divinity school in which he has been pre-enrolled.'
A fair and impartial perusal of the facts herein set forth leads to the conclusion that the relator is included in the terms of the above mentioned regulation. He had been engaged in graduate study at Rutgers during the year and at the same time applied for admission to the theological school. Strictly read, it would seem that the regulation refers only to persons who, while engaged in full-time preparatory studies for entrance into a theological school, are at the same time pre-enrolled in said theological school. By virtue of his acceptance at the theological school, relator met the requirement of pre-enrollment. Since the academic year at Rutgers had drawn to a close, he was not at the time of his acceptance pursuing said full-time preparatory courses, though he was at the time of his application. This situation was due not to relator's own actions but to the fact that he was accepted for admission at a date subsequent to the end of the scholastic year. To say that relator has failed to bring himself within the terms of the above mentioned regulation would render the date of acceptance completely dispositive, something which the regulation itself does not do. Therefore it is the ruling of this Court that relator has shown himself to be a proper subject for a IV-D classification.
The question is then presented whether, in the light of the facts of the instant case, the Selective Service Board acted arbitrarily and capriciously. See United States v. Grieme, 3 Cir., 1942, 129 F.2d 811.
The Local Board took no action on relator's claim or appeal of July 3, 1952. Counsel for the respondent stated that this was due to the fact that they were precluded from acting because notice to report for induction had been sent on July 2, the day before relator's telegram was received. See 32 C.F.R., 1625.2. This notice to report for induction had been sent prior to the expiration of the ten-day period after notice of classification within which a registrant may file a written request for appearance before the Local Board. 32 C.F.R., 1624.1. It is apparent that had the Local Board sent the notice to report for induction after the expiration of the ten-day period, it would have been able to act on relator's request for reclassification. Further, respondent's counsel stated that the Appeal Board to which the Local Board had transferred its file and which by a three to nothing vote declined to change his classification, was precluded from considering any evidence which was not before the Local Board at the time said Local Board reclassified relator into 1-A.
Thus by respondent's own admission it is evident that the relator's change in status was not considered by either the Local or Appeal Boards. While relator's telegram of July 3 leaves something to be desired as a request for appearance, it was sufficient to apprise the Local Board of his situation. However, the wording of the telegram is not what prevented the evidence of the change in status from being considered. It was the sending of the notice to report for induction which served as the cut-off.
In view of the regulation providing for the filing of written notice requesting personal appearance within ten days after notice of classification, see 32 C.F.R., 1624.1, the notice of induction should not have been sent until the expiration of that time. In this conclusion we are strengthened by the following words of Sec. 1625.2 of Title 32 of Code of Federal Regulations: ' * * * provided, in either event, the classification of a registrant shall not be reopened after the local board has mailed to such registrant on Order to Report for Induction * * * '. To provide a ten-day period for the filing of a personal appearance request but to allow it to be cut off by the making of an order to report for induction before the expiration of that time, is the granting of an empty right. The pursuit of such a course by the Board is repugnant to the letter and the spirit of the regulation as this Court sees it.
The result is that the Local Board's action in sending the notice to report for induction prior to the expiration of the ten-day period, deprived the relator of an opportunity to appear before it and urge reclassification to class IV-D. It further affected the opportunity for proper appeal, though it seems that the Appeal Board having the notice of acceptance of the relator by a properly qualified theological school, should have given recognition to the actualities of the situation.
The determination of the Appeal Board is understandable even though this Court feels that its action, in the light of all the circumstances of the case, was arbitrary. In these days of increasing weakening of the moral fibre of our youth by what has been rather harshly called 'Momism' and the sedulous widespread cultivation of self-indulgence rather than the Spartan qualities (erstwhile held in such just renown) of fortitude, courage, recognition of civil responsibility and willingness to share communal burdens, no matter how heavy, it is easy to confuse such fostered lack of stamina with proper motives for exemptive claims recognized by law and worthily asserted.
Having reached these conclusions, it is the decision of this Court that the Draft Board acted in an arbitrary manner to prevent the relator from obtaining a classification to which he was entitled by law. Such action is a basis for the issuance of a writ of habeas corpus forthwith. See in re Abramson, 3 Cir., 1952, 196 F.2d 261.
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