United States ex rel. Chance v. Tolson, Civ. A. No. 882.

• Decision Date: 02 October 1969
• Docket Number: Civ. A. No. 882.
• Citation: 312 F. Supp. 1384
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: UNITED STATES of America ex rel. Jerome CHANCE, Petitioner, v. Lieutenant General John J. TOLSON, Commanding General, United States Army, Fort Bragg, North Carolina, Respondent.

312 F. Supp. 1384

UNITED STATES of America ex rel. Jerome CHANCE, Petitioner, v. Lieutenant General John J. TOLSON, Commanding General, United States Army, Fort Bragg, North Carolina, Respondent.

Civ. A. No. 882.

United States District Court, E. D. North Carolina, Fayetteville Division.

October 2, 1969.

Chambers, Stein Ferguson & Lanning, Charlotte, N. C., for petitioner.

Warren H. Coolidge, U. S. Atty., Raleigh, N. C., for Lt. Gen. John J. Tolson.

BUTLER, Chief Judge.

MEMORANDUM

Petitioner filed a petition for a writ of habeas corpus on July 14, 1969, challenging the legality of his induction into the United States Army on June 13, 1969. The respondent concedes that habeas corpus is available to challenge the legality of an order to report for induction. Petitioner's claim here is that Local Board No. 60 of Martin County, North Carolina acted illegally in failing to reopen his classification and reclassifying him anew after he had presented evidence which, if true, would justify classifications of II-A (occupational deferment) and III-A (extreme hardship deferment).

This case was heard before the undersigned in Chambers in Clinton, North Carolina on August 13, 1969. It was stipulated between counsel that petitioner's Selective Service file would constitute the entire record in the case. The Court's decision was pronounced orally at the hearing. This Memorandum is substantially the same as the decision rendered at that time.

The Court finds that on and prior to October 22, 1968¹ when the registrant was re-classified I-A that there was no evidence before the Local Board relating to the registrant's claim of entitlement to a reopening of his classification or to justify a reclassification of II-A or III-A; that the registrant first submitted information to the Local Board on January 28, 1969 that he was a full-time teacher in the Tarboro, North Carolina City School System and requested an occupational deferment.² Thereafter, letters were addressed to the Local Board by the superintendent and principal of the school in which the registrant was employed and in which he began teaching in September 1968 stating that he was a full-time sixth-grade teacher and that because of the shortage of teachers, it was impossible to replace him during the school term with a qualified teacher.³

Subsequently, the registrant informed the Local Board to the effect that his father's property was heavily mortgaged and that he might possibly lose his property; that he had a dependent child two years of age; that his brother was sickly; that his mother was not eligible for working; and that the family help came from the registrant.

The Court further finds that the registrant's delay in submitting his claims of eligibility for reclassification for II-A and III-A status did not result in any prejudice to the Selective Service System and that the record fails to indicate that the registrant's delay was a reason for its decision not to reopen the registrant's I-A classification. Petrie v. United States, 407 F.2d 267 (9th Cir., 1969) (en banc); McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194 (Decided May 26, 1969). The Court is of the opinion that the information presented to the Local Board with respect to the claims of entitlement to a II-A⁴ and III-A⁵ classification was not before the Board when the registrant was classified I-A and that such information, if true, would justify a change in the registrant's classification and that the Local Board erred in refusing to reopen registrant's I-A classification and consider his classification anew based upon the facts presented. S....