The opinion of the court was delivered by: MADDEN
This is an application by Dennis J. Striker for a writ of habeas corpus seeking his release from the Army upon the grounds that he was illegally and improperly inducted. The basis for his application is that he was wrongfully classified by Selective Service Board 14 to classification I-A and that in so classifying him the Board acted improperly in three regards: Firstly, that they misinterpreted the regulations of the Selective Service Regulations, to wit, section 1622.30, Sections (a) and (b);
secondly, that they did not give proper consideration under the regulations to his request for deferment as working in a necessary industry for the common defense; and, third, that they never gave to the registrant-applicant herein appropriate instructions for appeal, either appeal from their classification or appeal by the employer from their classification.
Upon filing the application, the Court fixed a hearing date and hearing has been held, the petitioner being represented by counsel and the respondent being represented by the United States Attorney's Office through its assistant, Don Allen Resnikoff, Esquire. Both counsel filed briefs with the Court, in addition to the introduction of testimony. There is no great dispute of facts.
At the outset the Court wants to make it clear that any comment made during this Opinion hereafter is not to be considered as being critical of the Local Board in their actions. At the most the Court finds the possibility that the Board did not properly interpret Selective Service Regulation 1622.30 and give the benefits thereunder to the registrant. The Court during the course of the hearing became thoroughly convinced that the Board was a group of dedicated, sincere, patriotic individuals. They were not lawyers, they were not interpreters in a strict sense of the law although called upon to interpret and enforce the regulations which have the force of law, and, consequently, one can see how while in the performance of their difficult duties of providing sufficient men for the Armed Forces and the difficult task that faces them therein that such interpretation could be wrongfully made.
It is my opinion that the Court must issue a writ of habeas corpus calling for the release of this registrant from the Army as a result of an illegal classification and induction. The Court reaches this conclusion because of three reasons:
First: The Board misinterpreted the meaning of the Selective Service Regulation 1622.30, supra. The Clerk of the Board, Mildred Freer, testified that the Board gave no consideration to the facts of each particular matter, but interpreted such regulation to mean that any registrant separated from his wife must be placed in I-A regardless of the fact that the registrant may be providing support for the wife and children and his induction may mean a hardship upon either the wife or children economically. Consequently, when the petitioner appeared before the Board they were in the frame of mind that they had no discretion in the matter and he did not get a fair hearing.
The Clerk of the Board also testified that even though the facts disclosed that the wife had put the husband out at the point of a gun, that if he was not living in the home with the wife and children the regulations required him being classified by the Board as I-A.
This Court thinks that this is an erroneous interpretation. The Board has the power and should judge each case on its particular facts and make such classification as it thinks proper.
Second: The Board placed in the file of the registrant memoranda noting anonymous telephone calls and messages to the effect that the registrant was living with another woman. While the Clerk of the Board testified that this information was not taken into consideration by the Local Board, she did testify that such memoranda was placed in the file when it was sent to the Appeal Board at State Headquarters and we must presume it was considered by them when such Appeal Board denied the registrant's appeal.
It is not the thought of the Court that the Board should be bound to only receive such information as would be admissible in a court of law in a judicial proceeding; the Board must rely upon their own good judgment as they see fit. However, it certainly casts a shadow on the question of fairness if they would take into consideration information volunteered to them anonymously without any consideration as to veracity. However, if they receive such information and consider it, then the State Appeal Board should know whether or not they gave consideration to anonymous information whatever. On the other hand, as affecting this case, if they did not give consideration to anonymous information it should not have been included in the registrant's file when the file was forwarded to the State Appeal Board. This most likely could and did seriously affect the judgment of such State Appeal Board.
Third: The record is completely confusing as to what rights were explained to the registrant as to his right of appeal on any classification. This is compounded by the letter in the file under date of June 14, 1967, written by Mrs. Freer, the Clerk of the Board, to the registrant, as follows:
"This is to advise you that an appeal can only be made within (30) days after you ...