Biggs, Aldisert and Stahl,*fn1 Circuit Judges.
Appellant was convicted of failing to report for his selective service physical examination and for refusing induction into the armed services.*fn2 He received concurrent three year sentences for each offense. He argues that his convictions were invalid because he was denied due process in the consideration of his claim for exemption by the Selective Service System, and contends that his order for accelerated induction was without statutory authority.
Zmuda, a selective service registrant with an Allegheny County, Pennsylvania, local board, had, on July 27, 1967, claimed conscientious objector status. The claim was denied by the local board and in September, 1967 he received a I-A classification. With the Notice of Classification and under separate cover, the local board advised him of his right to request a personal appearance before the board and to appeal the board's decision. Zmuda did not respond.
Two months later the local board, advised that appellant had enrolled as a full-time college student, reclassified him II-S as a registrant deferred because of academic study. Notice of this reclassification was given Zmuda together with written advice of personal appearance and appeal rights. In December, 1967 the board was notified that appellant had withdrawn from school and he was returned to the I-A classification. Zmuda was informed of the board's action and was again apprised of his entitlement to a personal appearance and appeal.
Approximately four months after this return to I-A status, Zmuda returned his Notice of Classification to the board with an accompanying letter. In the letter the appellant protested that, "I see no reason why a C.O. was not given to me," and concluded: "Now you come and get me." On May 27, 1968, Zmuda was ordered to report for a physical examination on June 19. When he failed to report for the exam, he was declared delinquent under the provisions of 32 C.F.R. 1642.4 for failure to perform a duty "required of him under the Selective Service law," 32 C.F.R. 1628.16. He was directed to report to the local board "in person or by mail" and was cautioned that willful failure to comply would constitute a violation of the Universal Military Training and Service Act. He failed to respond and was ordered for induction on August 22, 1968. He acknowledged receipt of the order with a handwritten note which read: "As I have stated in the past, I will not cooperate with you in any way. I see no reason why a C.O. was not given to me." Zmuda failed to report for induction on the day designated. He was convicted for failure to report both for the physical examination and for induction and this appeal followed.
Based on the Supreme Court's recent decision in Gutknecht v. United States, 396 U.S. 295, 90 S. Ct. 506, 24 L. Ed. 2d 532 (1970), we have concluded that appellant's conviction for failure to report for induction cannot stand. In Gutknecht, the Court held that the Selective Service System is without statutory authority to order the accelerated induction of a registrant on the basis of his "delinquency" status.
Our review of the record in this case convinces us that appellant's order for induction came when it did solely because of his failure to report for his armed forces physical examination. First, the directive from the state director to the local board, dated July 10, 1968, clearly indicates that appellant's accelerated induction resulted solely from his being declared a delinquent. That directive states: "On June 19, 1968, the registrant [Zmuda] failed to report for an armed forces physical examination, therefore he should be declared to be delinquent and processed for induction according to Local Board Advice E-1-3."
Paragraph 3 of Local Board Advice E-1 ("Delinquents") provides seriatim for: (1) declaration of delinquency; (2) notification to the registrant; (3) registration of delinquency; and (4) call for induction. Moreover, by brief and oral argument to this court, the government virtually concedes that the induction was part of "the implementation of the delinquency regulations." Consequently, appellant's conviction for failure to comply with the invalid induction order must be reversed.
As noted previously, however, appellant was also convicted on a separate count of failing to report for his physical examination. In defense, appellant contends that the denial of his conscientious objector claim was punitively motivated and erroneous -- having no basis in fact -- and that the procedures that resulted in his I-A classification violated due process of law.
First and foremost, it must be emphasized that the alleged invalidity of appellant's classification is not available as a defense to a prosecution for failing to report for a physical examination. The validity of a I-A classification has no relevance to the registrant's obligation to undergo an examination to determine his physical eligibility to serve in the armed forces. McKart v. United States, 395 U.S. 185, 89 S. Ct. 1657, 23 L. Ed. 2d 194 (1969). Should the result of the examination reveal that the registrant is physically ineligible to serve, then his I-A classification would obviously be changed.
Even if Zmuda's classification had any bearing on his duty to submit to physical examination, we confess extreme difficulty in grasping the contention that a "punitive" classification or reclassification was involved here.*fn3 There is no evidentiary support for the assertion that the local board's initial rejecton of the appellant's conscientious objector claim was prompted by punitive motivations. Clearly, there was no question of any delinquency on Zmuda's part at that time. Furthermore, the return to I-A status following Zmuda's brief II-S student deferment was nothing more than an administrative restoration of the original I-A classification.
Stripping the surplusage from the various arguments advanced on this point, the appellant's complaint is simply that the local board had no basis in fact for rejecting his conscientious objector claim. But in the posture of the record before us, we are precluded from inquiring as to whether there was a "basis in fact"*fn4 for the I-A classification, or, conversely, whether Zmuda met his burden of proof in establishing a conscientious objector exemption.*fn5 We are placed in this position because appellant failed to avail himself of the review ...