Corrigan v. Secretary of Army, 14038.

• Decision Date: 05 March 1954
• Docket Number: No. 14038.,14038.
• Citation: 211 F.2d 293
• Parties: CORRIGAN v. SECRETARY OF ARMY et al.
• Court: U.S. Court of Appeals — Ninth Circuit

211 F.2d 293 (1954)

CORRIGAN v. SECRETARY OF ARMY et al.

No. 14038.

United States Court of Appeals Ninth Circuit.

March 5, 1954.

J. B. Tietz, Los Angeles, Cal., for appellant.

Laughlin E. Waters, U. S. Atty., Max F. Deutz, Asst. U. S. Atty., and Clyde C. Downing, Asst. U. S. Atty., Los Angeles, Cal., for appellees.

Before STEPHENS, BONE, and POPE, Circuit Judges.

STEPHENS, Circuit Judge.

Ronald J. Corrigan, hereinafter called "petitioner", upon relation of his mother, through a petition for the issuance of the writ of habeas corpus, seeks his release from restraint of the United States Army officers who hold him as a member of the United States Armed Services. A hearing was had on the petition, the return thereto and an order to show cause pursuant to stipulation that the return should be considered as a traverse and that the proceedings should have the same force and effect that the issuance of the writ would have had, had it issued and had the hearing been held thereon. However, petitioner was present throughout the proceedings. The court declined to order petitioner's release and instead dismissed the petition. Petitioner appealed.

The issue of fact is whether petitioner was ever inducted into the Service.

On the 15th day of April, 1953, petitioner, having been regularly processed through the Selective Service law, 50 U.S.C.A.Appendix, § 451 et seq., and declared a Selectee with the A-1 classification, was, with about fifty Selectees, taken to a room around 9:00 A. M. where he was given physical and psychological examinations and near the middle of the day, the fifty Selectees were directed to take places in folding chairs which had been placed out in the room. The chairs occupied a space about twelve by eighteen feet in rows twelve inches apart with a center aisle the width of a chair. Petitioner was in the rear row.

Captain Earl S. Beydler entered the room and gave them a short orientation talk and then addressed them as follows: "You are about to be inducted into the Armed Services of the United States. In just a moment I will ask you to stand and I will call off each of your names. As I call your name I want you to answer `present' and to take one step forward. The step forward will constitute your induction into the Armed Services of the United States — into the Army."¹ The call was completed and the men were given the accustomed oath. Petitioner claims that he did not take a step forward nor did he raise his hand and take the oath. However, he made no protest at the time of the ceremony.

It is not contended that either the step forward or the taking or giving of the oath is required by the Selective Service Act as necessary to induction. As said in Billings v. Truesdell, 1944, 321 U.S. 542, 559, 64 S.Ct. 737, 746, 88 L.Ed. 917; "a selectee becomes `actually inducted' within the meaning of § 11 of the Act² when in obedience to the order of his board and after the Army has found him acceptable for service he undergoes whatever ceremony or requirements of admission the War Department has prescribed." Therefore, since the selectee is subject to civil authority until the moment of completion of the induction, at which moment he becomes subject to military authority, it is highly important that such moment should be marked with certainty. See Billings v. Truesdell, 1944, 321 U.S. 542, 64 S.Ct. 737, 88 L.Ed. 917.

For a time the oath marked the dividing line between the civilian and military status, but difficulties and uncertainties arose as to whether, in fact, the selectee had taken the oath. See our opinion in Lawrence v. Yost, 9 Cir., 1946, en banc, 157 F.2d 44. Thereafter, the regulation (Army Special Regulation No. 615-180-1, paragraph 23), providing for the step forward, was promulgated.

However, one may emerge from a selectee to a soldier without taking the step forward; that is, by conduct consistent with the soldier status;³ but the fact of the step forward, whether or not it was taken, is of high importance in this case. As to that issue of fact, it is claimed by petitioner that it was impossible for the men, other than those in the front row to step forward and the physical set-up and the testimony practically demonstrate the truth of the claim. The inducting Captain testified in answer to a question as to space, "There is space, not much." "Q. You mean he could shuffle? A. Correct."

At no time does the inducting Captain claim that he saw petitioner take the step forward. As to the procedure, he testified on direct examination that when he calls a name at induction ceremonies, "I wait for a response, * * * or if they are near the front of the room where I can see them, I see if they step forward." Afterward, he would call the next name. "Q. Did you at any time look to see if a man had taken a step forward? A. I look up each time I call a name. Q. What do you look for when you look up? A. For movement, for a man stepping forward. * * * Q. On that day did you see any man fail to step forward after his name was called by you? A. No." On re-cross-examination, Captain Beydler was asked, "Can you tell us that you recall whether or not you saw this petitioner move forward on April 15 — after you called his name?" The Captain answered, "No, I cannot."

Petitioner testified that his mother and grandmother belonged to Jehovah's Witnesses; on re-cross-examination petitioner was asked, "Were you a member of the enlisted reserves in the Army of the United States?" To which he replied in the affirmative. The record does not reveal how long or under what circumstances he was in such service. On cross-examination, petitioner was asked, "When did you become a conscientious objector?" Petitioner answered, "While sitting in the room. I just thought. The material together, I would say, filled my mind, and this is one thing I wanted to do. * * * Q. When your name was called did you take a step forward? A. No." He also...