In Re Lacharity, Civ. No. 1564.

• Decision Date: 07 December 1943
• Docket Number: Civ. No. 1564.
• Citation: 53 F. Supp. 47
• Parties: In re LACHARITY.
• Court: U.S. District Court — Western District of New York

53 F. Supp. 47

In re LACHARITY.

Civ. No. 1564.

District Court, W. D. New York.

December 7, 1943.

Klocke & Rovner, of Buffalo (James O. Moore, of Buffalo, of counsel), for petitioner.

George L. Grobe, U. S. Atty., and by Eugene J. Donnelly, Asst. U. S. Atty., both of Buffalo, for respondent.

KNIGHT, District Judge.

Petitioner registered under the Selective Training and Service Act of 1940, 50 U.S. C.A.Appendix, § 301 et seq., with Local Board 3, Lancaster, Pennsylvania, and was classified III-A on December 11, 1940, on dependency of two daughters not residing with him.

He stated his wages as $75 per week, or $3600 (sic) per year in his questionnaire. He executed an affidavit (D.S.S. form 41) covering dependency, stating his income as $2000 per year and that his daughters lived at his home part of the year, and further that his mother was dependent partially upon him.

On February 8, 1943, petitioner was reclassified tentative 1 and mailed notification by the proper form (D.S.S. 57). On March 1, 1943, he was classified IA by the Board and so notified by mail on D.S.S. Form 57. Entered under the same date (whether before or after reclassification does not affirmatively appear) the Classification Record of the Board bears an entry that petitioner was granted an appearance before the Board. A memorandum in the Local Board's file on petitioner recites his appearance before the Board on March 1, 1943, concerning dependency of his children.

On March 6, 1943, apparently at the behest of petitioner, the Board secured permission to afford petitioner a pre-induction physical examination, because he could not liquidate his business in seven days.

By letter, dated March 19, 1943, petitioner sent two affidavits to the Board, his own claiming his father and mother as collateral dependents and that one of his daughters had returned to live with him and had become a full dependent on March 7, 1943; and further claiming an occupational deferment. His daughter's affidavit was in support.

A memorandum, dated March 22, 1943, and signed with name of a Board member recites that petitioner's second marriage "occurred after registration and dependency of daughter after Pearl Harbor, no undue hardship because daughter could live with her step-mother." The Board by letter dated March 23, 1943, notified the petitioner that he would have to go through induction.

A memorandum dated March 25, 1943, in the file recites that petitioner phoned and requested that his examination papers be sent to him in Buffalo, that he would like to go direct to Harrisburg for a pre-induction examination. The examination papers were sent to petitioner but petitioner never availed himself of the courtesy. Petitioner submitted affidavits supplementing his claim to occupational deferment and also filed an Affidavit for Occupational Classification (form 42A) in support, in which he stated inter alia that his salary was $100 per week. These were sent by letter dated April 8, 1943, stating his knowledge that the Board would meet on April 12 requesting reconsideration and further reciting that "I intend to call on you then."

At the meeting on April 12, 1943, petitioner and his attorney were present and testimony under oath was taken and minutes made. The minutes recite that deferment was denied on either ground — dependency or occupation, and by letter dated April 13, 1943, petitioner was notified that his I-A classification was continued. By letter dated April 16, 1943, petitioner purported to appeal from this decision and further requested that his case be referred to the Appeal Board located in Buffalo, New York, pursuant to Section 627.71 of the Regulations, claiming that the Buffalo Appeal Board has jurisdiction over the area in which he was employed.

By letter dated April 20, 1943, the Board notified him that he was classified I-A on March 1, 1943, and failed to appeal within the prescribed 10 days and that "the Board agreed to hear you at its meeting held Monday, April 12, 1943, and notified you that your classification remained I-A, * * *" and further, refused to transfer the case to the Buffalo Appeal Board.

Petitioner was ordered and appeared for induction in Buffalo, New York, on May 17, 1943, and was rejected. The report of his physical examination and induction (D.S.S. form 221) recites disqualification because of "Limitation of quota for limited service men for the month of May. He may be sent in with next group."

A letter dated May 26, 1943, shows that the Board forwarded the petitioner's induction papers to a local Board in Buffalo, New York, for a second induction and further recites: "We have referred to memorandum of April 24th, 1943, and even though it states that registrants rejected at the induction station should be classified 4F, we want him to be forwarded to the induction station as according to the papers received from this station. * * *"

A Second Report of Physical Examination and Induction D.D.S. form 221 shows that he was again sent for induction on July 12, 1943, and rejected because of the quota for limited service men. An entry by the local Board on this form recites petitioner's classification of I-A(L) on August 23, 1943. Petitioner's questionnaire bears an entry under caption "Minutes of Other Actions" as follows: "8-23-43 Classified I-A(L) Vote 3 to 0. Rej. at Albany. Form 57 mailed 8-23-43 Robert F. Groff."

By letter dated August 10, 1943, the local Board forwarded the file to the Pennsylvania Selective Service Headquarters for review and a letter dated August 19, 1943, from the State Director shows that the file was reviewed and recommended that proper classification was I-A(L).

Petitioner's letter to the Board dated August 31, 1943, purports to appeal on same grounds from the last classification and also requests transferral of case to the Buffalo, New York, Appeal Board. The Board refused to permit this appeal on the ground that class I-A(L) is a continuation of classification I-A and not a re-classification.

Petitioner was inducted into the army on October 20, 1943, and on October 25, 1943, was classified I-C (in the armed forces).

From the record before the court it is apparent that petitioner is the owner and operator of a chain of hotels, a person of comprehension and intelligence. No question exists in this case of the registrant having lost any rights through inherent ignorance or lack of reasoning.

Petitioner maintains that his induction was illegal on the following grounds:

(1) That he was afforded a formal appearance by the Board on April 12, 1943, but was not permitted to appeal thereafter pursuant to sections 625.1 and 625.2 of the Regulations.

(2) The Lancaster Board refused to transfer his file to the Buffalo, New York, Appeal Board which has jurisdiction over the area in which petitioner is employed.

(3) The Board failed to classify him IV-F following his rejection at the induction station on May 17, and again on July 12, 1943.

Sections 625.1 and 625.2 of the Selective Service Regulations provide in substance for the right in every registrant to an appearance before a local Board after classification, if he files a written request therefor within 10 days after the local Board has mailed a notice of Classification (form 57) to him. Section 625.2 requires the fact of the registrant's...