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UNITED STATES v. MANGONE

October 18, 1971

UNITED STATES of America,
v.
Richard MANGONE, Defendant


Edward Weinfeld, District Judge.


The opinion of the court was delivered by: WEINFELD

FINDINGS OF FACT AND OPINION

EDWARD WEINFELD, District Judge.

 In this nonjury trial, the defendant is charged with refusal to submit to induction into the Armed Forces of the United States. *fn1" The defendant appeared at the Induction Center pursuant to a direction from his Local Board, based upon his I-A classification, but refused to comply with the order to take the symbolic one step forward. There can be no issue but that his action was knowing, willful and deliberate. However, he challenges the validity of his I-A classification. He contends that the Local Board impermissibly denied his application for either a III-A (extreme hardship) or a I-O (conscientious objector) reclassification, and further that he was not given a proper physical inspection at the Induction Center in accordance with required regulations, thereby voiding the order to step forward.

 Upon the entire record, the Court finds that there was a basis in fact for the defendant's I-A classification -- indeed, an overwhelming basis to uphold it; further, that there was ample support for the Board's rejection of his hardship and conscientious objector claims, the former of which was first presented after he had been classified I-A, and the latter only when his hardship claim failed; and finally, that the charge of procedural irregularity in the induction process is groundless.

 We first consider the hardship claim. The defendant registered with his Local Board on June 18, 1964. He was granted a II-S classification on August 12, 1964, as a full-time student at Pace College, and was continued in that status beyond his graduation in September 1968. *fn2" On March 11, 1969, he was reclassified I-A. *fn3" When the defendant applied for his last student deferment in October 1967, the Military Selective Service Act of 1967 provided that any registrant receiving a student deferment would be ineligible to receive a dependency deferment except in cases of "extreme hardship to dependents." *fn4"

 The burden of establishing that he was entitled to such a reclassification was upon the defendant. *fn5" And as has been so aptly stated, the test is "not inconvenience, or even hardship, but extreme hardship." *fn6" And where the hardship claim is one of alleged deprivation of financial support to a dependent, the registrant must present proof that he not only makes a "substantial" financial contribution to the dependent, but also that "the dependent, if deprived thereof, would suffer extreme hardship." *fn7" So tested, there is not the slightest basis for challenging the Board's determination.

 Within a day of notification on March 27, 1969 that he had been reclassified I-A, the defendant requested a hardship deferment form, stating that his wife was expecting their first child. However, when he filed a "Dependency Questionnaire" on April 22, he stated he was a "partner in family business," his work that of "nursery manager" at a "farmers market," and his average earnings $120 per week. He listed his wife and child as dependents, but no explanation of hardship was made with respect to them; nor was any contention made that he contributed any money toward the support of his father and mother. In his own language, the claim was:

 
"In addition to my wife and child as dependents, I also must claim my dad, who is a partner with me in our family business * * *. I do not contribute money to him in that sense, but he depends on me to run our nursery business, which requires heavy work, and long hours. He is 64 years old and can no longer run the business as he once did, it is just too much for him. This is the business that brings in both our earnings. This business has been in our family for over 28 years."

 On this utterly unsubstantial claim -- a claim that he be deferred in order to take over his father's business and permit the father to retire -- the Board on May 13, 1969, upon a reopening, unanimously decided to continue his I-A classification and he was so notified. The ruling afforded the defendant an opportunity to be heard and to appeal the denial of his hardship claim.

 Thereafter the defendant requested, and was granted, a personal appearance before the Board on August 12, 1969. On that occasion he presented a letter from his father, which in substance reiterated the defendant's claim that he was needed in the family business, and if inducted into the Service, "a hardship would be placed on both of us concerning the family business in which he and I are sole partners." And, the father added, that since he would soon be 65 years of age and the defendant handled the entire retail and bookkeeping aspects of the business, "it would be impossible for me to hire anyone to replace him." The Board requested that defendant furnish financial information and records as to the father, but he refused. The Board voted unanimously to continue the defendant's I-A classification. Upon appeal, the Appeals Board, on January 8, 1970, unanimously classified him I-A. Not only was there an ample basis in fact *fn8" for continuance of defendant's I-A classification, *fn9" but to have made any other ruling would have been stultifying. There was no claim, let alone any showing, that defendant supported or made any contribution to the support of his father; there was no showing that his father was without financial income from sources other than the business, which he had successfully operated for twenty-eight years without the son's help, or that he was without capital sums adequately to support himself and his wife; there was no valid explanation why defendant's place in the family business, with which he was associated for only six months at the time he filed the hardship application and where his duties were ordinary, could not be carried on by a hired employee. *fn10" Finally, there was a refusal by the defendant to comply with the Board's reasonable request that information as to his father's finances be submitted. The defendant, notwithstanding the entry in the Board's records to this effect, denies he was requested to submit such financial information, but after hearing the witnesses' testimony, I find that indeed it was requested, and the defendant refused to submit the data.

 The contention here advanced by the defendant that the Board was under a duty to subpoena records, including the father's, to obtain data as to his father's financial status borders on the arrogant, particularly so since the father submitted a letter supporting the hardship claim. *fn11" Surely the Board was under no affirmative duty to dig up facts to support the defendant's claim for deferment. And it is equally certain that he could not shift his burden to substantiate his claim by a refusal to comply with a request to proffer facts. *fn12" A possible reason for the refusal is suggested by some of the information as to the father's financial circumstances, disclosed by trial testimony. Two older brothers of the defendant had worked in the business and one of them was still engaged there at or about the time of the defendant's graduation from college. *fn13" The evidence also disclosed that the father, apart from income derived from the business, was a pensioner of the United States Government, receiving $5800 per annum; *fn14" that he had purchased a residence for $44,000, the payment for which was derived from a condemnation award of $37,750, and the balance from a savings account; that he owned the property where the Farmers' Market was conducted, which, in 1969, was assessed at $100,000 -- in sum, the information, had it been submitted to the Board, would have exposed the claim of extreme hardship as sham.

 As to defendant's wife and child, there likewise was not the slightest support for any claim of "extreme hardship." Their situation, if not better than most, was no different than that of hundreds of thousands of wives and children of registrants who were inducted into Service. As an inductee, there would have been available pay and allowances for his family's support, with the prospect of increased pay in view of his college education. *fn15"

 Notwithstanding the failure of his hardship claim, the registrant, undaunted, still sought to obtain a deferment from his military duty as the Selective Service process moved forward, this time upon a claim that he was a conscientious objector, presented under the following circumstances. After his I-A classification was upheld on appeal in January 1970, defendant was found physically acceptable for service and ordered for induction on June 24. Two days before the scheduled induction date, the defendant for the first time requested a conscientious objector form and the Board mailed him SSS Form 150 and postponed his induction pending review of this claim. He filed SSS Form 150 on August 4, wherein he stated:

 
"I still am the sole operator of my family's business and this business supports my wife and daughter, as well as my mother and father. I cannot therefor [sic] just leave all this behind to ...

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