Samuel Obediah Miller, Petitioner-appellant, v. the United States Army, Respondent-appellee, 458 F.2d 388 (10th Cir. 1972)

The opinion filed herein on August 27, 1971, was withdrawn on August 30, 1971, to avoid possible inconsistency with Polsky v. Wetherill, 10 Cir., 438 F.2d 132.

Petitioner-appellant, who voluntarily enlisted in the armed forces, sought release therefrom as a conscientious objector. Release was denied and he brought habeas corpus. In reliance on Noyd v. McNamara, 10 Cir., 378 F.2d 538, cert. denied 389 U.S. 1022, 88 S. Ct. 593, 19 L. Ed. 2d 667, the district court dismissed the petition because petitioner had not exhausted available military remedies, including the court martial process. In Polsky we reaffirmed the rule stated in Noyd v. McNamara. The Supreme Court vacated our judgment and remanded the case for further consideration, Polsky v. Wetherill, 403 U.S. 916, 91 S. Ct. 2232, 29 L. Ed. 2d 693. Thereafter, the court of appeals en banc considered Polsky on its merits and directed that the writ issue. See opinion filed on March 2, 1972, in 10 Cir., 455 F.2d 960.

Noyd v. McNamara no longer has any vitality. The appellant in the case at bar is entitled to consideration of his claim on the merits. Accordingly, the judgment is reversed and the case is remanded for trial on the merits.