437 F2d 1211 Cuadra v. R Resor

437 F.2d 1211

Richard CUADRA, Plaintiff and Appellant,
Stanley R. RESOR, as Secretary of the Army et al., Appellees.

No. 26510.

United States Court of Appeals, Ninth Circuit.

December 8, 1970.

Armando M. Menocal, III (argued), Alex Saldamando, Michael S. Sorgen, San Francisco, Cal., for plaintiff and appellant.

Richard Locke (argued), Asst. U. S. Atty., James L. Browning, Jr., U. S. Atty., San Francisco, Cal., for appellees.

Before CHAMBERS, JERTBERG and TRASK, Circuit Judges.


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Cuadra's second application for hardship discharge recited a previous similar application.


Army regulations, under such circumstances, required the army to get Selective Service advice before decision. This was not done. After decision, denying the discharge, with the issue in court, the army then sought Selective Service advice. Selective Service recommended against the discharge. The army reaffirmed its decision.


We think that the patchwork chinking up was wrong and the appellant was entitled to full de novo consideration.


Here the army has trapped itself in the mesh of its own regulations.


The army determinations should be vacated and de novo consideration promptly had by Selective Service and the army. Alternatively the army may require petitioner to promptly reapply and process that application without res judicata implications.


The motion to dismiss is denied. The case is remanded for proceedings consistent herewith.


The present restraining order will continue for four weeks from the date of filing of this opinion.

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Our decision is effective immediately.