The opinion of the court was delivered by: EDELSTEIN
Defendant having waived a trial by a jury his case was tried to this court on June 14, 15 and 20, 1972.
Defendant was indicted for failure to report for induction into the armed forces of the United States in violation of Title 50 Appendix, United States Code, Section 462(a) and Title 32, Code of Federal Regulations, Section 1632.14. Specifically, the indictment accused him of failure to report for induction on May 19, 1970, as ordered in writing (SSS Form No. 252) by his Selective Service Board, Local Board No. 11. Defendant's sole defense is that he was not called for induction in the proper sequence -- the so-called "order-of-call" defense.
After a careful consideration of all the testimony, the exhibits in evidence, and the relevant statutory and decisional law, the court finds beyond a reasonable doubt the following:
(1) Defendant registered for Selective Service on November 19, 1968, at Local Board No. 11;
(2) Defendant was classified I-A (available for military service) on January 14, 1969;
(3) On January 15, 1969, Local Board No. 11 mailed to defendant a notice of his classification, (SSS Form No. 110) and right to a personal appearance and/or an appeal, (SSS Form No. 217);
(4) Local Board No. 11 was vandalized in July 1969. The result of the vandalism was the systematic destruction and disruption of most of the Board's records and files, including those of the defendant;
(5) Defendant's selective service file was reconstructed on October 7, 1969, and he was mailed a classification questionnaire (SSS Form No. 100);
(6) Local Board No. 11 received defendant's completed classification questionnaire on October 17, 1969;
(7) Defendant was given an armed forces pre-induction physical examination on November 6, 1969, and found fully acceptable for induction into the armed forces;
(8) Defendant was mailed a notice of his medical acceptability (DD Form 62) on December 2, 1969;
(9) On April 20, 1970, Local Board No. 11 mailed to defendant an order to report for induction into the armed forces, (SSS Form No. 252);
(10) Defendant's scheduled induction date was May 19, 1970;
(11) Local Board No. 11 was required to deliver nine (9) men for induction on May 19, 1970;
(12) Local Board No. 11 actually called eight (8) men for induction. The defendant was third (3rd) on the list for eligibility;
(13) On May 19, 1970, defendant failed to report for induction as ordered;
(14) Defendant initially challenged thirty-four (34) registrants who, he contends, should have been called ...