IN RE PHILLIPS'PETITION, 2158.

• Decision Date: 23 October 1958
• Docket Number: No. 2158.,2158.
• Citation: 167 F. Supp. 139
• Parties: Petition of Alva K. PHILLIPS, Austa M. Phillips and Monty Paul Phillips, For a Writ of Habeas Corpus and for a Writ of Mandamus.
• Court: U.S. District Court — Southern District of California

167 F. Supp. 139

Petition of Alva K. PHILLIPS, Austa M. Phillips and Monty Paul Phillips, For a Writ of Habeas Corpus and for a Writ of Mandamus.

No. 2158.

United States District Court S. D. California, S. D.

October 23, 1958.

Laughlin E. Waters, U. S. Atty., Los Angeles, Cal., Jordan A. Dreifus, Los Angeles, Cal., for respondent.

Luce, Forward, Kunzel & Scripps, San Diego, Cal., Robert E. McGinnis, San Diego, Cal., for petitioner.

WEINBERGER, District Judge.

Monty Paul Phillips, a member of the United States Marine Corps, and his parents filed a petition for a writ of habeas corpus or mandamus to inquire into his detention by officials of the Marine Corps within this District and Division.

It is alleged in the petition that Monty Paul Phillips was born on the 7th day of January, 1939; that on November 20, 1957, at the age of 18 years, he enlisted in the United States Marine Corps and that such enlistment was made by him without the written consent of his parents; that about December 31, 1957, and within ninety days from such enlistment, the parents made application, pursuant to Section 6293 of Title 10 of the United States Code for the discharge of said Marine; that the Secretary of the Navy, on January 10, 1958, refused such discharge; that Monty Paul Phillips is being detained in the military service unlawfully and by illegal acts and omissions of the Secretary of the Navy.

The return alleges that petitioner Monty Paul Phillips enlisted in the Marine Corps on November 21, 1957, for a term of four years, has performed duty and service customary under such enlistment, is under the command of the respondent making the return; that he has not been subjected to any disciplinary action of any kind, and is under no restraint except those which the usual requirements of military life may impose.

It is admitted that the application for discharge mentioned in the petition was made, and that the same was denied by the Secretary of the Navy who cited as his authority Section 456(l)¹ of Title 50 U.S.C.A. Appendix.

Since the petition was filed, the issues set forth therein and arising therefrom have been the subject of extended briefs of counsel, and for the purpose of receiving further briefs and written argument. the Court has, with the consent of counsel, continued the hearing on the application from time to time until on September 12, 1958, the application was submitted by stipulation and order, for decision.

In his brief filed June 27, 1958, counsel for respondent mentions at page 1 that respondent will assume, for the purposes of argument, that petitioner is in sufficient custody in order to maintain the habeas corpus jurisdiction of this Court under 28 U.S.C.A. § 2241, but intimates that the "custody point" is doubtful, and reserves the right to argue the issue at a later date. As of the date of this memorandum, no further argument on the part of respondent has been directed to whether the petitioner is or is not within "custody" as the word is used in said section.

It is obligatory upon the Court, however, to ascertain its own jurisdiction, whether or not the same be questioned by either party.

The Court is of the opinion that the petitioner is "in custody" within the requirements of Section 2241 of Title 28 U.S.C.A. and that the application for writ of habeas corpus is a proper remedy to test the legality of his detention in the Marine Corps. United States ex rel. Orloff v. Willoughby, D.C., 104 F. Supp. 14, affirmed 9 Cir., 195 F.2d 209, affirmed 345 U.S. 83, 73 S.Ct. 534, 97 L.Ed. 842.

Title 10 U.S.C.A. § 6293(a), as it was enacted August 10, 1956, reads:

"(a) Upon application by a parent or guardian of any enlisted member of the naval service made to the Secretary of the Navy within 90 days after the member's enlistment, the member shall be discharged for his own convenience if —

"(1) there is evidence satisfactory to the Secretary that the member is under 21 years of age; and

"(2) the member enlisted without the written consent of his parent or guardian, if any."

The respondent relies upon Section 456(l) of Title 50 U.S.C.A. Appendix (Universal Military Training and Service Act) which states:

"(l) Notwithstanding any other provisions of law, no person between the ages of eighteen and twenty-one shall be discharged from service in the armed forces of the United States, while this title (sections 451-454 and 455-471 of this Appendix) is in effect because such person entered such service without the consent of his parent or guardian."

The Universal Military Training and Service Act was preceded by the Selective Service and Training Act of 1940, (50 U.S.C.A. Appendix, § 301 et seq.) the latter being based on the Draft Act of 1917. Local Draft Board No. 1 v. Connors, 9 Cir., 124 F.2d 388, 390. By the 1940 Act Congress declared it was imperative to increase and train the personnel of the Armed Forces of the United States and provided that every male citizen of the United States between the ages of 21 and 36 should be liable for training and service in the land or naval forces of the United States; that each man inducted should serve for 12 consecutive months; that within quota limits any person between 18 and 36 should be afforded the opportunity to volunteer for induction for the training specified in the Act, and thus be exempted from the draft. It was also provided that the draft provisions should expire on May 15, 1945 unless Congress should extend the same.

At the time World War II was declared the draft age was 20, there were in effect under the Selective Service and Training Act provisions for volunteering for the service and training specified in the Act in lieu of being drafted; there were also in effect provisions for the voluntary enlistment of men 18 or over, with no requirement for parental consent; there were also provisions for discharging men between 18 and 21 who enlisted without the consent of parents, and discharges were being granted under said sections. See Ex parte McCollam, D.C., 45 F.Supp. 759, decided June 16, 1942.

By legislation effective November 13, 1942 the draft age was lowered to 18, and the same Congress added subdivision (i) to Section 305(2) of the Selective Service and Training Act of 1940, which subdivision was re-enacted into the Selective Service and Training Act of 1948 as Section 456(l) of Title 50 U.S.C.A. Appendix, quoted above. By the 1951 enactment the termination date of the Act of 1948 was deleted, it was amended to provide that inductions would be permitted only to July 1, 1959, and renamed the Universal Military Training and Service Act.

In 1957 when petitioner enlisted in the Marine Corps the laws with reference to minors were similar to those in effect since November, 1942; 18-year-olds could be drafted for service and training under the Universal Military Service and Training Act, or they could volunteer for the service and training provided in the Act and avoid being drafted or they could enlist in the Armed Forces at the age of 18, with no requirement for parental consent, and there appeared in Title 10, Section 6293(a) the provision for release of those between 18 and 21 who had enlisted without their parents' consent.

There is, on the face of it, a conflict between the subdivision (l) of Section 456 of the Universal Military Service and Training Act and Section 6293(a) of new Title 10 — the latter stating that a minor enlisted without consent of parent or guardian may be discharged upon proper application of such parent or guardian, and the former stating that "notwithstanding any other provisions of law" the same minor cannot be discharged because he enlisted without the consent of his parent or guardian.

It might seem a happy solution to restrict the application of 456(l) of Title 50 U.S.C.A. Appendix to those enlistments under the Act which contains the section, and leave Section 6293(a) of Title 10 free to apply to enlistments under the Act in which such latter section is found. Such a construction, however, would give rise to the incongruous situation of an 18-year-old enlisting in the regular Marine Corps so that he could choose the branch of service he perferred and take care of his obligation to his country at his own convenience, then being discharged within 90 days, and later drafted into another branch of the service.

A consideration of the state of the nation at the time the predecessor to Section 456(l) of Title 50 U.S.C.A. Appendix was passed is enlightening. World War II was upon us. There was great need for increasing the strength of our armed forces. Identical bills for lowering the draft age from 20 to 18 had been presented to both the House and Senate, and were in committee hearings. (See hearings October 14 and 15, 1942, on S. 1644 and H.R. 7528.)

Undersecretary of War Robert B. Patterson appeared before both the House and Senate Committees on Military Affairs, and alluded to the incongruity between the law proposed to be passed permitting the drafting of 18-year-olds, and the law which had been in...