Scott McFarlane v. Colonel Guy Deyoung, Commanding Officer, United States Army, Presidio, San Francisco, California

This appeal from a denial of a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241 (c) involves the obligations of a soldier in the United States Army for alleged absence from duty without proper authority, as set forth in Beaty v. Kenan, 420 F.2d 55 (9th Cir. 1969).

The matter was determined by the district court with the assent of the parties, based upon the respondent’s return to an order to show cause. The return included all the records upon which the district court based its findings and conclusions. The case does not, therefore, involve the usual appellate review where deference must be given to the fact finding process of the trial courts. Costello v. Fazio, 256 F.2d 903 (9th Cir. 1958); Brown v. Cowden Livestock Co., 187 F.2d 1015 (9th Cir. 1951).

The district court determined that the case was factually distinguishable from Beaty . We hold that the distinctions cannot remove this case from Beaty .

The record reveals that on September 4, 1969, after petitioner reported for duty, his father was informed by the Army officer investigating the matter, that he, the officer, thought that the petitioner had made a reasonable effort to let the Army know…