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October 11, 1973

Juan Daniel GONZALEZ, Jr.

Costantino, District Judge.

The opinion of the court was delivered by: COSTANTINO


COSTANTINO, District Judge.

 This is a criminal prosecution charging Juan Daniel Gonzalez with failure to report for induction into the armed forces in violation of 50 U.S.C. App. § 462(a) (1971) and 32 C.F.R. § 1632.14. Defendant waived a trial by jury, and the case was tried to the court on May 9, 1973. Decision was reserved.

 There is no dispute as to the facts in this case. Defendant registered with Selective Service Local Board Number 45 in Brooklyn, N.Y. in October 1965 while he was a full-time student at Columbia University. He received a student deferment until he was due to graduate in 1968. In July 1968 defendant informed the board that as his mother and sister were financially dependent upon him, he desired a hardship deferment. He further informed the board that he was employed as an Educational Trainer with the Neighborhood Youth Corps. In response to defendant's hardship deferment claim, the Local Board sent him a Dependency Questionnaire (SSS Form 118). Although defendant failed to complete the Dependency Questionnaire, he nonetheless met with the Local Board at its urging on October 16, 1968. At the time of the meeting he no longer claimed the hardship deferment, but rather requested an occupational deferment based on his employment with the Harlem Educational Program. The Local Board denied his claim for an occupational deferment in November of 1968 and gave him a 1-A classification. The board further advised defendant of his right to meet with the Local Board at a personal appearance, pursuant to 32 C.F.R. § 1624.1(a) (1973), at which time he could again pursue his claim. In addition, defendant was advised of his right to appeal the determination of the Local Board to the State Appeal Board. In accordance with defendant's letter of December 5, 1968, his classification was appealed to the State Appeal Board.

 Prior to the appeal, however, the Local Board desired a determination as to whether defendant was fit for military service. He was scheduled for a preinduction examination on March 18-19, 1969. Defendant's Selective Service file indicates that before his examination the Selective Service was aware that the defendant was subject to pending criminal charges. It appears that on February 2, 1968 the defendant committed the offense of criminal trespass, second degree, N.Y. Penal Law § 140.10 (McKinney's Consol.Laws, c. 40, 1967). Charges were brought against him at that time. On July 16, 1969 defendant received a conditional discharge. Therefore, at the time of the preinduction examination, March 18, 1969, a criminal charge was pending against him. DD Form 47, dated March 10, 1969, indicates that the Selective Service nonetheless found that a "moral" waiver was not necessary and that defendant would be acceptable for induction into the armed forces if he passed the preinduction examination. (DD Form 47, Items 13a, 13b, 21a, 22a). At the examination a government psychiatrist interviewed the defendant and his report recited that "as a psychiatrist who finds no psychopathology I have to consider him [defendant] acceptable." The psychiatrist's report also stated that defendant told him that he had had a charge of criminal trespass filed against him which had been dropped. A form in the file entitled "PROCESSING SHEET AFEES" (Armed Forces Examining and Entrance Station) dated March 18, 1969 and bearing defendant's register or tag number (144) is stamped "administrative reject." The sheet also contains the following sentence on the bottom of the page:

Reg. is presently awaiting trial 29 Apr 69 for Crim. Trespassing & Dis Con. Verified per telecon attorney David LaBelle NYC 19 March 69.

 However, the final disposition of the preinduction examination was that defendant was not an administrative reject because of the pending charge, nor was a moral waiver required. He was found fit for military service and a Statement of Acceptability (DD Form 62) was sent to defendant informing him on March 27, 1969.

 In accordance with his letter of appeal of December 5, 1968, the Local Board scheduled defendant to meet with it on April 16, 1969. Defendant failed to appear. In addition, defendant's employer failed to provide any of the employment information requested by the board. On April 18, 1969 defendant was advised by the Local Board that it had reviewed his case and had retained him in the 1-A classification. Defendant was further advised that his file was being forwarded to the State Appeal Board. In January, 1970 the State Appeal Board notified the defendant that it had unanimously retained him in the 1-A classification. In November, 1970, defendant's draft lottery number of 171 was reached and he was scheduled to report for induction on November 19, 1970. Defendant failed to report for induction and was indicted for violation of 50 U.S.C.App. § 462(a) (1971); 32 C.F.R. § 1634.14.

 Defendant admits all the above facts but argues (1) that the induction order was invalid in that at the time of his preinduction examination the charge of criminal trespass in the second degree was pending against him and (2) he received inadequate notice of his induction order. In support of his first defense he cites AR 601-270 paragraph 3-9(c):

Men who have criminal charges filed and pending against them alleging a violation of State, Federal, or territorial statute are unacceptable. . . . The statement "suggest reevaluation of moral acceptability upon disposition of criminal charges" will be entered in the remarks section, DD Form 62 (statement of acceptability) for registrants found disqualified for induction on the basis of this paragraph.

 It is defendant's position that a reconsideration was necessary after the charges had been disposed of or that a "moral waiver" was required to induct him and since none was processed by the AFEES, the induction order was illegal and he was not required to obey it. Since the army did not follow its own procedures, defendant argues, the induction order was invalid and he cannot be punished for refusing induction.

 It must initially be pointed out that conviction of a single minor misdemeanor such as criminal trespass does not require the army to obtain a moral waiver. AR 601-270 paragraph 3-9(b), AR 601-270, Appendix W-2. Had defendant been convicted of the trespass charge on March 18, no waiver would have been necessary. However, the charge was pending as of that date and therefore paragraph 3-9(c) was operative.

 There are three reasons why this court concludes that defendant's first defense fails. Even if it is argued that a reconsideration of defendant's status was necessary after the pending charges were disposed of, or that a moral waiver was necessary, the defendant by his own statement is estopped from utilizing these procedural omissions to escape prosecution. Defendant told the examining psychiatrist on March 19, 1969 at the preinduction examination that the charges had been "dropped." This statement was entered on the examination records. Defendant now seeks to avoid the consequences of his refusal to report for induction when the induction order was issued in part because of his own misstatement. He should not be allowed to do this.

 Secondly, an analysis of the waiver sections of the regulations indicates that they are for the benefit of the armed forces, not inductees. In United States v. Brooks, 415 F.2d 502, 510 (6th Cir. 1969), the Sixth Circuit quoted with approval the district ...

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