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TIPPO v. COMMANDING OFFICER

March 29, 1971

John B. TIPPO
v.
COMMANDING OFFICER, Commander Thomas M. Volatile Armed Forces Examining & Entrance Station


Troutman, District Judge.


The opinion of the court was delivered by: TROUTMAN

TROUTMAN, District Judge.

 Petitioner submitted to induction into the Army on December 30, 1970, and now asks that we grant a writ of habeas corpus and order his discharge from the armed forces. Petitioner raises two grounds in support of his petition, namely, (1) that his local draft board failed to state any reasons for denial of his conscientious objector claim and that such denial is without a basis in fact and (2) that his local draft board was illegally constituted in that two of its five members were not residents of the area encompassed by his local board at the time he was classified.

 An evidentiary hearing has been held and the issues have been thoroughly briefed and argued. Petitioner's selective service file discloses the following material facts:

 Petitioner was first ordered to report for induction into the Army on April 14, 1969. Previously, he had been granted 2-S student deferments while he attended Missouri Valley College pursuing an undergraduate degree in sociology. On April 16, 1969, the local board, at petitioner's request, cancelled the outstanding order to report and reclassified him 1-S(C) to permit him to complete his last semester of college. On November 18, 1969, after the expiration of the college semester, petitioner was again classified 1A by the board. On December 11, 1969, petitioner acknowledged receipt of his new classification by letter and requested the Board to grant him a personal appearance on the ground that he was a conscientious objector. In the same letter, he requested the Board to send him the necessary SSS-150 conscientious objector form. The Board mailed petitioner the requested SSS-150 form on December 15, 1969. However, the completed form was not returned to the Board. No personal appearance was had at this time.

 In February of 1970, petitioner advised the Board of his enrollment in graduate school at the University of Delaware as a candidate for a master's degree in speech. He advised that he planned to graduate in June, 1971.

 Petitioner's file was forwarded to the Delaware State Selective Service headquarters which advised the local board to cancel the outstanding induction orders and to consider petitioner's conscientious objector claim after a personal appearance. The orders were cancelled on March 25, 1970.

 Petitioner thereafter submitted a completed form SSS-150 along with several letters in support of his conscientious objector petition which attested to the strength of his beliefs. The completed form SSS-150 along with the accompanying letters and additional letters furnished by petitioner, make out a prima facie case for conscientious objector classification. *fn1" On May 12, 1970, petitioner personally appeared before the Board and after meeting with him, the Board, on the same day, classified petitioner, by a vote of 3-0, 1A. The Board stated no reasons for denial of petitioner's conscientious objector claim. On August 10, 1970, the State Appeal Board affirmed and continued petitioner's 1A classification.

 After this appeal was denied, petitioner, on September 1, 1970, enrolled for another semester of graduate study at the University of Delaware. He also signed a contract with the school as a graduate assistant. The local board was not advised of this fact until September 25, 1970. This was after petitioner had been ordered to report for induction for the third time. (September 18, 1970). Petitioner requested cancellation of this induction order. The State Director, although not unhesitatingly, granted petitioner's latest request and postponed the scheduled induction until December 30, 1970, to allow petitioner to finish the school semester he had already started. *fn2" On December 30, 1970, petitioner presented himself at the induction station and submitted to induction, and at the same time, his attorney filed a petition for a temporary restraining order and writ of habeas corpus, which is presently before the Court.

 The Government has stipulated to the fact that two of the five members of petitioner's local draft board, Local Board No. 5 of Wilmington, Delaware, are residents of the county, but not of the area in which the local board is located.

 Petitioner contends, relying on Scott v. Commanding Officer, 431 F.2d 1132 (3rd Cir. 1970) and United States v. Broyles, 423 F.2d 1299 (4th Cir. 1970), that his classification which resulted in his reporting for induction was invalid because his local board failed to state its reasons for denying his conscientious objector claim. Petitioner contends that the Board's failure to disclose its reasons denied him the right to an effective administrative appeal.

  The Government, on the other hand, contends first that petitioner's classification does not fall within the purview of Scott because (1) Scott is factually distinguishable from the instant case in that Scott dealt with a post-induction order -- "crystallization" *fn3" and (2) in Scott there was nothing in the petitioner's selective service file to cast doubt upon his sincerity, whereas here petitioner's file on its face demonstrates adequate bases in fact concerning sincerity to support the local board's action.

 Additionally, the Government contends that the Scott case should not be retroactively applied to an administrative proceeding which took place a full four months ...


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