The government contends that December 3, 1940, is the date of classification, while petitioner contends January 3, 1941, is the date of classification. These dates are important because the disposition of this case depends upon whether or not the petitioner was a dependent "at the time the registrant is [was] classified."
Under the regulations there are four general classifications, Classes I, II, III, and IV. Volume 3, Section XVIII, paragraph 327. Class I is divided into Subclasses I-A, I-B, I-C, I-D and I-E. Volume 3, Section XVIII, paragraph 328. A registrant cannot be placed in Class I-A until after he is found fit for general military service, or until after his physical examination. Volume 3, Section XVIII, paragraphs 330 and 331; Volume 3, Section XXI, paragraph 342. It is also provided that the registrant shall receive a notice of classification, Volume 3, Section XVIII, paragraph 332, and he is entitled to appeal within five days from that date pursuant to Volume 3, Section XXVII, paragraph 371.
We conclude that Greenberg was not classified until January 7, 1941, and that the action of the Local Board on December 3, 1940, is immaterial herein. This conclusion is consistent with the Board's failure to give notice of classification as of December 3, 1940, which in turn conflicts with its own opinion that classification was perfected on that date. Accordingly, classification is governed by circumstances existing on January 7, 1941.
There remains for determination whether or not the petitioner depended on January 7, 1941, in fact for support on the income earned by her husband. The Local Board disposed of the item of dependency on the grounds that Greenberg's income would continue and because the petitioner could return to her family. The Appeal Board disregarded any question of dependency existing on January 7, 1941, because it thought classification was effected December 3, 1940.
There was no evidence to support the Local Board's conclusion that Greenberg's income would continue. On the contrary the evidence indicated that he relized no income from his investment in the cleaning business, but only a salary of $35 a week or $1,820 per annum based upon his services. Actually, the only evidence before the Board indicated that his investment in the business amounted to about $1,000. The evidence does not disclose that the petitioner has an independent income; it does reveal that here husband's induction would force her to abandon an apartment in which she and her husband were living. Thus, the only alternative would be the return of the petitioner to her parents, and of this the Local Board was cognizant.
Manifestly, the Selective Service Act neither contemplates a disruption of domestic life nor a moratorium on marriages occurring after its enactment. Congress was careful in expressing its intent in this respect because it is provided:
"This [classification] should be accomplished so as to give equal and fair justice to all". Volume 3, Section XVIII, paragraph 326, Selective Service Regulations.
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"b. The local board should determine all questions of Class III deferments with sympathetic regard for the registrant and his dependents. Any reasonable doubts in connection with dependency should be resolved in favor of deferment, and in doubtful cases the local board should be mindful of injuries which may be expected to result from separating a father from his children or a husband from his wife. The maintenance of the family as a unit is of importance to the national well-being." Volume 3, Section XXIII, paragraph 354, Selective Service Regulations.
In the case of Boitano v. District Board, D.C., 250 F. 812, 813, the petitioner had married on June 27, 1917, following the enactment of the Selective Service Law of May 18, 1917, 50 U.S.C.A.Appendix § 201 et seq. The District Board reversed the Local Board's classification, and refused to consider the marriage because it was effected after May 18, 1917. The court expressed its inability to substitute its opinion for that of the District Board, but pointed out the following relevant rule under the Act of 1917:
"Section 76, rule IX: 'In class IV shall be placed: (a) Any married registrant whose wife or children are mainly dependent on his labor for support.'
"Section 72, rule V: 'On May 18, 1917, every person subject to registration had notice of his obligation to render military service to his country. The purpose of the Selective Service Law was not to suspend the institution of marriage among registrants, but boards should scrutinize marriages since May 18, 1917, and especially those hastily effected since that time, to determine whether the marriage relation was entered into with a primary view of evading military service, and unless such is found not to be the case boards are hereby authorized to disregard the relationship so established as a condition of dependency requiring deferred classification under these regulations.'"
It stated: "This does not mean that all marriages after May 18, 1917, shall be looked upon with suspicion, but, if any circumstances in the previous history of the case, as disclosed by the record, induce the relief in the minds of the board that a marriage under consideration was in fact what this board denominates a 'war marriage,' the registrant must show affirmatively that such was not the case". 250 F. 812, 813.
We do not have a specific provision in the Selective Service Act of 1940 or the Regulations as in the Act of 1917 with reference to marriages occurring after its enactment. The present act does not create any cloud of suspicion upon marriages occurring after September 16, 1940, or even after the filing of the questionnaire, because the circumstance of a registrant on the date of classification are controlling. This liberality does not mean, however, that "war marriages" may not be disregarded in a proper case. Herein there is not a scintilla of evidence indicating that Greenberg was motivated by an attempt to evade service. We have conclusive testimony that he became engaged to the petitioner as early as December, 1939, and in addition the wedding date at that time was set for January 4, 1941. He presented to the Local Board evidence of this in the form of a printed invitation to the combined celebrations of the anniversaries and wedding. He also presented to the Board insurance policies issued as early as December 16, 1939, covering the engagement ring he had given to the petitioner. Correspondence between the petitioner and Greenberg of the nature usually passing between engaged couples was offered to the Board as well as affidavits of persons who swore that they knew that the couple had become engaged in December, 1939, and at that time their wedding date had been determined to be January 4, 1941. Under these circumstances the fact that he was married when he knew he would report for his physical examination the following day is immaterial.
We conclude that the Local Board and the Board of Appeal acted arbitrarily in their failure to conclude that the petitioner was a bona fide dependent upon Greenberg on the date of classification.
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