its province the data and reasons upon which they apparently relied when the members of Local Board No. 133 were selected. However, the Government has not here favored us with any substantiated reasons why it was not practicable to compose Local Board No. 133 of local residents and, as such, the Government has not met its burden of proof on this issue.
The defendant here cannot be found guilty of a violation of 50 U.S.C. App. §§ 454, 462, unless there was a valid induction order. A prerequisite to a proper induction order is procedural due process. Therefore, draft board compliance with the applicable Selective Service regulations is a necessary element of the Government's case and, consequently, the defendant, in his criminal defense, must be allowed to show the failure of the draft board to comply with such regulations. Since we have found 32 C.F.R. § 1604.52(c) to be a mandatory requirement and that the Government has failed to prove its compliance with such regulation, it necessarily follows that the induction order, being issued by an illegal board, was invalid. Accordingly, the defendant's motion for judgment of acquittal is hereby granted.
The practical effect of our decision would appear to place in jeopardy all proceedings of Local Board No. 133, as it was constituted in this case. However, in our view, this result is dictated by law and policy and serves notice on the appropriate authorities that they are obligated to either abide by their own regulations or to prove why compliance with such regulations was impracticable.
We further hold that, even if Local Board No. 133 were found to be properly constituted, the order to report for induction was nonetheless invalidated by reason of the Board's denial of due process to the defendant in its treatment of the defendant's conscientious objector claim. The crucial facts are these.
The Board was first put on notice of the defendant's desire to seek a conscientious objector deferment on July 24, 1967, when he returned to the Local Board his completed Classification Questionnaire (SSS Form 100) in which the defendant claimed a conscientious objector status and requested that he be sent a special form for Conscientious Objectors (SSS Form 150). The SSS Form 150, which is designed to furnish the Local Board with information necessary to evaluate a conscientious objector claim, was sent to the defendant at his known address and bore the date of its mailing (July 24, 1970) in its legend. This SSS Form 150 was never received by the defendant. As a result, an entry appears in the minutes of the Local Board which notes that this Form was not timely returned by August 4, 1967. The Board never made further inquiry to determine why the SSS Form 150 was never returned and, although aware of the defendant's claim for conscientious objector status, never considered the merits of such claim when the defendant was classified I-A on October 12, 1967, because no Form 150 was included in the file to substantiate the claim. The defendant received notice of his I-A classification (SSS Form 110), together with a modified "Notice of Right to Personal Appearance and Appeal" (SSS Form 217). The defendant did not request a personal appearance or an appeal within the proscribed thirty (30) day period. Thereafter, on May 27, 1968, the defendant received an order to report for induction.
It is our finding that the failure of the Local Board to consider the conscientious objector claim at its meeting of October 12, 1967, was due to no fault of the defendant but rather was occasioned by the Local Board's dereliction of its duties. It is clear from the regulations
that the supply to a registrant of a requested Form 150 is a mandatory duty of the Board. Here, the Local Board's mailing of the requested Form 150 to the defendant's last reported address merely created a rebuttable presumption that the defendant actually received it. United States v. Bowen, 414 F.2d 1268 (3rd Cir. 1969). However, this presumption was overcome by our finding the defendant's statement that he never received such a Form from the Board to be credible.
Further, when the Form 150 was not timely returned, it was the duty of the Board, in light of their knowledge of the defendant's desire for a procedural right, to obtain clarification from the defendant as to why the Form had not been returned and as to whether he wished to pursue his claim. See United States v. Turner, 421 F.2d 1251 (3rd Cir. 1970); United States v. Derstine, 129 F. Supp. 117 (E.D. Pa. 1954). Rather than seek such clarification, however, the Local Board treated the conscientious objector claim as having been effectively waived.
In these circumstances, we find that the defendant was denied due process of law by the Board's failure to afford him the means to present adequately his claim for classification as a conscientious objector, and that such treatment invalidated the I-A classification and the order to report for induction flowing therefrom.
There remains for our consideration the question whether the deficiency in the Board's conduct was cured by their review of the defendant's claim on July 11, 1968. This review was occasioned by the defendant's submitting to the Board, after the order to report for induction was mailed, a completed SSS Form 150 which substantiated his conscientious objector claim. The submitted Form 150 was not the one provided by the Local Board but rather was obtained by the defendant from a draft counseling service.
Since the Form was submitted in the "post-induction order" stage, the Board considered itself governed by 32 C.F.R. § 1625.2 which requires that before the Local Board may reopen and consider anew a classification after an induction order has been issued there must be (1) a prima facie showing of entitlement to a new classification; (2) a specific finding of a "change in the registrant's status" since the induction order; and (3) a specific finding that this change resulted from circumstances over which the registrant had no control. On July 11, 1968, after finding no change in defendant's status and that the claim had no merit, the Board decided not to reopen the classification. The practical effect of the Board's decision was to foreclose to the defendant further administrative recourse for following such a refusal to reopen the defendant had no right to a personal appearance or to an appeal. See 32 C.F.R. §§ 1625.11, 1625.13.
If the defendant's claim for conscientious objector status had been considered by the Board when he was originally classified, the defendant would have had a right to a personal appearance and an appeal if the Board's decision were adverse to him. However, since the Board was derelict in its duties, the defendant's substantiated claim was considered for the first time in the "post-induction order" stage, a consequence of which the decision by the Board not to reopen carried with it no concomitant rights to a personal appearance or an appeal. In these circumstances, the Government can hardly be heard to argue that the Board's review of the defendant's claim in the "post-induction order" stage cured any deficiency in the Board's conduct. Rather, in our view, the circumstances of the subsequent review served to compound the prejudice already shown the defendant.
Thus, since the evidence is insufficient to sustain a conviction for failure to report for and submit to induction, the motion for judgment of acquittal is granted. See Boswell v. United States, 390 F.2d 181 (9th Cir. 1968); United States v. Stafford, 389 F.2d 215 (2nd Cir. 1968).
The above constitutes our conclusions of law.