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United States v. Laird

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


decided: May 26, 1971.

UNITED STATES OF AMERICA EX REL. GEORGE H. HARTMAN ON BEHALF OF PVT. (E-1) BRUCE B. REYNOLDS, APPELLANT,
v.
MELVIN LAIRD, SECRETARY OF DEFENSE, STANLEY R. RESOR, SECRETARY OF THE ARMY AND CAPT. JAMES E. CONNER, USACE COMPANY

McLaughlin and Van Dusen, Circuit Judges, and Hannum, District Judge.

Author: Van Dusen

Opinion OF THE COURT

VAN DUSEN, Circuit Judge.

This is an appeal from a district court order denying a petition for a writ of habeas corpus filed on behalf of a registrant after he had been inducted into the Army.*fn1

Registrant was classified II-S by his local board from October 1963 until June 1968 while he was an undergraduate at college. Subsequent to his graduation, on June 12, 1968, registrant was reclassified I-A. Then registrant requested and was granted a personal appearance, at which he asked that his classification be changed to III-A (extreme hardship). This request was rejected, as was registrant's appeal to the State Appeal Board which affirmed the local board's decision on January 16, 1969. On January 27, 1969, registrant was sent an order to report for induction on February 6, 1969. During the appeal process, registrant had entered graduate school and, after receiving the induction notice, he asked the board to postpone his induction until after he completed one year of graduate school. Acceding to his request, the board notified registrant that his induction date was now postponed until June 11, 1969. Cf. 32 C.F.R. § 1632.2(d).

On June 6, 1969, registrant notified the board that he had signed a contract to teach fifth grade in Paterson, New Jersey. He requested the board to grant him an occupational deferment (II-A). The request was filed by the clerk of the local board, but apparently was never considered by the board.

On June 10, 1969, registrant wrote the local board stating that he had become a conscientious objector, requesting that he be furnished a special form for conscientious objectors, and asking that his order to report for induction be cancelled.*fn2 The letter was received by the board on June 11. On June 11, 1969, registrant reported to the induction center, handed to the center personnel his written answer to a facsimile special form (SSS 150) for conscientious objectors, and stated to them that he would not take the oath. The personnel at the induction center called the clerk of the local board, who advised them that registrant's claim would not be considered by the board. Subsequently on June 11, registrant took the oath and was inducted into the Army. On August 26, 1969, this petition for a writ of habeas corpus was filed pursuant to 28 U.S.C. § 2241 et seq., requesting that he be released from the United States Army.

Since the registrant's application for classification as a conscientious objector was made after he had received an induction order and stated in June (after the date of mailing the notice of the induction order) that "I have come to realize that I do conscientiously object to all forms of military activity," the applicable regulation*fn3 "barred presentation to the local board of" this conscientious objector claim. See Ehlert v. United States, 402 U.S. 99, at p. 108, 91 S. Ct. 1319, at p. 1325, 28 L. Ed. 2d 625 (1971).*fn4 The Supreme Court has pointed out in Ehlert that Army Regulation 635-20 permits a registrant "whose conscientious objection has crystallized between notice and induction" to present his claim after induction and "that there thus exists no possibility that late crystallizers will find themselves without a forum in which to present their claims". (page 1322).

Also, we find registrant's claims concerning an occupational deferment without merit, since this court has clearly held that the acceptance of a teaching contract does not represent a change of status resulting from circumstances over which a registrant had no control. Clark v. Volatile, 427 F.2d 7, 10-11 (3d Cir. 1970).

We have considered and rejected the other contentions of the registrant since we find them without merit.*fn5

In view of the record in this case, the judgment of the district court will be affirmed.


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