Ver Mehren v. Sirmyer

• Citation: 36 F.2d 876
• Decision Date: 12 December 1929
• Docket Number: No. 8620.,8620.
• Parties: VER MEHREN v. SIRMYER, Commandant, etc.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

36 F.2d 876 (1929)

VER MEHREN v. SIRMYER, Commandant, etc.

No. 8620.

Circuit Court of Appeals, Eighth Circuit.

December 12, 1929.

Casper Schenk, of Des Moines, Iowa (Charles S. Bradshaw and Rex H. Fowler, both of Des Moines, Iowa, on the brief), for appellant.

Ray C. Fountain, Asst. U. S. Atty., of Des Moines, Iowa, and Capt. G. S. Woolworth, J. A. G. D., of Omaha, Neb. (Ross R. Mowry, U. S. Atty., of Newton, Iowa, and Frank F. Wilson, Asst. U. S. Atty., of Mt. Ayr, Iowa, on the brief), for appellee.

Before KENYON and BOOTH, Circuit Judges, and REEVES, District Judge.

BOOTH, Circuit Judge.

This is an appeal from an order dismissing a writ of habeas corpus, through which appellant, petitioner below, was seeking relief from a judgment of a general court-martial convicting him of desertion from the United States Army.

The main contention of the appellant is that he never was lawfully inducted into the military service, and hence that the court-martial had no jurisdiction to try him for the alleged offense.

The following facts appear: June 15, 1917, petitioner registered for the draft at Omaha, Neb., where he lived. On August 16, 1917, the local board for division 1 of that city, after physical examination, issued him a "certificate of discharge because physically deficient." On November 8, 1917, new Selective Service Regulations were issued by the War Department. By section 4 thereof prior discharges were revoked. Thereafter, on December 24, 1917, petitioner filed his questionnaire, in which he claimed exemption from the draft because of the dependency of his mother. The exemption was denied, and on January 26, 1918, he was ordered to appear for physical examination (S. S. R. § 122). On February 2, 1918, petitioner appeared and was examined by the examining physician of the local board.

The Selective Service Regulations, which have the force and effect of law (section 6) provided (section 122) that the examining physician should immediately inform the registrant whether he was qualified or disqualified for military service; and further provided (section 122, note):

"Note. — Whether the examining physician of the Local Board is in doubt or not as to the physical qualification of a registrant for military service he shall nevertheless definitely report the registrant either as qualified or disqualified, and if he is in doubt as to such qualification or disqualification he may request to have the registrant sent before a Medical Advisory Board as prescribed in Section 123."

In the case of petitioner, the examining physician did not inform petitioner whether he was qualified or disqualified; nor did the examining physician make report as provided by S. S. R. § 122, note, but instead reported as follows:

"I certify that I have carefully examined the person named on the first page hereof and have carefully recorded the results of the examination, and that it is my judgment and belief that he

| physically qualified for general military | service | physically qualified for special or limited is Feb. 2, 1918 "C. C. Morison, M. D. (Examining Physician.)"

thus leaving the matter entirely undetermined.

On the trial below petitioner offered to show that the examining physician told him that he was unable to determine whether petitioner was qualified or not, and suggested that petitioner appeal to the medical advisory board. This offer to prove was rejected; as was a further offer to prove that the examining physician told petitioner that the matter would be reported by the medical advisory board to the local board, and that the local board would immediately send petitioner a notice if he was accepted under the draft.

In any event, petitioner signed an application to be sent to the medical advisory board for further examination, and the matter was referred to that board by the local board.

On February 9, 1918, the medical advisory board reported to the local board that petitioner was physically qualified for general military service; and on the same day the local board made a finding to the same effect.

Section 124, S. S. R., provided:

"The Local Board shall, on the day of its decision as to the physical qualification of any registrant, mail to such registrant a notice (Form 1011) of the result of such decision and shall enter the date of such mailing in column 21 of the Classification List (Form 1000)."

Neither of these provisions of law was complied with. The notice required to be sent (Form 1011 section 283, S. S. R.) was of peculiar importance. It read, in the event the registrant was found qualified, as follows:

"Local Board for ______. "_________. (Date)

"You are hereby notified that, as a result of your physical examination, you have been found by the Local Board qualified for military service which leaves you in Class ______ subject to call in your order of call when the Government may have need of your services.

"______, Member of Local Board."

The classification list (Form 1000) was a list containing the names of persons liable to be called, to determine their availability for military service. It was posted in the office of the local board. On it, after the name of each registrant, were numbered columns, in which were to be inserted the dates of the various steps taken in reference to each registrant.

The importance of the notice above quoted, as well as of the classification list, will be apparent from the provision of section 125, S. S. R. which reads in part as follows:

"Within five days after the date of the notice prescribed in section 124 any registrant may make a claim of appeal to the District Board from the finding of the Local Board as to his physical qualification for military service."

The importance will also be apparent from the provision of section 8, S. S. R., which reads as follows: "In computing the several periods of time within which any act is required or permitted by the Selective Service Law and these Rules and Regulations to be performed by registrants and other persons, the day of the posting of notice, and Sundays and legal holidays, shall be excluded;" and from the provisions of section 7, S. S. R., which reads as follows:

"(b) Whenever a duty is to be performed or a period of time begins to run within which any duty is to be performed by any such registrant, or within which any right or privilege may be claimed or exercised by or in respect of any such registrant, a notice of the day upon which such duty is to be performed, or such time begins to run, shall be mailed to the registrant, and the date of such mailing of notice shall be entered opposite the name of such registrant on the Classification List, which is always open to inspection by the public at the office of the Local Board."

"(d) Either the mailing of such notice or the entry of such date in the Classification List shall constitute the giving of notice to the registrant and to all concerned, and shall charge the registrant and all concerned with notice of the day upon which such duty is to be performed or the beginning of the running of the time within which such duty must be performed or such right or privilege may be claimed, regardless of whether or not a mailed notice or Questionnaire is actually received by the registrant or other person."

No notice was given, or posting in reference to the decision on physical examination was made. No opportunity was given the petitioner to appeal to the district board as he had a right to do under section 125, S. S. R.

In the classification list opposite the name of petitioner appear the following entries pertinent here:

"19. Date of notice to appear for physical examination. (Sec. 122). 1 — 26 — 18

"20. Date of appearance for physical examination (Sec. 122). 2 — 2 — 18

"21. Date of mailing decision on physical examination (Sec. 124). (No entry.)

"22. Date of appeal from physical examination and forwarding record to District Board (Sec. 125). (No entry.)

"23. Date of return of physical examination from District Board and mailing notice of classification (Sec. 127). (No entry.)

"24. Date and hour to report for military duty and entrainment (Sec. 157). 3 — 30 — 18 9 A. M."

Section 157, S. S. R., provides that the Provost Marshal General shall notify each State Adjutant General when and where to furnish the quotas of the state. The Adjutant General shall thereupon notify the local board of the exact number to be furnished by said board and the date, hour, and place of entrainment. Upon receipt of this notification it was the duty of the local board to enter in the proper column on the classification list after the name of the registrant the day and hour on which the registrant was to report to the local board. It was further the duty of the local board, on making such entry on the classification list, to mail to the registrant an order (Form 1028, including Form 1028A) to report to the local board at the hour, day, and place specified.

The entrainment order was received by the local board on March 24, 1918. On the classification list opposite the name of the petitioner, in the column headed, "Date and hour to report for military duty and entrainment," appears the entry, "3 — 30 — 18 9 A. M." When this entry was made does not clearly appear. The order (Form 1028, including Form 1028A) to the registrant to appear, was never mailed. Form 1028 appears to have been filled out on March 30, 1918, but remained in the official files.

Form 1028 stated the day and hour when the registrant was to report. It further stated:

"From and after the day and hour just named you will be a soldier in the military service of the United States."

Form 1028A stated:

"Important Notice to all Men Selected for Military Service and Ordered to Report to a Local Board for Military Duty.

"The day and hour specified on the Classification List of this Local Board, and on the order and notice of induction into military service which accompanies this notice for you to report...