The opinion of the court was delivered by: MASTERSON
MASTERSON, District Judge.
The defendant, Mohammed Ateek Khan, was tried before the Court on a waiver of jury trial. The charge is set forth in a one count indictment under 50 U.S.C. App. §§ 454 and 462 -- failing to perform a duty required by the Selective Service Act in refusing to submit to induction. The court finds the defendant not guilty for the reasons summarized below.
The following facts have been stipulated to by counsel:
1. Mohammed Ateek Khan is a permanent resident alien from the Fiji Islands as of April 29, 1966, having entered the United States as a temporary visitor on November 2, 1964.
2. Defendant registered for Selective Service in 1966 at the age of twenty-three.
3. On November 1, 1966, a Classification Questionnaire, (Form 100), was mailed to the registrant to his then current address.
4. A completed Questionnaire was returned to the Local Board on February 6, 1967.
5. At Series III of Form 100, entitled "Marital Status and Dependents," the registrant indicated he gave partial support to his mother, father, thirteen and fifteen year old brothers, in the amount of $1000.00 out of $3000.00 income.
6. At Series IV of Form 100, entitled "Registrant's Family," he listed seven sisters and brothers, six live in Fiji, one brother lives in Canada, all are over twenty-one years of age; all but one is older than the registrant.
7. At Series V, entitled "Occupation," he indicated that he had been a dental technician since January 1967 and works for Resigno Dental Laboratories.
8. Registrant did not complete Series VIII for Conscientious Objector.
9. At Series IX, entitled "Education," he stated he was a part-time student at Philadelphia Community College.
11. There is nothing in the Selective Service file to indicate that the Defendant sought a personal appearance or appeal within the ten days permitted.
12. On April 17, 1967, the Local Board received a Form 109 from Philadelphia Community College indicating that Khan was an evening student from September 28, 1965, through January 21, 1966, and took seven credit hours. He was also currently enrolled taking three credit hours.
13. On April 28, 1967, an Order To Report on May 11, 1967, for Pre-Induction Physical Examination was issued. He was ultimately examined at the Armed Forces Examining and Entrance Station on August 7, 1967, and was found acceptable.
14. In the meantime, on June 14, 1967, the Local Board received a letter from the Defendant's then current employer, Morris Foxman, D.D.S., requesting a 2-A deferment on ...