the active Military Service is not contemplated. * * *" Army Regulations 130-10; Section XI, paragraph 130.
The Army Regulations, based upon Title 10 U.S.C.A. § 653, to which reference has been made affect those members of the National Guard who have been inducted into the Army on the same basis as other personnel of the Army are affected, so that respondent's point that the legislation differentiates between those inducted into the Army from the National Guard and those enlisting directly in the Army is not sustained.
The verbal, informal application of the father and mother of the relator within the six months' period following his induction, in fact within a few weeks thereafter, constituted a substantial compliance with the Army Regulations. The contention of the respondent calls for a construction of the statute and regulations that would be so strained as to require the application for release of the soldier to be made to the Secretary of War himself. The applications made, together with the presentation of evidence by way of birth certificate of the relator, to his battery and battalion officers, were sufficient to meet the requirements of the statute and the regulations. The War Department itself recognized Title 10 U.S.C.A. § 653 and the Army Regulations based thereon as lately as October 6, 1941, in a letter forwarded on that date by it to counsel for petitioner, which is in evidence, and in part reads as follows:
"I have your letter of September 22, 1941, relative to the discharge on account of minority of Private James G. McCollam, who, the records show, enlisted in the National Guard on July 10, 1940, and was inducted into Federal service on September 16, 1940, giving his date of birth as January 4, 1922.
"The Act of Congress approved February 12, 1925, provides for the discharge of enlisted men under twenty-one years of age who enlisted without the consent of parent or guardian, upon application of parent or guardian within six months after the date of enlistment.
"As the request for discharge was not submitted within six months after the date of his enlistment, there appearse to be no way in which he can be discharged on account of minority." Exhibit R-3 in Evidence.
From this it appears that the War Department at the date of this communication took full cognizance of the existence of the statute and regulations but declined to find that the request for release of the relator was submitted within six months after the date of his induction.
I think it is fair to say that Title 10 U.S.C.A. § 653 and Army Regulations promulgated thereunder were in existence in October of 1940.The parents of the relator endeavored to comply with their provisions and in fact did effect a substantial compliance therewith. The commanding officers of the relator's battery and battalion either through ignorance of the statute and regulations or in commendable enthusiasm to keep up the numerical strength of their units failed to take appropriate action on the request of the relator's parents. Important as it is to encourage the recruitment of the Army in time of war it, nevertheless, is equally important that existing laws and regulations should be obeyed and the protections furnished thereunder should be safeguarded.
The relator does not escape entirely the burden of military service by taking advantage of the provisions of the law and regulations covering his youthful engagement to serve in the military. In appropriate time he will come under the Conscription Acts, if he has not already done so, and the country will then be in position to take advantage of the military training he has already acqhired if he is legally conscripted into the Army. Under all of the circumstances the writ will be sustained and the relator discharged.
An order should be taken accordingly.
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