The opinion
FEINBERG, Circuit Judge
(dissenting) :
I emphatically dissent from this reversal of an experienced district judge who is certainly more familiar than any of us with what constitutes “extreme hardship” for a widow in Buffalo. The basis of the reversal is an afterthought never mentioned by the local draft board and first dreamed up by a government attorney in searching for some way to convince the district judge that the board had not acted arbitrarily. But that is exactly how the board appears to have acted, first pressuring appellee Donald Samuel Zelman to join the Reserves or the National Guard and then, when he failed to do so, revoking his III-A classification upon no apparent basis after a five-minute meeting. To make matters worse, the majority opinion ignores precedent that would require at the very least a remand here rather than an outright reversal of the granting of the writ.
The question before the district court was whether the local board had a “basis in fact” for the change in Zelman’s classification in September 1969 from III-A to I-A. Prior to that time, Zelman had twice been classified III-A, once in November 1968, and again in March 1969, on the ground that his “induction into the armed forces would result in extreme hardship” to his widowed mother, who was “dependent upon him for support.” 32 C.F.R. § 1622.30 (a). At the time of the first III-A classification, Zelman’s father had been dead for some 22 months; he had left a family residence, some insurance, and a modest savings account. Before the first classification, the house had been sold and Zelman had so informed the board. Although it is not precisely clear in the record, Zelman’s mother was apparently thus left with a net amount of about $13,000 in savings. No one argues that *625 either of the two earlier III-A classifications was erroneous or that Mrs. Zel-man should have been required to “delve into her meager investment.” Lewis v. Secretary, Dep’t of Army, 402 F.2d 813, 820 (9th Cir. 1968). The question immediately arises, then, why did the board change Zelman’s classification to I-A in September 1969 ?
The record does show rather clearly one possible “basis in fact” for the reclassification : appellee’s failure to enlist in some unit of the armed forces. According to the minutes of the March 1969 meeting:
The local board asked the registrant about getting into the Reserves or the National Guard and he said that he’s been trying to get into them.
At the September 1969 meeting, at which he was reclassified I-A, the board again asked “if he ever tried to get into the Reserves or the National Guard.” Again, at the November 1969 meeting, the board asked “if he was going into the National Guard,” and finally, at a March 1970 meeting, the board questioned, ambiguously, “Didn’t [appellee] ever think that selective service would expect you to go into the service.” Whether or not a citizen should seek alternative military service (with less active duty) if spending two years in the army would inflict an extreme hardship on his widowed mother, the board’s concern about appellee’s failure to enlist was wholly improper. As Chief Judge Henderson recognized, that failure could not provide “a legitimate basis” for reclassification, and the majority does not directly dispute that proposition. 1
So the question still remains: Was there a proper reason for changing Zelman’s classification from III-A to I-A? The majority agrees with Chief Judge Henderson that the local board could not reclassify appellee on its own motion unless its action was “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). The wording of that regulation certainly suggests that the “facts” relied upon in court to justify a local board’s action should be “facts” of which the board was aware. The majority speculates that the “basis in fact” for the change was “[t]he availability of the Class Q allotment” to support Zelman’s mother. 2 But a reading of the record discloses not a word by the local board about the allotment in any of the five board meetings that appellee attended. Moreover, not only would the availability of a Class Q allotment not have been conclusive as a matter of law, 3 but also I doubt whether the sketchy and confusing record here on that issue would afford a “basis in fact” for the board’s action. 4
*626 But even if we make the improbable assumption that the board really did focus on the Class Q allotment, affirmance of the board’s decision is still inappropriate. Where, as here, a board has given no reason for its reclassification and a strong probability exists that the decision was based on an improper ground, I think that the decision cannot be sustained. See United States v. French, 429 F.2d 391 (9th Cir. 1970); United States v. Jakobson, 325 F.2d 409, 416-417 (2d Cir. 1963), aff’d sub nom. United States v. Seeger, 380 U.S. 163 , 85 S.Ct. 850 , 13 L.Ed.2d 733 (1965). 5 At the very least we should order a remand and give the Government an opportunity to supplement the record on the question of which basis the board actually relied upon. See United States v. Deere, 428 F.2d 1119 (2d Cir. 1970); United States v. Lenhard, 437 F.2d 936 (2d Cir. 1970). The majority cites Weissman v. Officer of the Day, 444 F.2d 1326 (2d Cir. 1971), in support of its position, but with all respect that case reinforces my view. The court there took great pains to point out that it was “not confronting a case . . . where the board may have relied on an illegitimate ground in refusing the classification.” 444 F.2d at 1328 . This is just such a case and falls squarely within even the language of Weiss-man quoted by the majority, since one of the grounds “upon which the board might have relied” was not “legally correct.” In any event, the closest case is not Weissman , in which the registrant never did receive a III-A classification, but Lewis v. Secretary, Dep’t of Army, supra, relied on by Chief Judge Henderson, which held a reclassification from III-A to I-A improper.
While a remand would, therefore, ordinarily be proper, I believe under the circumstances of this ease an affirmance is more appropriate. Not only is the record inadequate, 6 but the very nature of a III-A classification calls for a continuing review of changing circumstances. Rather than having another hearing in court as to what draft board members were thinking of two and a half years ago, it seems wiser for the board to consider the dependency claim anew on the basis of the facts as they now exist. Cf. United States v. Jakobson, supra, 325 F.2d at 417 . I realize that quite apart from any re-examination of the III-A claim, there may now be factors that could stand in the way of drafting appellee. But, for the reasons stated above, I would not regard that as a calamity.
. The majority hypothesizes that the board may have made an “offer” to trade a temporary hardship deferment in return for appellee’s promise to enlist in the reserves. The record discloses no such offer. If anything, since the board did not mention the reserves until its second meeting with appellee, we may well conclude that the initial III-A classification was based only upon consideration of relevant circumstances — circumstances which apparently did not change.
. Since the majority offers no other “basis in fact” for the reclassification, it is not necessary to discuss the Government’s suggestion that changes in “family conditions” justified the reclassification, other than to note that Chief Judge Henderson was not so persuaded and that I would not overrule his determination.
. Thus, 32 C.F.R. § 1622.30 (d) provides:
In the consideration of a dependency claim, any payments of allowances which are payable by the United States to the dependents of persons serving in the Armed Forces . . . shall be taken into consideration, but the fact that such payments of allowances are payable shall not be deemed conclusively to remove the grounds for deferment. . . . [Emphasis added.]
. The majority places great reliance on ap-pellee’s statement in the Dependency Questionnaire dated July 30, 1969 that his mother’s “Approximate Annual Income” was $1,100 and that he contributed an additional $1,300. The relatively small difference of $200 is crucial because the Class Q allotment is available only if the inductee contributes more than one- *626 half of his dependent’s total income. However, I doubt whether this single entry in the record can support the weight placed upon it. First, the questionnaires in this case — including the July Questionnaire — are fraught with obvious errors. Second, the July Questionnaire itself only requested “Approximate” figures. And third, at the critical September 1969 meeting, the board was informed that Mrs. Zelmnn had been working, yet apparently asked no questions about how much her earnings supplemented the crucial $1,100 figure. Indeed, the March 1970 meeting indicates that Mrs. Zel-man’s pension income was $1,200 annually, supplemented by perhaps several hundred dollars interest income on savings. The record is thus devoid of any indication that the board attempted to elicit complete data or that it determined the accuracy of the data supplied.
. I do not suggest, as the majority implies, 457 F.2d at 624, that the reclassification decision should not be sustained simply because the board did not set forth its reasons, a procedure that unfortunately did not violate the statute as then written. My point is rather the reverse, not the absence of specified reasons but the glaring presence in the record of an improper reason for the reclassification. It is the existence of that strong possibility that dictates a remand at the very least.
. See note 4 supra.