456 F2d 1036 Ware v. Commanding General Fort Campbell Kentucky E

456 F.2d 1036

Larry Gordon WARE, Plaintiff-Appellant,
Resor, Secretary of the Army, et al., Defendants-Appellees.

No. 71-1817.

United States Court of Appeals,
Sixth Circuit.

March 6, 1972.

James S. Hyde, Jr., Chattanooga, Tenn., for appellant; Manly A. Watson, Chattanooga, Tenn., on brief.

James H. Barr, Louisville, Ky., for appellees; George J. Long, U. S. Atty., Louisville, Ky., on brief.

Before WEICK, EDWARDS and PECK, Circuit Judges.


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Appellant appeals the dismissal of his petition for writ of habeas corpus seeking release from the United States Army. Appellant acknowledges that the District Court had found that the Local Board had a "basis in fact" for denying petitioner a continuation of his II-A classification. But appellant claims as reversible error the District Court's failure to grant the petition on the ground that the Local Board did not give any reasons for its decision. In this regard appellant relies entirely upon this court's recent opinion in United States v. O'Bryan, 450 F.2d 365 (6th Cir. 1971).


The holding in O'Bryan, which involved a claim to conscientious objector status, was as follows:


"Where it is clear that a prima facie case was established, we conclude that in conscientious objector cases, it is essential to the validity of an order to report that the board state its basis of decision and the reasons therefor, . . ." United States v. O'Bryan, supra at 371. (Emphasis added.)Appellant's reliance upon O'Bryan for requiring Selective Service Boards to state their reasons in relation to nonconscientious objector cases is misplaced.1




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The judgment of the District Court is affirmed.


Note, however, that the Selective Service System has published a notice of proposed rule making as follows:

"Sec. 1623.4 Action to be taken when classification determined.

(c) In the event that the local board classifies the registrant in a class other than that which he requested it shall record its reasons therefor in his file. The local board shall inform the registrant of such reasons in writing at the time it mails to him a notice of his classification." 37 FED.REG. 480 (Jan. 12, 1972).