Donald Zelman was classified I-A by his local draft board and issued a notice of induction. After exhausting his administrative appeals, he sought a writ of habeas corpus which was granted in Western District of New York on the ground that the draft board had had no basis in fact for issuing the I-A classification. The United States has appealed. We reverse.
Judicial review of a draft board’s classification of a registrant has always been restricted to determining whether the board had a “basis in fact” for its determination. Estep v. United States, 327 U.S. 114, 122-123, 66 S.Ct. 423, 90 L.Ed. 567 (1946) ; 50 U.S.C. App. § 460(b) (3). Review of this nature only seeks to ensure that the board has not acted arbitrarily; the reviewing court may not substitute its judgment for that of the board and review is limited to those facts actually presented to the board.1 Cox v. United States, 332 U.S. 442, 68 S.Ct. 115, 92 L.Ed. 59 (1947); Helwick v. Laird, 438 F.2d 959, 965-966 (5th Cir. 1971); Keefer v. United States, 313 F.2d 773, 776 (9th Cir. 1963); United States v. Ruppell, 278 F.Supp. 287, 289-290 (E.D.N.Y. 1968); see Silberberg v. Willis, 420 F. 2d 662, 665 (1st Cir. 1970); Bates v. Commander, 413 F.2d 475, 477 n. 2 (1st Cir. 1969). Applying these principles to the evidence before the board at the time the board reclassified Zelman, we find that the board did have a basis in fact for classifying Zelman I-A in September 1969. Accordingly, we reverse the order of the district court.
In September 1968, Zelman, who had recently been classified I-A by the local draft board, requested that his classification be changed to III-A on the ground that his induction into the armed forces would cause his mother extreme hardship. 32 C.F.R. 1622.30. Zelman filed a dependency questionnaire which indicated that his mother’s annual income was $1,200 and that he contributed $875 annually to her support. He further stated that his mother’s house had been recently sold, but the sale price was not revealed.2
On November 7, 1968, Zelman appeared before the board with his mother. Zelman told the board that his father had died in January 1967 and he was his mother’s sole support, although he had recently been fired from his job. He had an older brother in the armed forces, but his brother had a wife and child and could not help support his mother. Mrs. Zelman stated that she had been under a strain since her husband had died and did not work. She received $103 per month from Social Security.
Based on this information, the board granted Zelman a III-A classification until February 1969.
On January 26, 1969, Zelman filed another dependency questionnaire with the board. He indicated that his mother had an approximate annual income of $100 (obviously an error) and that he contributed approximately $1100 annual
Zelman appeared before the local board on March 13, 1969. The board inquired whether there had been any changes in his status since his last appearance before the board and Zelman said that his brother had been released from the armed forces. Zelman’s III-A classification was then continued for six months.
On July 30, 1969, Zelman filed a dependency questionnaire which indicated that his mother’s annual income was $1100 and that he contributed $1300 annually to her support.
On September 4, 1969, Zelman again appeared before the board. In response to the board’s inquiry about changes in circumstances, Zelman replied that he had a new job and that his mother was working, but that “she is not going to stay because she is not able to keep up with it.”
Based on the information in the latest dependency questionnaire and the other information before it, the local board classified Zelman I-A.
Zelman then requested a personal appearance before the local board pursuant to 32 C.F.R. 1624.1 to present new information to the board that might warrant the reopening of the I-A classification. On November 6, 1969, he appeared before the local board and told the board that he was now earning $170 per week and that his mother was no longer working. The board refused to reopen the classification. Zelman then appealed to the Western District Appeal Board for New York and, on January 14, 1970, the appeal board by a 4-0 vote affirmed the I-A classification.
On February 17, 1970, Zelman was mailed a notice of induction which required him to report for induction on March 18, 1970. Zelman then sought a writ of habeas corpus alleging that the local board had had no basis in fact for classifying him I-A in September.
The district court, finding that there had been no change in the Zelmans’ circumstances from the time that Zelman first was classified III-A to the time he was classified I-A, granted the writ. The court held that 32 C.F.R. 1625.2(b) required that such a change must have occurred before a local board could validly reclassify him.
We agree that no draft classification can be reopened on the local board’s own motion unless the “action is based upon facts not considered when the registrant was classified which, if true, would justify a change in the registrant’s classification.” 32 C.F.R. 1625.2(b). However, on this record, it appears that such a change had occurred.
When Zelman received his III-A classification in November 1968, he was contributing less than half of his mother’s support. Similarly, when the draft board continued his III-A classification in March 1969, he was still contributing less than half of his mother’s annual income. However, by September 1969, Zelman himself informed the draft board that he was contributing more than one-half of his mother’s support, i. e., $1300 out of an approximate total income of $2500.
A member of the armed forces who is supplying more than one-half of a dependent’s income prior to entry into the service is entitled to an armed forces Class Q allotment which provides $100 per month to the dependent. Based on the information supplied to it by Zelman and his mother, the first time the draft board could have found Zelman eligible for a Class Q allotment was in September 1969.
At that time, Zelman was supplying approximately $108 per month to his mother. The Class Q allotment would have provided her with $100 per month and, obviously, his induction into the armed forces would not have caused a change in her financial circumstances. If a registrant’s departure from civilian life will not affect his family’s financial
It is true that the local board did not expressly rely upon the availability of a Class Q allotment to support its decision. But local boards then were not required to give written reasons for their determinations. It sufficed that there was some evidence before the board to justify its conclusions. As we have only recently held in Weissman v. Officer of Day, 444 F.2d 1326, 1328 (2d Cir. 1971), “When a local board fails to identify the ground upon which it based its decision to deny the requested classification . our only inquiry is whether all the grounds upon which the board might have relied were legally correct and whether each of them was supported by a basis in fact.” The availability of the Class Q allotment gave the local board a basis in fact, Estep v. United States, 327 U.S. 114, 122-123, 66 S.Ct. 423, 90 L.Ed. 567 (1946), for changing Zelman’s classification from III-A to I-A. The order of the district court granting the writ of habeas must be reversed.
1.
The dissent suggests that the local board’s classification of Zelman was invalid because the reasoning behind the decision to make the change is unknown. But until the most recent revision of the draft laws, P.L. 92-129, 40 USLW 1, 3 (Sept. 28, 1971), the draft board was not required to give any reasons for its decisions. The only inquiry for a court was whether the board had been palpably unlawful in its classification of a registrant and this was presumed not to be the case if the board had a basis in fact for its determination.
2.
At the hearing before Judge Henderson, Zelman testified that the house sold for $10,000.
3.
The dissent has argued that Zelman’s refusal voluntarily to enter into any branch of the armed services triggered his reclassification from III-A to I-A. Cited in support of this speculation are the board’s three inquiries over the space of a year as to whether Zelman had attempted to enter the Army Reserve or National Guard and his negative replies. The dissent believes that these questions evinced an unfair and vindictive attitude on the board’s part. In the circumstances of this case, however, the opposite conclusion can equally well be drawn. We should not lose sight of the fact that the board twice granted Zelman a III-A classification, hardly an indication of any hostility. In asking Zelman whether he had joined the Reserves, the board may well have been attempting to establish how long Zelman would be carrying a III-A classification that they had come to feel he no longer deserved and at the same time to alert him to the fact that his classification was likely to be changed. Their conduct is quite consistent with an offer to let Zelman join the Reserves rather than be subject to the harsher burdens of the draft. We see no reason to suppose that this civilian agency run by voluntary workers would raise the question of the Army Reserve or the National Guard for vindictive purposes or that the action of the board was thereby tainted.