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07/16/71 Myles James Swift, v. Director of Selective

July 16, 1971

MYLES JAMES SWIFT, APPELLANT

v.

DIRECTOR OF SELECTIVE SERVICE ET AL. 1971.CDC.172 DATE DECIDED: JULY 16, 1971



Bazelon, Chief Judge, and Robinson and Wilkey, Circuit Judges.

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

APPELLATE PANEL:

PER CURIAM DECISION

Appellant Swift sought an injunction to prevent his induction into the Army, asserting that his induction order was invalid for two reasons. He urged first, that his draft status must be governed by the new Random Selection Sequence Regulations, *fn1 not by the order of call existing on the date of his original induction order; and, second, that his local board acted unlawfully in refusing to reopen his classification in response to his post-induction order claim of conscientious objection. The District Court resolved the first contention against appellant on the merits. We affirm that decision for the reasons given in Part II of this opinion.

The District Court further held that appellant's second contention was barred from pre-induction review by Section 10(b) (3) of the Military Selective Service Act of 1967 (50 U.S.C. (Supp. V, 1970) ยง 460(b) (3)). In our initial opinion in this case of March 16, 1971, we disagreed with that conclusion and held, Judge Wilkey dissenting, that under United States v. Gearey *fn2 appellant had stated a claim that the board had acted unlawfully which could be reached on pre-induction review. However, we noted in our March 16, 1971, opinion that if we had chosen to follow Ehlert v. United States *fn3 "appellant would have no feasible claim that his board acted lawlessly in refusing to reopen his classification."

Subsequently, before the mandate of this court had issued, the Supreme Court affirmed the Ninth Circuit's decision in Ehlert, *fn4 holding that under the applicable regulations a claim of conscientious objection which matures after issuance of an induction order may not be entertained by the Selective Service, but must be considered by the military after induction. Ehlert obviously removes the basis for appellant's contention that his board unlawfully refused to consider his post-induction order claim to conscientious objection. We therefore vacate our opinion of March 16, 1971, and thus also affirm the District Court's action in denying a preliminary injunction on this second ground. I. FACTS

Appellant was classified I-A *fn5 by his local board in Allentown, Pennsylvania, in March 1969. He took an appeal, *fn6 and was classified I-A-O *fn7 by an appeals board. On September 12, 1969 he received an order

In the meantime, by letter of December 19, 1969, the local board had ordered appellant to report for induction in Allentown on January 15, 1970. He did so, but no final decision as to his acceptability was reached because further physical tests were needed. On January 21, 1970, appellant was ordered by his local board to report to Walter Reed Army Hospital on February 11, for the tests. He reported as directed, and on February 17 he was informed that he had been found fully acceptable for induction. The next day he was ordered by a letter from his local board to report for induction in Allentown on March 2, 1970. *fn12 Later, appellant's request for a transfer of induction was granted, and he was to have reported for induction in the District of Columbia on April 7, 1970. Court proceedings leading to a stay of induction order from this court were started on April 1, 1970. *fn13 II. RANDOM SELECTION

Appellant argues that his induction order was terminated by the events of January 15, 1970, when he reported to the Armed Forces Entrance Examination Station and was not inducted because of an inability to complete his physical examination on that day. Thereafter, appellant maintains, he could only be inducted pursuant to a new induction order, issued in conformity with the order of call established by the new regulations effective January 1, 1970, calling for a lottery. *fn14 Since resolution of this question involves only a legal issue, and does not call for a review of a factual determination or the exercise of discretion by the local board, we think it plainly can be reached on preinduction review. *fn15

Appellant emphasizes that his original order to report for induction (SS Form 252) dated September 12, 1969, which was postponed several times, was still in effect on January 15, 1970, and that he fully complied with this order by reporting at the time and place designated and being physically examined. Appellant alleges, and the District Court took as true on his expressed willingness to testify and on the Government's representation that no dispute of fact existed, that on January 15 he was sent from the AFEES and told by AFEES personnel that the next orders he would get would be from his local board. He asserts that the reason for this was that his physical examination had only been partly completed, that further examination in regard to his problems of flat feet and a bad back could not be done at the local station, and the facilities of a hospital such as Walter Reed were required. He subsequently was sent to Walter Reed for further examination which resulted in his being determined medically acceptable, as he was informed by the notice sent February 17, 1970.

On this state of facts appellant argues that his order of induction of September 12, 1969, was thus terminated or exhausted, that a new order of induction from the local board was necessary to put him once again in line for military service, and that such order had to be issued under the new random selection regulations.

Appellant does not, and the Government asserts he cannot, point to any provision in the statutes, Selective Service regulations, or Army regulations that states specifically that the failure to induct a registrant into the Armed Forces on the day he reports pursuant to an order of induction, when the reason for the delay is an incomplete physical examination, has the legal effect of canceling or terminating his previously issued induction order. On the other hand, appellant asserts that the Government can point to no statute, regulation, or other authority which says that the induction order continues in full force and effect. *fn16

It is probable that many thousands of registrants have been treated in the same manner as appellant here, i. e., the registrant has reported for a physical examination, some problem has been encountered which is beyond the capacity of the particular examining station to determine with finality, and the registrant has been told to go back to his residence and that he will be advised later as to when and where his physical examination can be completed. The registrant has then been found medically acceptable or unacceptable, and the Selective Service process has functioned in a normal manner in taking or rejecting him.

It is obvious that the reason this question has seldom arisen in court before is that few registrants ever found themselves with the attractive alternative possibility that appellant here claims, i. e., if the induction order was exhausted by appellant reporting on the day specified and the Armed Services were unable to complete his physical exam until space could be secured for him to be examined at a more elaborate medical facility such as Walter Reed, then appellant could only be reordered to report for induction under ...


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