by his local selective service board. On October 31, 1967, while so classified, movant returned his Registration Certificate and Notice of Classification to his local board, stating that he did not believe in war or the draft system and wished to have no part of the selective service system. On November 28, 1967, while still classified II-S, he was declared delinquent by his local board pursuant to the Selective Service Delinquency Regulations, 32 C.F.R. § 1642, for failure to have these documents in his possession. Consequently, he was reclassified I-A and placed in group one priority in the order of call pursuant to 32 C.F.R. §§ 1642.13 and 1631.7. On January 25, 1968 he was ordered to report for induction on February 6, 1968. The defendant failed to report for induction on that date.
Thereafter, on June 18, 1968, movant was indicted by the grand jury. The one-count indictment charged him with knowingly failing, neglecting and refusing to report for induction as directed by his local board and as required by the Military Selective Service Act of 1967 and rules, regulations and directives issued pursuant thereto. On September 19, 1968, movant appeared with counsel before this Court and pleaded guilty. On October 31, 1968 he was sentenced by this member of the Court to a three year term of imprisonment which he is presently serving in the Federal Prison Camp at Allenwood, Pennsylvania. No appeal was taken from the judgment of conviction and sentence.
Movant now files the instant Motion to Vacate Sentence in reliance upon the decision rendered by the Supreme Court of the United States on January 19, 1970 in the case of Gutknecht v. United States, 396 U.S. 295, 90 S. Ct. 506, 24 L. Ed. 2d 532 (1970). The principles enunciated in that case were reiterated by the Supreme Court on January 26, 1970 in the case of Breen v. Selective Service Local Board, 396 U.S. 460, 90 S. Ct. 661, 24 L. Ed. 2d 653 (1970).
In Gutknecht v. United States, supra, the United States Supreme Court reversed the conviction of a defendant found guilty of willfully and knowingly neglecting a duty required of him under the Selective Service Act by failing to submit to induction. The defendant had been given first priority in the order of call for induction after having been declared delinquent for failing to have his Registration Certificate and his current Classification Notice in his personal possession, as required by 32 C.F.R. § 1642. The Supreme Court held that the Delinquency Regulations accelerating the induction of a registrant for failure to possess his Registration Certificate and Notice of Classification were null and void, finding that existing legislation did not authorize the promulgation of these Selective Service Delinquency Regulations. Consequently, the order of the local board to the registrant to submit for induction out of the prescribed order, being based on regulations unauthorized by the Selective Service Act, was equally null and void. In reversing the conviction of the registrant, the Supreme Court necessarily implied that the registrant had no duty to submit to an induction which had been accelerated pursuant to void delinquency regulations and, therefore, had committed no criminal offense by refusing to submit to such an induction.
One week subsequent to the Gutknecht decision and in reliance upon the same, the Supreme Court rendered its decision in Breen v. Selective Service Local Board No. 16, supra, enjoining the induction into the armed services of a student previously classified II-S and then re-classified I-A (available for military service) pursuant to 32 C.F.R. § 1642 after he surrendered his Registration Certificate.
The sole question presented here is whether the Gutknecht decision, supra, should be accorded retrospective application to persons convicted for refusing to comply with orders to report for induction resulting from their re-classification or acceleration prior to January 19, 1970 pursuant to the delinquency regulations.
In neither Gutknecht, supra, nor Breen, supra, did the Supreme Court state whether those decisions were to be applied retroactively or prospectively. The Constitution neither prohibits nor requires that the decision be given retrospective effect. Linkletter v. Walker, 381 U.S. 618, 629, 85 S. Ct. 1731, 14 L. Ed. 2d 601 (1965). In Linkletter, supra, the Supreme Court stated at 629, 85 S. Ct. at 1738:
"Once the premise is accepted that we are neither required to apply, nor prohibited from applying, a decision retrospectively, we must then weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation."