Reargued September 28, 1970.
Biggs, Aldisert and Stahl, Circuit Judges. Biggs, Van Dusen and Aldisert, Circuit Judges.
Following the first argument of this appeal from a conviction of refusal to submit to induction, we decided, based on the de facto reopening theory of Miller v. United States, 388 F.2d 973 (9 Cir.1967), that appellant was entitled to administrative review of the local board's purported refusal to reopen his classification. In a petition for reargument, the government conceded the vitality of Miller but urged its inapplicability as a defense to this criminal prosecution because the registrant did not seek a reopening of his classification until almost sixty days after the crime was committed. We granted reargument before the panel*fn1 to consider the government's contention.
Initially classified II-S, based on his status as a college student, appellant was reclassified I-A following his withdrawal from school in the fall of 1967. Shortly thereafter he underwent physical examination and was found acceptable for military service. He was then ordered to report for induction on March 28, 1968. He appeared at the induction center but refused induction.
On May 25, 1968, appellant requested and later received an SSS Form 150 (Conscientious Objector) from his local board, which he filed with the board some four months later on September 20, 1968. In the interim, on June 26, 1968, a grand jury returned an indictment against him, charging a violation of the Military Selective Service Act of 1967, 50 App. U.S.C.A. § 462(a).
Confronted with his belated claim for exemption, the local board sought advice from the Pennsylvania State Selective Service Director, asking what, if any, consideration should be given the claim. The director wrote that the local board "may reopen and consider anew" the claim "without regard to the fact that he has been indicted and without the aura of criminality."*fn2
After receiving the requested instructions, the local board summoned appellant to appear for a personal interview on October 1, 1968. The minutes of the board's subsequent meeting establish that, in accordance with the directions from state headquarters, the board considered the merits of appellant's claim. The board determined (1) that there was "no change in status," (2) that his "claim does not have merit" and (3) that he "does not meet the criteria for C.O." Appellant was then informed that the board had determined "there was no change in your status over which you had no control, [and] therefore, did not reopen your classification."
Under the reasoning of Miller v. United States, supra, a court must look to the substance and not the form of the board's proceedings. Thus, board action which amounts to a de facto reopening of the classification under 32 C.F.R. § 1625.11 entitles the registrant to an appeal to the state board even though the local board purports to have refused a reopening.*fn3 In Miller the denial of the appeal was held to be a sufficient ground for reversing the conviction.
The government argues that there is a crucial distinction between the facts in Miller and those in the case before us -- a distinction so fundamental as to make the difference between a valid legal defense in Miller and a legal irrelevance here: (1) Miller's request for the SSS Form 150 was made one day after he received notice that he was to be inducted at a future date, and the proceedings to reopen his classification were initiated before the date on which the alleged crime of refusing induction was committed; (2) appellant's request was not made until the induction day had long passed; his request for Form SSS 150 was not submitted until some sixty days after the commission of the crime.
Attaching critical significance to the timeliness of the institution of the reopening proceedings, the government urges that any defect in a selective service proceeding which occurred subsequent to appellant's refusal to submit to induction is not relevant to the issue whether a crime was committed on the day of the scheduled induction. Hence any subsequent selective service procedural infirmity cannot be interposed as a valid defense to the crime charged.
Although the government's position has been endorsed by a formidable array of precedents in the First, Sixth, Seventh, Eighth and Ninth Circuits,*fn4 appellant would have us construe 32 C.F.R. § 1625.14 to mean that any reopening of a classification by a local board after an induction day has come and gone, ignored by the registrant, automatically and retroactively cancels the induction order, voids any violation of the order, and places the registrant in the same position as if an order to report and submit had not been issued. Thus, appellant contends that the de facto reopening of his classification which occurred in October, 1968 had the effect of nullifying his March, 1968 induction order and vitiating his violation thereof.
We now turn to 32 C.F.R. § 1625.14: Cancellation of Order to Report for Induction or for Civilian Work by ...