32 C.F.R. § 1625.2 makes it clear that the Local Board is without power to consider any conscientious objector claim regardless of when it crystallized in the registrant's mind, if submitted to it after it has mailed the registrant an induction notice.
Ehlert pointed out that the registrant whose conscientious beliefs crystallized after receiving his induction notice would not be precluded from asserting his claim as an inductee after he had gone into the Army. Since a registrant in that situation has an opportunity to obtain an in-service determination of his claim after he "crosses the line," he is not without a forum. In the situation presented here, however, the registrant could not obtain consideration of his conscientious objector claim once he entered the Army. The applicable Army Regulations and Department of Defense directives for the processing of in-service conscientious objector claims preclude the Army from considering a claim, such as defendant's where his views crystallized before he received his notice of induction. AR 635-20; DOD 1300.6. Thus, we cannot bar court review of defendant's classification by holding that he should have "crossed the line" and entered the Army which would have given full consideration to his claim.
This court is nevertheless barred from considering the merits of defendant's conscientious objector claim because of his complete failure to exhaust any administrative remedies. McGee v. United States, 402 U.S. 479, 91 S. Ct. 1565, 29 L. Ed. 2d 47 (1971). Before induction day itself, defendant at no time made any attempt to communicate to his Local Board that he was conscientiously opposed to war. Yet, he testified that his beliefs had crystallized at least three years before he received his induction notice of February, 1968.
His proffered excuse for never approaching the Selective Service System with his beliefs is that he was ignorant of the existence of the conscientious objector status much of that three years, and always confused about particular requirements. I find his testimony simply incredible. He testified that he spent about two years in colleges during this time, and more significant is the fact that he lived in Canada for a few months, where his roommates were United States draft fugitives. Finally, he testified that in late 1967, he spoke at least once with Mr. Arlo Tatum, an eminently experienced draft counselor, at the Central Committee for Conscientious Objectors here in Philadelphia. Defendant expects this court to believe that his "ignorance" suddenly vanished on the day of induction when he informed the authorities at the induction center that he was conscientiously opposed on grounds of religious beliefs to all wars and would file an SS 151 Form for alternate duty. This court is not so ignorant that it will fulfill the defendant's expectations. There is no basis, whatsoever, in this case for a relaxation of the usual exhaustion requirements, therefore defendant is barred from having his claim of conscientious objection considered as a defense to this criminal trial. United States v. El, 443 F.2d 925 (C.A. 3, 1971).
Therefore, I find the defendant guilty of wilfully and knowingly failing to submit to induction in violation of 50 App. U.S.C. § 462.
Defendant shall report for sentencing when ordered to do so.
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