Coleman v. Tolson, 14702.

• Decision Date: 18 December 1970
• Docket Number: No. 14702.,14702.
• Citation: 435 F.2d 1062
• Parties: Burley COLEMAN, XXX-XX-XXXX, C-8-2-U.S.A.C.T.I., Ft. Bragg, N. C., Appellant, v. Lt. Gen. John J. TOLSON, Commanding General, Ft. Bragg, N. C., Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

435 F.2d 1062 (1970)

Burley COLEMAN, XXX-XX-XXXX, C-8-2-U.S.A.C.T.I., Ft. Bragg, N. C., Appellant, v. Lt. Gen. John J. TOLSON, Commanding General, Ft. Bragg, N. C., Appellee.

No. 14702.

United States Court of Appeals, Fourth Circuit.

December 18, 1970.

John H. Harmon, New Bern, N. C., on brief for appellant.

Warren H. Coolidge, U. S. Atty., and Richard J. Bryan, Asst. U. S. Atty., on brief for appellees.

Before BOREMAN, BRYAN and CRAVEN, Circuit Judges.

CRAVEN, Circuit Judge:

This is an appeal from the denial of Burley Coleman's petition for a writ of habeas corpus. He complains that he was inducted into the United States Army as the result of an unlawful reclassification by his local board from II-S to I-A. The district court concluded that Coleman was not "satisfactorily pursuing a full-time course of instruction" within the meaning of Selective Service Regulation 1622.25, 32 C.F.R. § 1622.25, and that the reclassification and subsequent induction was not unlawful and denied relief. We reverse.

Coleman entered Morgan State College in a four-year program on September 12, 1966. He was classified II-S on December 12, 1967. Morgan State College submitted a Student Certificate (SSS Form 109) to Coleman's local board on October 25, 1968. Although Coleman was then in his third "academic year" as defined by Selective Service Regulation 1622.25(b), the Student Certificate indicated that he was classified as a second-year student. The Certificate indicated further, however, that Coleman was still in his second year "due to administrative control," and that he would be able to obtain the credit needed for graduation in June 1970. In addition to the Student Certificate, the Registrar of Morgan State College, William W. Proctor, submitted to the board a letter which said in part:

It appears that certain male students who have matriculated in Morgan State College are experiencing difficulty in obtaining student deferment classification. For this reason we address this special communication to you requesting for the registrant special consideration for a possible deferment.

Because of administrative regulations, approximately one-half of the freshman or first-year class is required to pursue a minimum full-time credit load. This means that instead of the usual two semesters required for the completion of the first college year, three semesters are required. After two semesters, if the student is permitted to remain in school, his scholastic performance has given every indication that he will be able to complete all requirements within the normal four-year period.

We certify that the student named above Coleman was affected by this regulation. He has been enrolled as a full-time student since the date of matriculation, which was September 12, 1966. He is currently enrolled in the second college year. His scholastic performance to date has been satisfactory.

Despite this explanatory letter, appellant Coleman was classified I-A on November 13, 1968, and inducted into the Army on June 6, 1969.

College students who are "satisfactorily pursuing a full-time course of instruction" are entitled to deferment by statute. 50 App. U.S.C. § 456(h) (1). That statutory section empowers the President to prescribe rules and regulations for granting such deferments. Selective Service Regulation 1622.25, 32 C.F.R. § 1622.25, is the regulation implementing the statute. Subsection (c) of that regulation defines the phrase "satisfactorily pursuing a full-time course of instruction." It provides:

A student shall be deemed to be "satisfactorily pursuing a full-time course of instruction" when, during his academic year, he has earned, as a minimum, credits toward his degree which, when added to any credits earned during prior academic years, represent a proportion of the total number required to earn his degree at least equal to the proportion which the number of academic years completed bears to the normal number of years established by the school to obtain such degree. For example, a student pursuing a four-year course should have earned 25% of the credits required for his baccalaureate degree at the end of his first academic year, 50% at the end of his second academic year, and 75% at the end of his third academic year.

This section speaks affirmatively with respect to pro rata progress through a...