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CALE v. VOLATILE

April 19, 1971

William G. CALE, Jr.,
v.
Thomas N. VOLATILE, Commanding Officer, AFEES, and Secretary of Defense


Wood, District Judge.


The opinion of the court was delivered by: WOOD

WOOD, District Judge.

 Petitioner, William G. Cale, Jr., was inducted into the Armed Forces on November 3, 1970. On that same day he filed this petition for a writ of habeas corpus, seeking his release from the Army on the ground that the Order under which he was inducted was issued in violation of the Selective Service Act of 1967, 50 U.S.C. App. § 451 et seq. and the regulations promulgated pursuant to the Act. Our colleague, the Honorable C. William Kraft, Jr., issued a temporary restraining order preventing respondents from removing petitioner from the jurisdiction of this Court. The parties agreed by stipulation that the restraining order would remain in effect pending adjudication of petitioner's case.

 In June, 1969, petitioner was graduated from Pennsylvania State University. Prior to his graduation he had been accepted by the University of Georgia as a Ph. D candidate in the ecology department. On July 15, 1969, Local Board No. 58 reclassified petitioner I-A and on August 5, he requested, by letter, a personal appearance before the local board. Petitioner subsequently enrolled in the University of Georgia.

 On January 21, 1970, the local board mailed to petitioner's home notice that his personal appearance was scheduled for January 27. Petitioner's parents received the notice on January 22 and telephoned petitioner in Georgia to advise him of it. On the following day he wrote to the local board, informing them that he would be unable to appear before the board and requested it to consider instead the information contained in his letter. Petitioner's letter stated that he was attending graduate school and teaching undergraduates part time, as well as conducting research under a fellowship from the Atomic Energy Commission. On the basis of these facts, petitioner requested an occupational deferment (II-A). He also advised the board that he had requested several of his colleagues to submit letters supporting his position. The local board received petitioner's letter on January 26 and on the following day met to consider his classification. The board voted 3-0 to retain him in class I-A. The letters from petitioner's colleagues arrived on January 28 and February 2. Petitioner appealed the board's classification, but the Appeal Board again classified him I-A. Following several postponements, he submitted to induction on November 3.

 For reasons hereinafter stated, we conclude that the order under which petitioner was inducted was valid and his petition for a writ of habeas corpus will be denied.

 Initially we must point out that, while petitioner's January 23 letter to Local Board No. 58 cited his status as "a student in a field of high priority in the national interest" as well as his position as a part-time teacher, he does not now claim that he is entitled to a II-A deferment on the basis of preparation for critical skills and other essential occupations under § 1622.22(b) of the Regulations, 32 C.F.R. § 1622.22(b). Nor does he claim that he should be deferred on the basis of his activity in research under § 1622.22(a). Rather, his sole contention is that he should have been deferred on the basis of his status as a part-time teacher.

 Petitioner's allegation that LBM 96 was invalid is without merit. Section 6(h)(2) of the Selective Service Act of 1967, 50 U.S.C. App. § 456(h)(2), authorizes the President, under such rules and regulations as he may prescribe, to provide for the deferment of persons whose employment is found to be necessary to the maintenance of the national health, safety, or interest. Section 4(g) of the Act, 50 U.S.C. App. § 454(g), provides that:

 
"The National Security Council shall periodically advise the Director of the Selective Service System * * * with respect to the identification, selection, and deferment of needed professional and scientific personnel and those engaged in, and preparing for, critical skills and other essential occupations."

 Promulgated pursuant to these provisions of the Act, Section 1622.23(c) of the Regulations provides that:

 
"The Director of Selective Service may from time to time, upon the advice of the National Security Council, identify needed professional and scientific personnel and those engaged in and preparing for critical skills and other essential occupations."

 On February 15, 1968, the National Security Council submitted to the Director of Selective Service a "Memorandum of Advice Respecting Occupational and Graduate School Deferments." In this memorandum the Council advised that deferments based on the lists of essential activities and critical occupations should be suspended and that student deferments for graduate students should not be extended beyond the fields of medicine, dentistry and the allied medical specialties. On April 19, 1968, the Director of Selective Service issued LBM 95 which adopted the recommendations of the Council. However, discretion was reposed with the local boards to grant occupational deferments on an individual basis upon a showing of essential community need. *fn1" Thereafter, on April 25, a measure of that discretion was withdrawn by the issuance of LBM 96, here in question, which provided that the boards were no longer given authority to grant occupational deferments to full-time graduate students who were part-time teachers.

 Clearly the action of the Director in issuing LBM 96 was authorized by the Act and the Regulations. Given the authority, upon advice from the National Security Council, to identify needed personnel and those engaged in critical occupations, the Director here determined that graduate students were ...


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