. It is now clear that its earlier view of the law was incorrect. The ...


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