The opinion of the court was delivered by: NEALON
A motion having been filed by defendant to find the facts specially, pursuant to Rule 23(c), Fed.R.Crim.P., I make the following
1. Calvin Ross Johnson, Jr., was born on August 23, 1944, and registered with Local Selective Service Board 85, Lancaster, Pennsylvania, on September 6, 1962, soon after his eighteenth birthday.
2. On April 16, 1964, defendant was mailed a Classification Questionnaire (SSS Form 100), which was completed and returned by the registrant.
3. On SSS Form 100, defendant stated that he was unmarried; that his occupation was that of a student at Howard University where he was majoring in Sociology and was a member of the ROTC program.
4. On SSS Form 100, defendant did not claim exemption as a conscientious objector.
5. On May 11, 1964, Local Board 85 classified defendant 1-A and mailed defendant a Notice of Classification (SSS Form 110).
6. No personal appearance or appeal from this classification was requested by defendant within the required time period.
7. On September 2, 1964, Local Board 85 mailed defendant a Current Information Questionnaire (SSS Form 127), which was returned September 4, 1964.
8. On SSS Form 127, defendant once again stated that he was unmarried and that he had completed one year at Howard University where he was majoring in Sociology and where he was a member of the ROTC program.
9. On October 9, 1964, Local Board 85 received notice from Howard University that defendant was a part-time student.
10. On January 18, 1965, Local Board 85 mailed defendant on Order to Report for an Armed Forces Physical Examination on February 2, 1965, at 6:15 A.M.
11. On February 2, 1965, defendant failed to report for his physical examination.
12. On February 2, 1965, Local Board 85 received a letter from defendant dated February 1, 1965. In this letter defendant stated that he was a Sophomore at Howard University, where he was a member of the ROTC program, that his 1-A classification should be changed, and that he was enclosing a prior semester's registration card and an ROTC card.
13. On February 2, 1965, by letter for the Local Board, Mrs. Thelma Burie, Clerk of the Local Board, explained to defendant the requirements of the possible classifications to which he might be entitled and advised defendant to take the Board's January 18, 1965, Order to Report for a Physical Examination to the proper Washington, D.C., Local Board, where arrangements would be made for transfer of the physical examination.
14. On February 15, 1965, Local Board 85 mailed to defendant a Delinquency Notice (SSS Form 304) for failing to report for his physical examination.
15. On February 15, 1965, Local Board 85 received official notice from the ROTC at Howard University that defendant was selected for enrollment in the Senior Division of the ROTC and had executed a deferment agreement.
16. On February 23, 1965, Local Board 85 received a Student Certificate from the Registrar of Howard University stating that defendant was satisfactorily pursuing a full-time course of instruction at that University.
18. On March 4, 1965, defendant completed a request to transfer his physical examination to the jurisdiction of Local Board 3, Washington, D.C.
19. On April 22, 1965, defendant submitted to an Armed Forces physical examination at the Armed Forces Examining Station, Baltimore, Maryland.
20. On April 26, 1965, defendant notified Local Board 85 by letter that he had passed his Armed Forces physical examination and inquired about his classification as a student (2-S).
21. On April 29, 1965, by letter for the Local Board, Carole J. Wagner, Assistant Clerk, informed defendant of the reasons why he was currently classified 1-A and advised him that the Board would mail him another classification card after the Board received and reviewed the results of defendant's Armed Forces physical examination.
22. On May 10, the Local Board was notified by the Armed Forces Examining Station, Baltimore, Maryland, that defendant was found fully acceptable for induction.
23. On May 10, 1965, defendant was mailed notification of the results by means of Form DD 62.
24. On May 17, 1965, Local Board 85 removed defendant from delinquency status imposed on February 15, 1965.
25. On May 17, 1965, Local Board 85 reclassified defendant from 1-A status to 1-D status and mailed to defendant Notice of this Classification (SSS Form 110). The classification 1-D covers those registrants who are members of reserve ...