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UNITED STATES v. DERSTINE

March 30, 1954

UNITED STATES of America
v.
Wilmer Kratz DERSTINE



The opinion of the court was delivered by: GRIM

After having waived a jury trial defendant was found guilty of refusing to submit to induction into the armed forces of the United States. He reported for induction as ordered, but upon completion of the processing at the induction station he refused to be inducted. He has filed a motion for judgment of acquittal averring, among other things, that he was not accorded the personal hearing before his local Selective Service Board to which he was entitled under the Selective Service Regulations.

The problem in the case was whether or not the defendant, a Mennonite, was entitled to a conscientious objector classification *fn1" which, if it had been granted, would have prevented his induction.

 After the case had gone through all the Selective Service channels from the Local Board to the office of the National Director of Selective Service *fn2" with decisions always against the defendant registrant, *fn3" the National Director made a written request to the Local Board that the classification be reopened and considered anew. See 32 C.F.R. 1625.3.

 Following the request of the National Director the Local Board on September 13, 1951, reopened the classification and considered it anew but again refused the registrant a conscientious objector classification and put him again in 1-A. On September 14, 1951, defendant wrote a letter to the Local Board, which, among other things, stated:

 'Today I received a new classification card 1-A from you as local Draft Board. * * * I do at this time want to present some new evidence and request either a hearing before the local board or appeal again to the Board of Appeals * * * Upon this new evidence which I am submitting above, I hereby appeal to the Board of Appeals for a 4-E classification.'

 This letter was treated by the Local Board solely as an appeal to the Appeal Board and the case was referred to the Appeal Board. The request for a hearing was overlooked or ignored. The Appeal Board rejected the second appeal and again unanimously continued defendant in 1-A. The National Director of Selective Service upon application of the defendant again intervened and requested that defendant's selective service file be sent to him for further review. The file was sent to the National Director who after further consideration wrote to the State Director stating that he did not contemplate any further action in the case and directed that the processing of the defendant should proceed.

 It is well established that the failure of a local draft board to accord a registrant a procedural right provided in the Selective Service Regulations invalidates the Board's action. United States ex rel. Berman v. Craig, 3 Cir., 1953, 207 F.2d 888. United States v. Stiles, 3 Cir., 1948, 169 F.2d 455.

 The Selective Service Regulations provide: (32 C.F.R. 1624.1)

 'Opportunity to appear in person: (a) Every registrant, after his classification is determined by the local board (except a classification which is itself determined upon an appearance before the local board under the provisions of this part), shall have an opportunity to appear in person before the member or members of the local board designated for the purpose if he files a written request therefor within 10 days after the local board has mailed a Notice of Classification (SSS Form No. 110) to him * * *'

 This regulation clearly gave defendant an opportunity, if he requested it in writing, to appear in person before his Local Board after he was given a 1-A classification on September 13, 1951. The fact that he had had a personal appearance before the Local Board on January 11, 1951, did not take away this right, since the regulations provide: (32 C.F.R. 1625.13)

 'Right of appeal following reopening of classification. Each such classification shall be followed by the same right of appearance as in the case of an original classification.'

 Defendant's request was not as clear as it might have been. He requested a 'hearing' rather than an 'opportunity to appear in person', but no one would seriously contend that a request for a hearing was not a request for an 'opportunity to appear in person'. A more serious defect in the request was that it did not definitely ask for a personal hearing, but instead it asked in the alternative either for a personal appearance or an appeal to the Appeal Board. Defendant said:

 'I do at this time want to present some new evidence and request either a hearing before the local board or appeal again to the Board of Appeals.'


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