A line of cases in our court holds that actions by the armed services that are violative of their own regulations are within the reach of the courts. Naskiewicz v. Lawver, 456 F.2d 1166 (2d Cir. 1972); United States ex rel. Donham v. Resor, 436 F.2d 751 (2d Cir. 1971); Smith v. Resor, 406 F.2d 141, 145 (2d Cir. 1969). Cf. Cortright v. Resor, 447 F.2d 245 (2d Cir. 1971), cert. denied, 405 U.S. 965, 92 S.Ct. 1172, 31 L.Ed.2d 240 (1972); Note, Judicial Review and Military Discipline — Cortright v. Resor: The Case of the Boys in the Band, 72 Colum.L.Rev. 1048 (1972).
The government admits that defendant's claim was never reviewed by USAREC but contends that this was in compliance with Memorandum 121. A failure by the Selective Service to comply with its own regulations, including local board memoranda, will be grounds for a finding of denial of due process. where prejudice can be shown. Naskiewicz v. Lawver, 456 F.2d 1166 (CA2 1972). The provisions of Local Board Memorandum 121 are somewhat obscure.
I. Availability of Mandamus It is clear that there is postinduction jurisdiction to order the armed forces to obey their own regulations developed for the protection of servicemen. E.g., Naskiewicz v. Lawver, 456 F.2d 1166 (2d Cir. 1972); United States ex rel. Donham v. Resor, 436 F.2d 751 (2d Cir. 1971). And it is equally clear that mandamus will lie to enforce this requirement.