The opinion of the court was delivered by: EDELSTEIN
This is a criminal prosecution for refusal to submit to induction into the armed forces in violation of Title 50 Appendix, United States Code, Section 462(a) and Title 32, Code of Federal Regulations, Section 1632.14. Defendant having waived a trial by a jury his case was tried to this court on May 8, 1972. Defendant's refusal to submit to induction is not disputed. (Tr. pp. 5-6).
There is substantial agreement as to the facts. Cotton is a registrant of Selective Service Local Board No. 19 (hereinafter "Board"), having duly registered on March 2, 1963. From December 18, 1963, until August 13, 1968, inclusive, Cotton held a II-S classification (full-time student). On July 11, 1968, after a pre-induction physical examination, he was found medically acceptable for induction into the armed forces. A statement of acceptability (DD Form 62) was forwarded to him on July 19, 1968. Upon graduation from school Cotton was reclassified I-A (available for military service). Subsequently, on September 17, 1968, he was reclassified II-A. This reflected an occupational deferment for his employment as a teacher with the New York City Public School System. This classification was later withdrawn when Cotton's Board was notified of the cessation of his employment. Cotton was reinstated to I-A classification on August 19, 1970.
On November 17, 1970, Cotton was issued an initial order to report for induction (SSS Form 252). On November 25, 1970, the Board received a letter from the defendant claiming status as a conscientious objector and seeking postponement of his scheduled December 1, 1970, induction. On November 25, 1970, the Board postponed defendant's induction and forwarded to him the forms he requested. (SSS Forms 150 for Conscientious Objector, and 151 for voluntary service.)
Cotton's completed forms and five (5) accompanying letters attesting to his sincerity were received at the Board headquarters on December 9, 1970. On this date, after consideration and review of defendant's SSS Form 150 and complete selective service file, the Board declined to reopen the I-A classification.
Notice of this decision was mailed to Cotton the next day.
Thereupon the Board reissued an order to report for induction. The induction date was now set for December 28, 1970.
On December 11, 1970, Cotton wrote to his Board requesting a reconsideration of his classification and a personal appearance. His request was granted. Pending a discretionary interview to be held January 19, 1971, the December 28, 1970, induction date was postponed.
Cotton appeared for his personal interview as scheduled. The Board again refused to reopen his I-A classification. The reasons for this denial were recorded on New York Form 7 entitled "Summary of Appearance Before Local Board." (Defendant Exhibit H) The record was effected by checking Box No. 1 on Form 7, which reads:
"It is the local board's opinion that the registrant is not a genuine conscientious objector."
To explain this action the Board noted:
"Registrant's feelings do not justify a change in classification."
On January 21, 1971, Cotton was notified of the Board's action.
Subsequently, on January 25, 1971, another induction order was mailed to Cotton. The induction date was now February 11, 1971. Cotton reported as ordered but was declared a holdover pending a redetermination of his medical acceptability for service. This procedure was repeated on two other occasions. On April 26, 1971, Cotton was found fully acceptable for induction. Notification of this final determination was mailed to him on May 3, 1971. Cotton's induction date was now set for May 13, 1971. Cotton reported as ordered but refused to submit to induction. This prosecution ensued.
The government contends that the United States Supreme Court decision in Ehlert v. United States, 402 U.S. 99, 91 S. Ct. 1319, 28 L. Ed. 2d 625 (1971), decided April 21, 1971, is dispositive of this case. The decision in Ehlert simply involves settling in which forum
must have an opportunity for a ruling on the merits of their conscientious objection claims. In light of the United States Army's assurance that such claims would be fully considered by it pursuant to its own regulations, 402 U.S. at 99 at 106-107, 91 S. Ct. 1319, 28 L. Ed. 2d 625, see Army Regulation 635-20 and Department of Defense Directive (DOD) 1300.6, Section IV B 2, the Court opted for in-service processing as the proper remedy. Wherefore the government advocates the conclusion that if Cotton would have submitted to induction after the decision in Ehlert, he would not have been denied an opportunity for a complete review and determination.
The defendant contends that Ehlert does not apply to him inasmuch as his conscientious objection claim met the standards required for a reopening of his classification as set forth in United States v. Gearey I, 368 F.2d 144 (2d Cir. 1966) cert. denied 389 U.S. 959, 88 S. Ct. 335, 19 L. Ed. 2d 368 (1967); United States v. Gearey II, 379 F.2d 915 (2d Cir. 1967) and Paszel v. Laird, 426 F.2d 1169 (2d Cir. 1970). Further, he urges that his induction order is rendered invalid because his Board's refusal to reopen his classification based upon the finding that he was not a genuine conscientious objector is without basis in fact. Title 50 Appendix, United States Code, Section 460(b)(3); Estep v. United States, 327 U.S. 114, 122-123, 66 S. Ct. 423, 90 ...