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UNITED STATES v. MERCADO

November 22, 1972

UNITED STATES of America, Plaintiff,
v.
Ralph MERCADO, Defendant


Brieant, District Judge.


The opinion of the court was delivered by: BRIEANT

BRIEANT, District Judge.

By indictment filed August 31, 1971, defendant Ralph Mercado was charged, on or about the 5th day of April, 1971, and up to and including the date of filing of the indictment in this District, with knowing failure, neglect and refusal to perform a duty required of him under, and in execution of, the Military Selective Service Act of 1967, 50 U.S.C. App. § 451 et seq. Specifically, defendant was charged with knowing and unlawful failure, neglect and refusal to submit to induction in the Armed Forces of the United States.

 Defendant pleaded not guilty, and waived trial by jury. The cause was tried before me on September 15, 1972. Decision was reserved, and defendant continued on bail.

 The Regulation that defendant is charged with violating is found in 32 C.F.R. § 1632.14, which imposes the following requirements, and makes compliance a continuing duty:

 
"(a) When the local board mails to a registrant an Order to Report for Induction, SSS Form No. 252 . . . it shall be the duty of the registrant to report for induction at the time and place fixed in such order . . . regardless of the time when or the circumstances under which a registrant fails to report for induction when it is his duty to do so, it shall thereafter be his continuing duty to report for induction to his local board . . .
 
(b) Upon reporting for induction it shall be the duty of the registrant . . . (3) to appear at the place where his induction would be accomplished, (4) to obey the orders of the representatives of the armed forces while at the place where his induction will be accomplished, (5) to submit to induction . . ."

 Ralph Mercado was born on August 20, 1951. He registered with Local Board No. 27, at 1910 Arthur Avenue, Bronx, New York, on August 28, 1969. On March 18, 1970, he was classified 1-A, available for military service. The Local Board mailed him SSS Forms 110 and 217 on March 18, 1970, informing him of his notice of classification, his procedural rights to appeal and his right to a personal appearance before the Board. The defendant did not exercise any of these rights.

 On October 22, 1970, a pre-induction notice (Form 223) was mailed to defendant, requiring him to report at the Armed Forces Examining & Entrance Station at 39 Whitehall Street, New York, New York, on October 15, 1970. Defendant so reported and was found fully acceptable after having submitted to the requisite physical examination. Form 62 was then mailed to him on October 23, 1970, so informing him.

 Subsequently, defendant was mailed a notice ordering him to report for induction at Whitehall Street on April 5, 1971. At the induction center, defendant executed Form DD 398, a statement of personal history. The form includes questions which determine whether an inductee is a security risk for the Armed Forces, and seeks other data as well, including material relevant to moral qualifications. In response to question No. 19, as to whether there are incidents in defendant's life not mentioned in the application which may reflect upon his loyalty to the United States or upon his suitability to perform the duties required of him, Mercado wrote: "I am a Bible student with the Jehovah Witnesses and I am a conscientious objecter (sic)."

 In the event that a claim for exemption as a conscientious objector is made at the induction, prior to submitting to induction, then the Processing and Executive Officer at the station, a military officer, seeks the advice of Selective Service personnel as to whether or not to proceed with induction.

 The Selective Service liaison official on duty that day was Mr. D'Ambrosia. Captain Vopni, the Processing Officer, notified D'Ambrosia when it became apparent to him that Mercado was going to refuse induction. The mere reading of Mercado's Form 398 did not affect Vopni's actions since, in his words, "The fact that he puts a notation on the form that he is a C-O is not necessarily a claim for C-O status."

 Apparently, after Mercado had communicated his intentions, and after conferring with D'Ambrosia regarding Mercado's Form DD 398, Captain Vopni telephoned the Security Division of the U.S. Army Recruiting Command and notified them that Mercado was about to refuse induction on the grounds of conscientious objection. The Security Division personnel determined that the facts related in Mercado's statement were not sufficient for disqualification. Captain Vopni so indicated on the form 398 in the column headed "remarks". He was further instructed to proceed with the induction.

 After initial processing was completed, defendant refused induction. Captain Vopni counselled and advised defendant this his failure to step forward constituted a felony, and explained the possible penalty he faced if convicted. Defendant was again informed that he had been found fully acceptable for induction. Again, he was offered induction, but refused to submit to induction.

 After refusing induction, or immediately prior thereto, defendant executed the following document, ...


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