438 F.2d 271 (6th Cir. 1970), 20292, Winfield v. Riebel

Docket Nº20292.
Citation438 F.2d 271
Party NameJames Eros WINFIELD, Petitioner-Appellant, v. Major John C. RIEBEL, United States Army Commanding Officer, Armed Forces Examining and Entrance Station, Memphis, Tennessee, Respondent-Appellee.
Case DateDecember 24, 1970
CourtUnited States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 271

438 F.2d 271 (6th Cir. 1970)

James Eros WINFIELD, Petitioner-Appellant,

v.

Major John C. RIEBEL, United States Army Commanding Officer, Armed Forces Examining and Entrance Station, Memphis, Tennessee, Respondent-Appellee.

No. 20292.

United States Court of Appeals, Sixth Circuit.

December 24, 1970

Rehearing Denied Feb. 18, 1971.

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Michael B. Trister, Washington, D.C. (W. J. Michael Cody, Ronold S. Borod, Memphis, Tenn., Benjamin E. Smith, New Orleans, La., on the brief), for appellant.

William A. McTighe, Jr., Memphis, Tenn. (Thomas F. Turley, Jr., U.S. Atty., J. N. Raines, Asst. U.S. Atty., Memphis, Tenn., on the brief), for appellee.

Before CELEBREZZE, PECK and BROOKS, Circuit Judges.

PECK, Circuit Judge.

The principal issue presented by this appeal is whether during the academic year 1968-69 petitioner-appellant Winfield was entitled to a I-S classification under § 6(i)(2) of the Military Selective Service Act of 1967, 50 U.S.C. App. § 456(i)(2). Under a second issue, the appellant contends that his local draft board erred in refusing to reopen his classification as provided by Part 1625 of the Selective Service Regulations, 32 C.F.R. § 1625.1-.4, . 11-.14, when he had requested to be reclassified on the ground of hardship.

The facts relating to the above issues are not in dispute. Following appellant's graduation from high school, he attended Morris Brown College in Atlanta, Georgia, and graduated with a baccalaureate degree in May, 1967. During each of his years at Morris Brown College, appellant was classified II-S (discretionary undergraduate deferment) by Local Board No. 81 in Vicksburg, Mississippi. For the academic year 1967-68, appellant was enrolled at the University of Mississippi Law School and was given a II-S classification by his local board under authority of the President's Executive Order No. 11360, as provided in 32 C.F.R. § 1622.26(b). The President's Order became effective shortly after the passage of the Selective Service Act of 1967, 50 U.S.C. App. § 451-473 and under its provisions a one-year deferment was granted to those students enrolled in their first year of graduate school during the 1967-68 school year. 1 The Executive Order II-S classification expired on June 13, 1968 for appellant and he was reclassified I-A by his local board.

Appellant Winfield then appealed his I-A classification, claiming he was entitled to a hardship deferment. His local board conducted an investigation to determine the validity of his claim and asked the Public Welfare Agency in Vicksburg for information relating to the case. On July 11, 1968, the report of the Welfare Agency was submitted stating that the appellant's mother, Mrs. Gertrude Green, had been contacted and had informed the agency that appellant never sent any money home for the support of the family, and that he had written her that he was telling the Selective Service Board that he supported his brothers and sisters in order to avoid being drafted. Based on this and other information, the local board denied the appellant's request for a hardship classification. On August 15, 1968, he was

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classified I-A. He appealed the local board's decision to the Mississippi State Headquarters and on November 19, 1968, the Mississippi Appeal Board classified the appellant I-A by a vote of three to zero (3-0).

Meanwhile, appellant had returned to the University of Mississippi Law School for the school year 1968-69. On March 5, 1969, he was given his pre-induction physical examination and was found qualified for induction. On April 9, 1969, he was mailed his order to report for induction on April 24, 1969. Attached to the front of this order was a statement that if he desired a postponement of induction until the end of the current semester to advise the local board and the postponement would be granted. On April 11, 1969, he requested his induction be postponed and the State Headquarters on April 16, 1969, authorized the postponement until June 1, 1969. Following this appellant attempted to be reclassified, claiming he was physically ineligible for induction. During the period from April 13, 1969, to July 31, 1969, he received a medical interview, was given another physical examination and had his complete medical record reviewed by United States Army physicians. All of the findings concluded that the appellant was medically qualified for induction.

On June 12, 1969, appellant's Selective Service file was sent to him for his personal review. Appellant claims that it was from his Selective Service file that he learned for the first time of the statements made by his mother to the Welfare Agency with regard to his hardship classification. On July 9, 1969, appellant's mother sent a letter to the local board requesting that appellant's hardship claim be reopened for the reason that the original report of the Welfare Agency was erroneous. The local board contacted the Welfare Agency and they confirmed the accuracy of their report. Accordingly, the local board denied Mrs. Green's request and shortly thereafter she wrote a second letter offering to present proof of her claim.

On July 28, 1969, Mrs. Green was advised that the local board would receive her new proof and the induction was again postponed. Appellant, Mrs. Green and certain members of the Welfare Agency were then interviewed by the local board and it received money orders, receipts and checks, which appellant produced to prove his contributions to the family. On August 8, the local board entered a summary of the interviews in appellant's file and advised him that his classification would not be reopened. Appellant responded with a letter to the local board stating he felt he had been denied statutory rights in that the hearing held before the local board constituted a reopening of his case and a cancellation of his induction order. The local board then advised him that his file had not been reopened and that he was to report for induction as ordered. On September 4, 1969, the appellant was inducted into the United States Army at the Armed Forces Examining and Entrance Station in Memphis, Tennessee.

Some ten days prior to his induction, appellant abandoned his prolonged struggle with the local board and filed a motion for preliminary injunction against his induction in the District Court for the Northern District of Mississippi. The motion was denied and appellant appealed to the Fifth Circuit Court of Appeals. While that action was pending, appellant filed a petition for writ of habeas corpus in the District Court for the Western District of Tennessee on September 4, 1969, the date on which he was inducted. That court stayed a decision on the writ until the appeal in the Fifth Circuit was decided. Appellant then moved for and was granted a voluntary dismissal of his action in the Fifth Circuit. The Tennessee District Court then considered appellant's case on its merits and on December 4, 1969, issued a memorandum decision and order denying appellant's petition. We affirm the denial by the District Court for the reasons stated herein.

With regard to the first issue on appeal, appellant argues that he was entitled

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to a I-S deferment under the Selective Service Act of 1967 for the school year 1968-69 and that he was prejudiced when the local board denied him that classification. 2 His argument under the Act relies upon an interpretation of two of its provisions, § 6(h)(2), 50 U.S.C. App. § 456(h)(2) and § 6(i)(2), 50 U.S.C. App. § 456(i)(2) and the parties agree that appellant's right to a I-S classification turns solely on a proper reading of these two provisions. 3 To date, much litigation has arisen over this question. 4 However, the question has never before been decided by this court.

Under § 6(i)(2), any person who is enrolled as a full-time graduate student 5 during the current academic year and is presently under an order to report for induction is entitled to receive a I-S classification which enables him to be deferred:

'(A) Until the end of such academic year, or (B) until he ceases satisfactorily to pursue such course of instruction, whichever is the earlier: Provided, * * *.'

Section 6(i)(2) then sets out three provisos, any one which, if applicable to the graduate student under consideration, precludes him from receiving a I-S classification under that section. The provisos are:

'(first proviso) that any person who has heretofore had his induction postponed under the provisions of section 6(i)(2) of the Selective Service Act of 1948; (second proviso) or any person who has heretofore been deferred as a student under section 6(h) of such Act; (third proviso) or any person who hereafter is deferred under the provision of this subsection, shall not be...

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