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January 25, 1974


The opinion of the court was delivered by: FOLEY



 The facts of this case, insofar as they are pertinent for this decision, begin when defendant registered with the selective service system in May 1966. He was at that time classified IV-D (divinity student) while attending Our Lady of Hope Seminary in Newburgh, New York. In August 1968, he informed his local board of a termination in his seminary study. The board changed his classification to I-A until October 1968 when, upon entrance into Richmond College of the City University of the City of New York, defendant received a student deferment (II-S). Initially, his expected year of graduation was June 1970, but due to a change in his major subject of study, he had to extend his graduation date until June 1972 to accumulate the necessary credit for this new program of study. The local board was informed of this development and on July 22, 1970, ended his II-S deferment and reclassified him I-A. On August 24, 1970, an order to report for induction was mailed to defendant but ignored according to the allegations in the instant indictment.

 This case, by defendant's motion to dismiss the indictment herein, again presents an issue which has produced judicial disagreement as it concerns the meaning of the phrase "during his academic year" as set forth in the regulation of the selective service system I-S classification, 32 C.F.R. § 1622.15(b) (repealed 1973). In this case, the issue turns on whether August 24, 1970 [the date of defendant's induction order; see Marsano v. Laird, 412 F.2d 65, 68 (2d Cir. 1969); McLain v. Selective Service Local Bd. No. 47, 439 F.2d 737, 742 (8th Cir. 1971)] was within or during his (defendant's) academic year. If it was then defendant was entitled to have his induction order "cancelled" at that time [later regulations mandated "postponement", see United States v. Pickett, 460 F.2d 1255, 1256 n. 6 (8th Cir. 1972)]. The induction order in such a case would have been legally premature and thus would not have supported the instant indictment. United States v. Rundle, 413 F.2d 329, 332 (8th Cir. 1969). On the other hand, if the induction order was issued outside "his academic year" then defendant was entitled to no further delay in his induction and the instant indictment must stand. United States v. Pickett, supra.

 There are two leading cases which present the conflicting judicial interpretations regarding the applicability of the definition of "during his academic year" in Section 1622.15(b) when determining a registrant's right to an I-S classification. One school of thought, represented by District Judge Lloyd F. MacMahon, argues for an objective definition of "academic year", meaning for all student registrants who would be eligible, "the 12 month period following the beginning of his course of study." Walsh v. Local Board No. 10, 305 F. Supp. 1274 (S.D. N.Y. 1969). Judge MacMahon reasoned that inasmuch as neither the statute nor the regulations contain the slightest suggestion that "academic year" is to be defined differently for an I-S (C) than for a II-S classification, then the express definition of the II-S classification in Section 1622.25(b) must be applicable for the time period calculation for I-S (C) of Section 1622.15(b). The wording of these sections, although similar, is not identical.

 The case of Peller v. Selective Serv. Local Bd. No. 65, 313 F. Supp. 100 (N.D. Ind. 1970) presents a substantially different reading of the phrase. District Judge Beamer there also argues persuasively, but for a subjective definition. By emphasizing the word "his" in the statutory phrase, Judge Beamer would relate "academic year" to the educational cycle of the particular registrant, i.e., the time the registrant is actually engaged in the educational process.

 Both of these opinions argue and reason well for their respective interpretations of an admittedly ambiguous regulation with an unfortunate omission of the precise meaning of this phrase. I have previously written on this issue, although under facts which did not present the question in as clear and abstract way as the instant case. See Marowitz v. Selective Serv. Local Bd. No. 12, Dk. No. 72-CV-467 (N.D. N.Y. April 13, 1973) (unreported). I, therefore, see little need in attempting to improve on the decisions of Judge MacMahon or Judge Beamer on the point, except to give a few reasons for my preference for Judge Beamer's analysis.

 I do sympathize with the desire to have a simple and concrete definition for the I-S classification as provided for in the II-S classification [§ 1622.25(b)], but the fact that none has been provided might indicate that the classification, given its purpose, is not amenable to having one. Moreover, it is unusual to construe a regulation by extracting a definition from another regulation without any indication or reference that this was the intent of Congress. As stated in Marowitz, my preference for defining "during his academic year" in the relative sense is fundamentally based upon my perception of the intent of Section 1622.15, and as I interpret it, the practical realities surrounding its operation. It seems pointless to me, in weighing every interest whether it is the public, government or registrant, to pull a student from school while he is actually engaged in expending his educational resources, i.e., studying, paying tuition, and being emotionally geared-up for the educational process. Nowak v. Collins, 437 F.2d 1303, 1307 (3rd Cir. 1971). The government's need for the registrant to enter the military is not so immediate that it cannot wait a short time (usually a matter of a few months -- except in the registrant's last academic year) for a student to complete a cycle or sub-cycle of the educational process. The basic notion here is similar to allowing 30 days in the induction order before reporting to duty; it gives a reasonable time to put personal affairs in order and prepare for the impending change in lifestyle. On the other hand, I can see no practical purpose in choosing 12 months in every I-S case. For example, if a registrant, as defendant here, has finished a cycle of his education in June, what benefit accrues either to him or the selective service system in allowing deferment during an educationally inactive summer?

 There is necessarily a need for flexibility and an examination of each registrant's case before being able to know when a cycle or sub-cycle terminates. As here, the academic year usually runs from September to June, but it might run from January to January (see e.g., United States v. Wood, 329 F. Supp. 68, 71 (D. N.H. 1971), or be based on trimesters instead of semesters. Thus it is not practical, in terms of the purposes of § 1622.15 for "academic year" to be one fixed amount of time, nor can I understand why, if academic year does mean 12 months, Congress simply didn't use the word "year" in § 1622.15(b) which would unambiguously denote 12 months. There are also the words "during" and "his" in the phrasing of § 1622.15 (not found in § 1622.25) which in my judgment must reasonably be given a descriptive function relating, I believe, to the particular registrant.

 Nevertheless, while Judge MacMahon's argument has merit and has been followed, see United States v. Rothfelder, 338 F. Supp. 1164, 1167 (W.D. Mich., S.D. 1972), appeal dismissed 474 F.2d 606 (6th Cir. 1973), cert. den. 413 U.S. 922, 37 L. Ed. 2d 1044, 93 S. Ct. 3066 (1973), my own perception that the classifications II-S and I-S serve different purposes, (United States ex rel. Vacca v. Commanding Officer, etc., 446 F.2d 1079, 1083 n.5 (2d Cir. 1971), prevents me from accepting that analysis of the language and purposes of the separate regulations for different classifications and purposes. I choose instead to follow Peller and my previous reasoning as it applies to the problem here in Marowitz, supra; see also, McLain v. Selective Service Local Bd. No. 47, supra, 439 F.2d at 741-742; Nestor v. Hershey, 138 U.S. App. D.C. 73, 425 F.2d 504, 513 (1969).

 Accordingly, I find that defendant's induction order of August 24, 1970, was not issued during "his academic year" and the defendant was not entitled therefore to an I-S (C) deferment. Consequently, the indictment must stand and the defendant's motion to dismiss it is hereby denied.

 It is so Ordered.

 Dated: January 24, ...

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