Hastie, Chief Judge, and McLaughlin and Seitz, Circuit Judges. McLaughlin, Circuit Judge (dissenting).
Each of the appellants is a selective service registrant who has been convicted under section 12 of the Military Selective Service Act of 1967, 50 U.S.C. App. § 462, on a charge of knowingly refusing to submit to a lawful order requiring his induction into the armed forces. On these appeals it is contended, among other claims of error, that the orders of induction are invalid in that they violate the mandate of section 6(h) (1) of the Act, 50 U.S.C. App. § 456(h) (1) which reads as follows:
"(h) (1) Except as otherwise provided in this paragraph, the President shall, under such rules and regulations as he may prescribe, provide for the deferment from training and service in the Armed Forces of persons satisfactorily pursuing a full-time course of instruction at a college, university, or similar institution of learning and who request such deferment. A deferment granted to any person under authority of the preceding sentence shall continue until such person completes the requirements for his baccalaureate degree, fails to pursue satisfactorily a full-time course of instruction, or attains the twenty-fourth anniversary of the date of his birth, whichever first occurs. * * *"
At all times relevant to this controversy both appellants were duly enrolled undergraduate college students in good academic standing. Soon after his registration, each of them was classified II-S, a classification that denotes deferment under section 6(h) (1). Some time thereafter, each appellant returned his Selective Service Registration Certificate to his local selective service board in token of his opposition to the Vietnam war and his refusal to obey the selective service laws.
A Selective Service Regulation, 32 C.F.R. § 1617.1, requires that every registrant must retain his Registration Certificate in his possession at all times. In Local Board Memorandum No. 85, issued October 24, 1967, the Director of Selective Service advised all local boards as follows:
"Whenever a local board receives an abandoned or mutilated Registration Certificate or current Notice of Classification which had been issued to one of its own registrants, the following action is recommended:
"(a) Declare the registrant to be delinquent for failure to have the card in his possession.
"(b) Reclassify the registrant into a class available for service as a delinquent."
Accordingly, each appellant's local board found the offending registrant "delinquent" and for that reason reclassified him I-A, available for immediate induction. An order for induction and the registrant's refusal to submit to induction after appearing at the designated place of induction followed.
The appellants argue that proper application of the doctrine and rationale of Oestereich v. Selective Service System Local Board No. 11, 1968, 393 U.S. 233, 89 S. Ct. 414, 21 L. Ed. 2d 402, requires the invalidation of their convictions. The registrant in the Oestereich case was entitled to a statutory ministerial exemption from military service under section 6(g) of the 1967 Act, 50 U.S.C. App. § 456(g), and was classified IV-D. He, like the appellants, returned his Registration Certificate to his local board, was found "delinquent" for that reason, and thereafter was reclassified and ordered to report for induction. The Court invalidated that order as violative of the statute which conferred the ministerial exemption.
The government now distinguishes the Oestereich case on the ground that the matter in controversy was an exemption while here we have a mere deferment. However, we think this is a distinction that makes no difference in the required result. The key to both situations is the fact that Congress by statute had relieved the registrant from the obligation of military service at the time he was ordered to be inducted. Whether that legislative dispensation excused him permanently or for a limited period is irrelevant. If Congress must be obeyed when it says: "Don't induct certain registrants at any time", it must as scrupulously be obeyed when it says: "Don't induct other registrants for the time being."
In this case we find the legislative mandate to be clear and unequivocal. Section 6(h) (1), quoted above, first authorizes the deferment of full-time undergraduate students. Then, in the plainest and most explicit language it provides that "[a] deferment granted to any person under authority of the preceding sentence shall continue until such person completes the requirements for his baccalaureate degree, fails to pursue satisfactorily a full-time course of instruction, or attains the twenty-fourth anniversary of the date of his birth, whichever first occurs." What the selective service authorities have done administratively is to add another circumstance under which a student deferment may be discontinued. Whether such an addition is desirable is not for the selective service authorities or for the courts to say. Each of these registrants had in fact been granted deferment as a college undergraduate. Congress has said that such student deferment, once granted, is to continue until one of three specified ...