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March 17, 1954


The opinion of the court was delivered by: GALSTON

The defendant is charged with violating the Universal Military Training & Service Act of 1948, as amended, for alleged willful failure to obey a duly constituted order of the local selective service board to report for induction. 50 U.S.C.A.Appendix, § 462.

The defendant waived a trial by jury. The defendant registered on November 26, 1948 with Local Board No. 2, Islip, Suffolk County, New York, and executed a Classification Questionnaire on December 29, 1950. On or about March 21, 1951, he executed and returned to the local board a special form for conscientious objectors. He was classified I-A-O on March 28, 1951.

 On May 5, 1951 the local board received a letter from the defendant stating that by reason of his religious belief he was opposed to non-combatant as well as combatant service. He requested a IV-E classification. Pursuant to an order to report for armed forces physical examination, the defendant reported on May 9, 1951 and was found acceptable for service in the armed forces. On May 15, 1951 the local board classified the defendant as I-A.

 His Selective Service System file was reviewed by the Appeal Board for the State of New York on June 4, 1951, and the registrant was found not eligible for either I-A-O or IV-E, by a vote of 5 to 0 of the Appeal Board. Pursuant to section 6(j) of the Universal Military Training and Service Act of 1948, as amended, 50 U.S.C.A.Appendix, 456(j), the Appeal Board referred the registrant's claim for exemption from training and service to the Department of Justice for inquiry and hearing.

 A hearing was conducted on September 19, 1951 by a hearing officer, duly designated by the Department of Justice. The hearing officer recommended that the registrant be retained in I-A. In a communication dated January 2, 1952, the Department of Justice informed the Appeal Board that after examining and reviewing the registrant's entire file and record the Department concurred in the recommendation made by the hearing officer, and recommended that the registrant should not be classified as a conscientious objector. The hearing officer's report was forwarded to the Appeal Board for its consideration. On February 4, 1952, the Appeal Board for the State of New York, Northern District, by a vote of 4 to 0, classified registrant in I-A. The registrant was duly notified of the action of the Appeal Board.

 A notice, dated February 20, 1952, was sent to the registrant ordering him to report for induction on March 11, 1952. On February 21, 1952, the registrant appeared at the local board and executed a memorandum stating:

 I shall not appear for induction.'

 The registrant failed to report for induction on March 11, 1952. He was classified as I-A delinquent on April 23, 1952.

 It is the defendant's contention that the classification was erroneous. On the other hand the government contends that the defendant is not entitled to judicial review of the validity of the classification since he failed to report for induction. It is also the government's position that there is a basis in fact for the classification given.

 In Falbo v. United States, 320 U.S. 549, 64 S. Ct. 346, 349, 88 L. Ed. 305, the Supreme Court held that there was no constitutional or statutory requirement that Congress provide for judicial review of the validity of local boards' classifications before final acceptance of the registrant for national service. In affirming the defendant's conviction for failure to report for induction or assignment to work of national importance, the Court held that he was not entitled to the defense that he was erroneously classified, since he had failed to report 'for the last step in the selective process.' The later case of Estep v. United States, 327 U.S. 114, 66 S. Ct. 423, 90 L. Ed. 567, held that the selective process is to be regarded as completed, for purposes of judicial review, where the registrant reported for induction and was finally accepted, but refused to submit to induction.

 The defendant here contends that the selective process was exhausted administratively when he completed his preinduction physical examination and was found acceptable for service, citing Gibson v. United States, 329 U.S. 338, 67 S. Ct. 301, 91 L. Ed. 331. In Dodez v. United States, decided together with the Gibson case, supra, the Court held that the failure of the defendant classified as a conscientious objector, to report for assignment to work of national importance did not foreclose him from making the defense that his classification was invalid. The decision was based on the fact that the regulations then applicable provided for a pre-induction physical examination and that by amendment between the time of the Falbo case and issuance of the order to Dodez to report, the regulations applicable to Dodez providing for physical examination by the camp physician and consequent possible rejection at the camp, was eliminated. In the circumstances the Court felt that the registrant had performed all requirements affording possibility of relief, and that the administrative process had been completed.

 In the Dodez case the Supreme Court distinguished the Falbo case on the basis of the regulations applicable in each instance, particularly the regulations having to do with the requirement of a physical examination at the time of induction. In the case at bar, it appears that Special Regulations No. 615-180-1 of the Department of the Army, issued April 27, 1950 were in force on February 20, 1952, the date of the order notifying the defendant to report for induction. Paragraph 22 of the regulations provides:

 'Registrants found acceptable for military service on preinduction physical examination and reporting to an induction station for induction within 21 to 120 days of such examination will be given a thorough physical inspection, with all clothing removed, for contagious diseases, apparent defects, and intercurrent illness or injury.'

 As noted, the defendant was given a preinduction physical examination on May 9, 1951. The order to report for induction required the defendant to report on March 11, 1952, which was more than 120 days after the physical examination.

 Apparently the government takes the position that the defendant comes within the regulations in respect to 'postponed registrants', since he was not ordered to report for induction within the 120-day period. Paragraph 27c of SR 615-180-1 provides for induction of postponed registrants without a new physical examination. However, the section also makes the induction subject to the following:

 'No condition has intervened which alters the original physical qualification based on the preinduction physical examination. In order to ascertain the above, each registrant will receive a careful and thorough physical inspection at the time he reports for induction.'

 Paragraph 2 of SR 615-180-1 defines 'postponed registrant' as follows:

 'A postponed registrant is a registrant who, having been classified as available and found acceptable for service, has been ordered to report for induction in his proper turn and then had the date of reporting postponed to a later date * * *.'

 Insofar as the record here discloses, the only order to report for induction is that dated February 20, 1952. Moreover, there is nothing to indicate that the date of reporting on this, or any other order was ever postponed to a later date. It seems, therefore, that the defendant's status is ...

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