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United States v. Messinger

decided: July 23, 1969.

UNITED STATES OF AMERICA, APPELLEE,
v.
IRWIN IRA MESSINGER, APPELLANT



Hays and Feinberg, Circuit Judges and Jameson, District Judge.*fn*

Author: Hays

HAYS, Circuit Judge:

Irwin Ira Messinger appeals from a judgment of the United States District Court for the Eastern District of New York convicting him, after a trial without a jury, on one count of refusing to submit to induction into the armed forces, in violation of 50 U.S.C. App. ยง 462(a) (Supp. IV 1965-68).

We reject appellant's claim that he was improperly refused classification as a conscientious objector, and affirm the judgment.

I.

In 1963 appellant registered with the Selective Service System and in February 1964, he completed a classification questionnaire sent to him by his local board. Series VIII of the questionnaire calls upon a registrant claiming exemption as a conscientious objector to sign his name to a printed statement of conscientious objection. Appellant did not sign the statement. On February 19, 1964, he was classified 1-A.

In January 1965, appellant was sent a current information questionnaire. It did not specifically request information relating to conscientious objection but it did state: "You may attach any additional information you believe should be brought to the attention of the local board." Appellant responded to the questionnaire, indicating that he intended to become a part-time student, but he made no statement pertaining to conscientious objection. On April 21, 1965, he was classified 2-S, the student deferment classification.

Appellant was sent another current information questionnaire in November 1965. He did not return it and, in December 1965, he was classified 1-A and ordered to report for a physical examination.

Appellant wrote to his local board appealing the classification on the ground that he had changed his status from that of full-time to part-time student in order to work to pay for his education and that he intended to become a full-time student in February 1966. The letter contained no indication that he considered himself a conscientious objector.

At the end of December 1965, appellant completed another current information questionnaire in which he made no mention of conscientious objection. At the same time, he executed a dependency questionnaire in which he stated: "I very much want to finish my schooling before going into the service." He testified at trial that he intended this sentence to be understood in its ordinary meaning of unrestricted military service and that its representation was false because, in view of his opposition to war, he did not intend to serve in the armed forces.

On January 25, 1966, the appeal board affirmed appellant's 1-A classification. On February 9, 1966, the local board received a letter from appellant stating that he was a "full time matriculated night student * * * taking 13 credits." The following week appellant was mailed an order to report for induction on March 2, 1966. The local board, acting on its own motion, then rescinded this order and classified him 1-S(c), a classification which permits a registrant to finish the school term during which he was ordered for induction.

In May 1966, appellant executed another current information questionnaire in which he again failed to mention any claim to conscientious objector status. He was reclassified 1-A in June and wrote to request a "personal appeal" on the ground that he would be a full-time student in the fall. After appellant had appeared personally before the local board, it affirmed the 1-A classification. On August 16, 1966, the appeal board upheld the local board's classification. The classification was appealed to the national selective service appeal board which affirmed the local board's action on October 13, 1966.

In August 1966, after the appeal board had acted, but prior to the decision of the national selective service appeal board, appellant wrote to his local board:

"I would like to request a conscientious objector form due to the fact that I will not be getting my student deferment. I felt it would be no need to express my beliefs regarding this matter of fighting and war if I had my student deferment. That is the reason I had never ...


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