Opinion
No. 33263.
April 30, 1954.
Gladstein, Andersen Leonard by Allan B. Rotsky, San Francisco, Cal., Margolis, McTernan Branton by Ben Margolis, Los Angeles, Cal., for petitioner.
Lloyd H. Burke, U.S. Atty., C.E. Collett, Asst. U.S. Atty., San Francisco, Cal., J.W. Booth, Lieutenant Colonel, Judge Advocate, Pueblo, Colo., for respondent.
Petitioner by this habeas corpus petition, seeks his release from respondent's custody. The pleadings disclose that petitioner was inducted as a private in the U.S. Army under and pursuant to the provisions of the Act of Sept. 9, 1950, 50 U.S.C.A.Appendix § 454(i)(1), providing for the induction of doctors and dentists into the armed services, and commonly known as the Doctor's Draft Law. The pleadings further disclose that the "petitioner at all times has been and is now fully willing and desirous of serving his country as a medical doctor in the United States Army provided that he is permitted to serve without illegal and unconstitutional discrimination against him."
In a case similiar to this one involving a writ of habeas corpus, Nelson v. Peckham, 4 Cir., 210 F.2d 574, the Circuit Court directed the District Court to order that appellant be released from service unless accorded rank or grade as provided by the statute.
In accordance with this decision, and the directions contained therein, and after fully considering all the files and records in said proceeding, and good cause appearing it is by the Court.
Ordered that petitioner herein be discharged from service unless accorded the rank or grade as provided by 67 Stat. 86, 50 U.S.C.Appendix, § 454a.
It is further ordered that respondent's motion to set aside the submission of the writ of habeas corpus herein on the suggestion that said writ is moot is denied.