The opinion of the court was delivered by: ZAVATT
ZAVATT, Senior District Judge.
Defendant moves to dismiss the indictment against him upon the grounds that: (1) the refusal of his local board to permit him (a conscientious objector classified I-O, as such) to perform his offered civilian alternative service was unlawful and based upon legally unauthorized criteria; (2) the refusal of the local board to classify him II-A was without a basis in fact.
The defendant was indicted on August 29, 1972, for failing to report for the commencement of civilian alternative service, as ordered by Local Board No. 4 (Board), following his classification as a conscientious objector. Defendant was classified on February 11, 1965 in class IV-D (divinity student); was re-classified I-A (available for military service) on August 11, 1966; was re-classified II-A (deferred because a student at St. Pius X Seminary) on October 13, 1966; was re-classified II-S (student deferment) on November 9, 1967; was reclassified I-O (a conscientious objector, pursuant to 50 U.S.C. App. § 456(j) and 32 C.F.R. § 1622.14) on July 8, 1968. On this last date, defendant was present at a meeting with his Board and indicated his desire to take his alternative service at an institution or a hospital. One of the Board members advised him to come back to the Board office "during the day to review list of institutions, and select the type of service." He failed to do so. On September 20, 1968, he was ordered to report for an Armed Services physical examination. On September 23, 1968, the defendant started working for the New York City Department of Social Services as a caseworker. He reported for an Armed Services physical examination on October 7, 1968 and was found qualified for service in the Armed Forces. On October 28, 1968, the Board mailed the defendant its Statement of Acceptability for military service (DD Form 62).
On October 30, 1968, the Board mailed to the defendant SSS Form 152, a special report form for Class I-O registrants, one of the purposes of which is to afford to a registrant, classified as a conscientious objector, the opportunity to designate three types of alternative civilian employment which he offers to perform in lieu of induction into the Armed Forces. 32 C.F.R. § 1660.20(a) requires a registrant in Class I-O to submit to his local board three types of civilian work which he is qualified to do and which he offers to perform in lieu of induction into the Armed Forces, within 10 days after a Statement of Acceptability (DD Form 62) has been mailed to him by his local board. This form contained the following information:
"By submitting a choice of employment you have an opportunity to select the work which you will be more interested in and perhaps best qualified to do.
In the event you have applied to one of the approved employers for work and have a definite answer to your application you should show this in Series II on the form. The local board cannot secure special skilled positions for you. However, it will be the policy of the Selective Service System whenever possible to order you to civilian work which will most fully utilize your experience, education and training."
The defendant did not comply with 32 C.F.R. § 1660.20(a). Instead of submitting to the Board three types of civilian work, he submitted only one type, "Social Work," and advised the Board in Form SSS 152 that he had applied to the "Dept. of Social Services -- City of New York, Division of Personnel, 220 Church St. N.Y. N.Y." for "casework" employment and that his application has been accepted. He enclosed a letter to the Board stating:
"In regard to the selection of suitable alternative service, I feel very strongly that my present position with the NYC Dept. of Social Services allows me to contribute much to the national interest and welfare. There is a great deal that we can do to lessen the crisis in the city. I would be willing to volunteer for alternative service in this specific capacity if you will approve the job before hand."
Form SSS 152 and the above accompanying letter were received by the Board on November 14, 1968.
The Board mailed to the defendant its letter, dated January 13, 1969:
"Since you have not offered to perform appropriate civilian work within the meaning of selective service regulations for the purpose of fulfilling your civilian work obligation, this local board is submitting to you three types of civilian work which it deems appropriate for you to perform and which meet criteria set forth in selective service regulations.
Type of Work Agency
Welfare Albany Home for Children, New
Scotland Ave. Albany, New York 12208
Hospital Blythedale Children's Hospital,
Valhalla, New York 10595
Institutional Syracuse State School,
800 South Wilber Ave. Syracuse, New York 13201
You are to notify this local board, by letter, within 10 days that you offer, or do not offer, to perform one of the types of work offered."
There is nothing in the Selective Service file to indicate what the Board meant when it stated that the defendant had not "offered to perform appropriate civilian work within the meaning of selective service regulations . . ." Did it mean that the defendant had failed to state three types of alternative civilian work as required by 32 C.F.R. § 1660.20(a) or did it mean that his offer to perform civilian work in the community in which he resided was contrary to C.F.R. § 1660.21(a), which then provided:
"No registrant shall be ordered by the local board to perform civilian work in lieu of induction in the community in which he resides unless in a particular case the local board deems the performance by the registrant of such work in the registrant's home community to be desirable in the national interest."
The Board's designation of three alternative civilian jobs at Valhalla, Albany and Syracuse seems to indicate that the Board was designating jobs outside of the community in which the defendant resided without considering the "unless" provision of 32 C.F.R. § 1660.21(a) but, rather, in compliance with Local Board Memoranda Nos. 64 and 98 issued by the Director of Selective Service.
These memoranda ...