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December 17, 1969

Ronald P. MOYER, Defendant

MacMahon, District Judge.

The opinion of the court was delivered by: MACMAHON

MacMAHON, District Judge.

This is a criminal prosecution charging defendant Ronald P. Moyer with failure to submit to induction into the United States armed forces, in violation of 50 U.S.C.App. § 462(a) and 32 C.F.R. § 1632.14. Defendant waived a trial by jury, and the case was tried to the court on October 24 and October 27, 1969.

 There is no dispute as to most of the facts. Defendant registered on November 28, 1962 with Selective Service Local Board No. 11, White Plains, New York. At the time of registration, he was a full-time undergraduate student and was granted a II-S student deferment. He maintained that deferred classification for four years until November 10, 1966 when he was reclassified I-A, available for military service, because he had fallen behind his class. Defendant wrote to the board on November 22, 1966 and explained that due to his unacceptable work in school, he had to transfer to a different college and was at the time attending Virginia Polytechnic Institute in Blacksburg, Virginia, still pursuing his bachelor's degree. His appeal from the I-A classification was denied on February 14, 1967, and he was reclassified I-A by unanimous vote of the appeal board.

 After some diffficulty due to defendant's attendance at school in Virginia, he reported for an armed forces physical examination on June 28, 1967 and was found physically fit for military duty. Shortly thereafter, he submitted a request for an undergraduate student deferment. The board took no action regarding this request, apparently because defendant had already had a II-S classification for four years.

 Defendant, on October 12, 1967, mailed to the board his draft card, notice of classification and a letter. The letter explained:

"It is with deep sorrow that I must return my draft card to my local board in protest over the war in Vietnam. I hope that you understand that this act of civil disobedience is because of my moral convictions which say to me that man should not be forced to kill another human being."

 The local board received these documents and apparently forwarded them to the State Director of Selective Service for advice. Approximately two months later, on December 6, 1967, the State Director advised the local board to declare defendant delinquent because he had mailed in his draft card and notice of classification, as proscribed by Selective Service Local Board Memorandum No. 85. The board, at its meeting on December 12, 1967, officially declared defendant a delinquent and mailed to him on December 19, 1967 a delinquency notice.

 The board, on January 30, 1968, mailed to defendant an order to report for induction scheduled for February 26, 1968. Below the title of the form was typed the word "'Delinquent'".

 Defendant reported for induction as ordered, but refused to step forward when his name was called by the induction officer. The induction officer then explained to defendant that his refusal to submit to induction was a crime punishable by a term of imprisonment of not more than five years, or a fine of not more than $10,000, or both. Despite this, defendant refused to step forward and wrote out a statement, witnessed by the induction officer, explaining that he had to refuse induction because of religious and moral reasons.

 Defendant admits all the above facts, but argues that the induction order violated his federal constitutional right to due process because: (1) the board failed to send to him a special form for conscientious objector (SS Form 150) and failed to consider his request for a reopening and reclassification after he mailed the board the letter explaining his moral objections to war; (2) the board resorted to punitive reclassification in declaring him a delinquent pursuant to Selective Service Local Board Memorandum No. 85; (3) the board sent him an outdated and superseded notice of delinquency which failed to advise him of his right to go to the nearest local board for advice; (4) the board failed to meet in order to consider whether to permit defendant to expunge his delinquency after he refused induction and (5) the board failed to maintain records which would enable defendant to ascertain whether he was called for induction in the proper order.

 Defendant's first argument, that the board failed to send him a Form 150, is based on the letter he sent the board on October 12, 1967 along with his draft card and notice of classification. Defendant claims that his letter notified the board that he was seeking deferment as a conscientious objector and therefore should have been sent a Form 150.

 A registrant need not label the classification he requests. Since registrants are denied counsel during the classification process, allegedly because of the informality of the Selective Service procedures, draft boards cannot hold registrants to a strict use of technical statutory language. The information presented, not the label used, controls. *fn1"

 The board's executive secretary admitted at trial that if a registrant came into the board and orally presented to her the same information contained in defendant's letter of October 12, 1967, she would have instructed the registrant to write out the information and would have given him a Form 150 to fill out and return to the board. Surely, the practice should be no different simply because a registrant is away at school and forced to present his facts by mail.

 The letter of October 12, 1967, therefore, sufficiently apprised the board of defendant's claim for conscientious objector classification and was, ...

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