The opinion of the court was delivered by: DOOLING
The following are the special findings of fact herein:
1. Defendant was born April 17, 1940.
2. Defendant registered under the Selective Service System with Local Board No. 67, Far Rockaway, New York, on April 21, 1958; in his classification questionnaire, filed May 20, 1958, defendant stated that he was a full-time student at New York University and expected to receive a Bachelor of Science degree in June 1961.
3. On June 16, 1958, defendant was classified 1A.
4. On June 17, 1958, the Board mailed a 1A Classification Notice to defendant on Form 110.
5. On May 1, 1959, defendant was transferred to Group III (non-volunteers in Class 1-A who have attained the age of 19 years and have not attained the age of 26 years and who are unmarried, 32 C.F.R. § 1631.7(a)(3)).
6. In June 1961 defendant graduated from New York University with a degree.
7. Defendant never sought or was granted a student deferment.
8. On March 12, 1962, a DD Form 44 was submitted to the Board stating that defendant had enlisted in the USAF Ready Reserve on March 7, 1962, and was serving satisfactorily.
9. Defendant had not enlisted in USAF Ready Reserve or any Ready Reserve unit; the DD Form 44 was false; defendant did not sign the DD Form 44, nor does it purport to be signed by him; there is no direct evidence of the identity of the person who procured the filing of DD Form 44.
10. On March 18, 1962, defendant married; defendant did not advise the Board of his marriage until February 1967.
11. On April 16, 1962, the Board classified defendant 1D (enlisted member of reserve component, ROTC etc., 32 C.F.R. § 1622.13(1), 1962 ed.)
12. On April 17, 1962, the Board mailed to defendant a Notice of Classification 1-D.
13. Registrants who enlist in the Ready Reserve before they are ordered to report for induction are deferred from training and service under 50 U.S.C. App. § 456(c)(2)(A).
14. Defendant was deferred from training and service as long at the 1-D classification continued at least until approximately March 7, 1966.
15. There is no evidence that defendant ever communicated (before 1967) with the Board about the 1-D classification.
16. Defendant's registration number is 50-67-40-119, that is, 50 for New York City; 67 for Local Board No. 67; 40 for his year of birth; and 119 for defendant's sequence number among his Board's registrants born in 1940.
17. Local Board No. 67 delivered Class 1-A Group III non-volunteer registrants born in 1940 for induction in response to calls commencing with Call No. 159, delivery date, September 26, 1963; non-volunteer registrants born in 1941 were called in regular order commencing not later than Call No. 161 of November 27, 1963.
18. If defendant's classification of record had remained 1-A, Group III he would have been included under a Call Number not later than No. 161 of November 27, 1963.
19. On March 18, 1962, the date of defendant's marriage, a registrant who was married was, except in a case of hardship to his wife within the meaning of 32 C.F.R. § 1622.30(b)(1) (as then last amended on June 18, 1957, 22 F.R. 4289), continued in Class 1-A and in Group III, 32 C.F.R. § 1631.7(a)(3), as then last amended on October 22, 1957, 22 F.R. 8,288. See finding 39C, infra.
20. 32 C.F.R. § 1631.7(a)(3) was amended on September 10, 1963, to transfer married men from Group III to Group IV (28 F.R. 9,865).
21. Local Board No. 67 has not called any registrants from Group IV, or from Group V (which latter group is made up of non-volunteers who are over 26; registrants are called from Group V youngest first).
22. 32 C.F.R. § 1622.30(a), until amended on March 14, 1963, had in ultimate effect provided that (except in hardship cases under Section 1622.30(b)) a registrant was not eligible to Class 3-A by reason of the birth of a child born after August 25, 1953; on March 14, 1963, Section 1622.30(a) was amended (28 F.R. 2,615) to provide broadly that a registrant who had a child with whom he maintained a bona fide family relationship in their home "shall be placed" in Class 3-A. At the same time Section 1622.30(c)(1) continued the definition of "child" as including a "child from the date of its conception," but it also continued the provision of Section 1622.30(c)(3) that "No registrant shall be placed in Class 3-A under paragraph (a) of this section because he has a child which is not yet born unless prior to the time the local board mails to him an order to report for induction which is not subsequently cancelled there is filed with the local board the certificate of a licensed physician stating that the child has been conceived, the probable date of its delivery, and the evidence upon which his positive diagnosis of pregnancy is based."
23. On March 30, 1964, defendant and his wife became the parents of a child; defendant did not advise the Board of the birth of his child until February 1967, and he did not at any time before the child's birth furnish to the Board medical evidence of the child's conception as outlined in 32 C.F.R. § 1622.30(c)(3). The earliest call on which 1940 registrants in Local Board No. 67 were listed in regular order of call was Call No. 159 of September 26, 1963, prepared on September 10, 1963; on the latter date defendant, if he had advised the Board of his marriage, would have been entitled to be placed in Group IV and to have been excluded from the call, and, if he had advised the Board of his wife's pregnancy, would have been eligible to be placed in Class 3-A and to be excluded from the call.
24. On August 26, 1965, 32 C.F.R. § 1631.7(a)(3), (4) was amended to limit Group IV to registrants married before the effective date of the amendment and to redefine Group III to include both unmarried registrants and registrants married after the effective date of the amendment (30 F.R. 11,129).
25. On March 7, 1966, defendant's local board file was forwarded to the New York City Selective Service System Headquarters at the latter's request.
26. By letter of December 22, 1966, the Federal Bureau of Investigation of the Department of Justice advised the Board that the United States Attorney had reviewed defendant's case as one in which a 1D deferment had been received as a result of submitting a fraudulent DD Form 44, and that the United States Attorney had indicated that the file of such a registrant, who through his own connivance or that of others had been "afforded a sanctuary from the draft," should be promptly reviewed to make the registrant ready for early induction, if possible, but that such a registrant should not be inducted without notice to the United States Attorney so that he could then decide whether to prosecute or let the induction go forward.
27. By letter of January 26, 1967, the Chief, Legal Division, of the New York City Headquarters of Selective Service System returned the defendant's file to the Board, and advised the Chairman of Local Board No. 67 that the F.B.I. had advised and he understood that the local board had also been advised that defendant was not, nor had he been when the DD Form 44 was filed, a member of the Reserves or of the National Guard and that the Form was fraudulent; the Chief of Legal Division suggested that the Board consider declaring defendant delinquent "for failure to ...