The opinion of the court was delivered by: LEIBELL
It is an offense under Section 12(a) of the Universal Military Training and Service Act of 1951 for any one to evade or refuse registration or service in the armed forces or to refuse to perform any duty required of him under the rules and regulations issued under the Act. T. 50 App. § 462(a). Regulation § 1632.14(b)(5), issued under the 1951 Act, provides that 'Upon reporting for induction it shall be the duty of the registrant * * * to submit to induction'.
Defendant was tried before me without a jury, a jury trial having been formally waived.
The defendant was born on May 31, 1926 in Des Moines, Iowa. He later lived in the Los Angeles district in California. In September 1944 he became an apprentice seaman and worked as a clerk in the administrative personnel of the Maritime Service at Avalon, California. In July 1945 he shipped out on a voyage from Portland, Oregon, to Eniwetok Atoll and returned by way of the Hawaiian Islands. He got a medical deferment from his Local Selective Service Board because of an illness he contracted at Eniwetok. He became a student at the University of California and was a student at the University when the 1948 Selective Service Act was passed. He registered with Local Board 98 at Los Angeles on September 8, 1948, was put in Class I-A. He received a classification card to that effect on October 26, 1948, and continued his studies at the University of California.
In the summer of 1949 he applied for and received a passport to travel to Europe 'on a project sponsored by the United States National Student Association'. His local board granted him permission to leave the country for three months. He went to Holland, France, Switzerland, Germany, Prague, Czechoslovakia, Warsaw, Poland and Budapest, Hungary. On June 30, 1950, his local board again permitted him to go to Europe until September 10, 1950 and he went to Holland, France, Germany, Copenhagen, Denmark, Stockholm, Sweden, Helsinki, Finland and Oslo, Norway, on a similar project. On March 27, 1952, he applied for a renewal of his passport. It was part of his plan to go to Yugoslavia. The State Department Disapproved his application.
On June 15, 1950, defendant was registered as a graduate student at Columbia University. In September 1950, having graduated from the University of California, he entered the School of Journalism at Columbia University as a graduate student. On September 20, 1950, his Selective Service classification was changed from Class I-A to Class II-A(S). The minutes of the meeting of Local Board 98 on September 20, 1950, show that he was put in Class II-A on that date, with no expiration date for the deferment. But the endorsement of the Board's action on the registrant's questionnaire reads: '2A to May 15, 1951'. Defendant received a card (form 110) which was mailed to him by his Local Board on September 21, 1950. It stated that he had been 'classified in Class II-A until May 15, 1951'. This date becomes important in view of subsequent developments.
On March 8, 1951, the defendant wrote his local board a long letter seeking information. In the second paragraph he stated: 'I am at present studying in the Graduate School of Journalism, Columbia University, with a 2-A classification until May 15, 1951'. He asked if he could qualify during the thirty day period after the end of the semester 'to find draft deferred employment', and what was 'the minimum guaranteed time between the issuance of an induction order and actual induction'; also whether he could find out prior to his pre-induction physical whether he was physically unqualified for induction, because of his eyes; and finally he stated that he contemplated another trip to Europe that summer to England and Yugoslavia, from June 26th to September 14th, under the auspices of the United States National Student Association, for which he sought permission. He also volunteered the information that he was 'in a position to accept a three-month job in the period before induction' and he added: 'My prospective employer naturally desires to know what my draft status would be during this period (three months beginning approximately June 15)'.
The 'group coordinator' of the Local Board, answered his letter on March 16, 1951. He was informed that the thirty day period to find draft deferred employment applied only to graduates in the scientific field. He was also told it would be necessary for him to be reexamined physically at the expiration of his deferment and that it would be impossible to issue any travel permit until the result of his physical examination, because, if found acceptable, permission to leave the country would be denied.
On May 28, 1951, Garst wrote his Local Board that on May 1, he was 'sworn into the New York National Guard, assigned to Headquarters Company, 2nd Battalion, 7th Regiment' and that Form 44 would be processed by the National Guard for forwarding to the Local Board.
On November 30, 1951, Garst again wrote his Local Board and then informed it that he had been 'unable to complete' his 'enlistment in the New York National Guard' because of its reluctance to enlist registrants of out-of-state local boards. The letter went on to describe a new attempt he had made to get into an organization that would enable him to obtain a deferment. He wrote the board that it had become his 'Intention to enlist in the 400th Military Government, Organized Reserve Corps, U.S. Army' with headquarters in New York, and that he had been 'found acceptable for enlistment' but due to the 1951 Selective Service Law the Major in charge said that he 'could not initiate deferment request' and that defendant would have to do so. Accordingly Garst made the request and stated that his university degrees 'most appropriately' qualified him for this work. On December 11, 1951, the clerk of the Local Board wrote Garst that 'with the new regulations the Local Board cannot issue a statement granting a deferment to any registrant who enlists in a reserve unit after February 1, 1951'. Not to be deterred, Garst wrote the Local Board on December 19, 1951, and asked for a written statement of the Board's policy on deferring registrants who enlist in a reserve unit after February 1, 1951. The Board advised him on January 8, 1952, that any registrant who became a member of a Reserve Component on or after July 1, 1951, 'may be processed for induction when his number is reached'.
On January 31, 1952, Local Board No. 98 mailed Garst an 'Order to Report for Armed Forces Physical Examination' on Wednesday, February 13, 1952 (Form No. 223). On February 12, 1952 (one day before he was to report) Garst wrote his Local Board 98 in California that he be transferred for armed forces physical examination to the local board having jurisdiction over his then address, given as 315 W. 74th St. New York 21, N.Y. The request was approved February 21, 1952 and New York Local Board No. 5 at 307 West 49th Street, New York, was notified to that effect by the California Local Board No. 98, through Form No. 222 mailed February 21, 1952. Not having heard from the New York Local Board No. 5, the Clerk of Local Board 98 in California wrote the New York board on March 26, 1952, reminding it that Garst on February 21, 1952, had been transferred to the New York board for a physical examination and that 'to date the physical papers have not been returned to this local board'. On April 1, 1952, the New York Local Board No. 5 wrote Local Board No. 98 of California that the registrant Garst 'is going to be ordered for Physical Exam. April 24, 1952'. The April 1st letter was received by Local Board 98 on April 7, 1952. Garst was given a physical examination on April 24, 1952. A certificate of acceptance of Garst for induction was signed in New York, April 24, 1952 and later forwarded to the Local Board 98 in California, where it was received May 6, 1952, just twenty-five days before Garst became twenty-six years of age.
Apparently some one at Local Board 98 woke up to the fact that Garst would be twenty-six years old on May 31, 1952. Local Board 98 on May 28, 1952, with the chairman and secretary present, entered the following on the minutes: 'The following Registrant's (Garst's) file was reviewed and Liability was extended to the age of 35'. The questionnaire was endorsed 'May 28, 1952, Liability extended to age 35.'
On May 28, 1952 the Chairman of Local Board No. 98 wrote Garst as follows:
'The Local Board, in session on May 28, 1952, upon examination of your file and the fact that you were in a deferred classification on June 19, 1951, in accordance with the Universal Military Training and Service Act, as amended June 19, 1951, you are hereby notified that on this date your liability to Military Service has been extended to the age of 35 and ...