Regulation § 1622.1(c), Title 32 C.F.R. (1949 ed.).
The question of jurisdiction of the Local Board is reached only if there is no basis in fact for the classification it gave the defendant, Estep v. United States, 327 U.S. 114, 122, 66 S. Ct. 423, 90 L. Ed. 567 (1946); the classification can be overturned only if it has no basis in fact, Witmer v. United States, 348 U.S. 375, 381, 75 S. Ct. 392, 99 L. Ed. 428 (1955). Even if the defendant had been classified as a full-time pioneer minister, that classification by itself would not have entitled him to ministerial exemption. Cox v. United States, supra.
This court does not sit as a super draft board. Witmer v. United States, supra, 348 U.S. at p. 380, 75 S. Ct. at p. 395. Upon the record contained in the file there was a factual basis for the Local Board to classify and continue defendant I-O and refuse to classify him IV-D.
It is also necessary that the court determine whether the defendant has been afforded due process of law. There must be a 'fair and just' compliance with the provisions of the Act and the applicable regulations. 50 U.S.C.A.Appendix, § 451(c); United States v. Zieber, 161 F.2d 90 (3d Cir., 1947); United States v. Stiles, 169 F.2d 455 (3d Cir., 1948).
In our opinion, up to April 3, 1961, the registrant was not entitled to have his classification reopened and considered anew since he had not complied with Regulation § 1625.2, supra.
On April 3, 1961, a meeting was held, attended by the defendant, the Local Board, and a representative of the State Director of Selective Service, in an effort to determine the type of civilian work which the defendant would agree to perform. No agreement was reached at this meeting. It can be gathered from the file that at this meeting the Board agreed to reopen and consider anew defendant's classification within 30 to 60 days (Ex. 80) provided that he would submit further information within a week (Exs. 70, 85(b)). Defendant did not submit any further information in writing within the week nor at any other time prior to his indictment.
Regulation § 1625.2, supra, provides:
'The local board may reopen and consider anew the classification of a registrant (a) upon the written request of the registrant, * * * if such request is accompanied by written information presenting facts not considered when the registrant was classified, which, if true, would justify a change in the registrant's classification; or (b) upon its own motion if such action is based upon facts not considered when the registrant was classified which, if true, would justify a change in the registrant's classification * * *.'
Regulation No. 1625.4, Title 32 C.F.R. (1949 ed.) provides:
'When a registrant * * * files with the local board a written request to reopen and consider anew the registrant's classification and the local board is of the opinion that the information accompanying such request fails to present any facts in addition to those considered when the registrant was classified or, even if new facts are presented, the local board is of the opinion that such facts, if true, would not justify a change in such registrant's classification, it shall not open the registrant's classification. * * *'
On July 10, 1961, SSS Form No. 153 was issued notifying defendant that he was assigned to hospital work at Norristown State Hospital and ordered him to report to Local Board No. 67 on July 20, 1961, where he would be given instructions to proceed to the place of employment. The defendant failed to report to the Local Board or to the Norristown State Hospital. Thereafter, defendant's file was referred to the State Director and reviewed at National Headquarters. Those authorities 'determined that no administrative action regarding his classification is warranted.' (Ex. 87). Defendant was so notified of this decision (Ex. 88). This prosecution followed.
After indictment, in a letter dated February 20, 1962, defendant enclosed four affidavits, three of them dated in October, 1960 (the fourth being undated), purporting to be evidence that he was a minister and entitled to a IV-D classification.
It seems certain that despite Regulation § 1625.2, supra, and despite the Board's instructions on April 3, 1961 to submit further information within a week as a condition for a hearing to reopen and reconsider, the defendant deliberately withheld his four affidavits (assuming that he had them in his possession) and insisted on a hearing regardless of the regulation and the Board's instructions.
This defendant is not entitled to special privileges not granted to other registrants. The Board had a right to require defendant to comply with a valid regulation designed to eliminate useless and time-taking hearings. Regulation 1625.2, supra, is a reasonable administrative provision and is valid. United States v. Monroe, 150 F.Supp. 785, 788 (S.D.Cal.1957).
This is not a case of prosecuting an ignorant registrant for failing to comply with technical procedural requirements. The defendant had been told what to do. After the Board notified defendant that he had not submitted further information within one week and that he was being processed for civilian work (Ex. 70), he did not attempt to excuse the omission, he did not submit the four affidavits, he did not even inform the Board that he had them, but insisted upon a hearing without compliance (Exs. 69, 71, 80). It seems clear that defendant was trying again to delay his induction.
Defendant has not been denied due process. The order to report for civilian work was valid. He knowingly failed to obey the order. We find the defendant guilty as charged.