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United States v. Winer


decided: March 2, 1972.


Van Dusen and Hunter, Circuit Judges, and Layton, District Judge.

Author: Van Dusen


VAN DUSEN, Circuit Judge.

This appeal challenges a sentence of July 12, 1971, following a district court finding that defendant was guilty of an indictment charging that he "did knowingly and unlawfully fail, neglect and refuse to perform a duty required of him by the provisions of the [Selective Service Act of 1948, as amended] in that he did knowingly fail . . . and refuse to comply with a valid . . . order . . . dated November 17, 1967, directing him to report for and submit to induction . . . on November 27, 1967," in violation of 50 U.S.C. App. 462.*fn1

The defendant was first ordered to report for induction by order dated May 28, 1965, of Local Board No. 29 in Cumberland, Maryland. As a result of (1) requests for transfer to other Local Boards in California, Delaware and Pennsylvania and for postponement of reporting dates, as well as (2) reviews by the Selective Service System and the Department of Justice, defendant's reporting date was postponed on numerous occasions until the issuance of the above-mentioned November 17, 1967, order to report on November 27. On August 11, 1967, defendant had requested a student deferment since he was a student at Lincoln University, and on October 31, 1967, Local Board No. 29 reaffirmed a position it had previously taken by letter of June 15, 1967, denying his request for a II-S classification, since there had not occurred since May 28, 1965, a change in circumstances beyond his control. See 32 C.F.R. § 1625.2; Morgan v. Melchar, 442 F.2d 1082 (3d Cir. 1971).

After the mailing of Conscientious Objector Form, SSS Form 150, to defendant on October 17, 1967,*fn2 the defendant wrote Local Board No. 29 on October 27, 1967, ". . . I have decided to forego for the time being the completion and submission of the conscientious objector form . . .," which letter was received by the Board on October 31, 1967. On October 30, 1967, Local Board No. 29 wrote defendant that it found no reason to consider his case since he had failed to return Form 150 within the specified time.*fn3 Defendant's contention that his requests for conscientious objector status in October and November 1967 required the reopening of his classification by the Local Board must be rejected because there was no basis for a finding by the Board that there had been a change in his status since the issuance of the May 28, 1965, order "resulting from circumstances over which [he] had no control." See 32 C.F.R. § 1625.2. In Ehlert v. United States, 402 U.S. 99, 108, 91 S. Ct. 1319, 1325, 28 L. Ed. 2d 625 (1971), the Court said that 32 C.F.R. § 1625.2 "barred presentation to the local board of a claim that allegedly arose between mailing of a notice of induction and the scheduled induction date."

Finally, defendant's claim that the postponement of his induction for a period greater than the 120 days provided for in 32 C.F.R. § 1632.2(a)*fn4 constituted a denial of due process is without merit. As to the period prior to May 8, 1967, the failure to require induction was at defendant's request and for his benefit during a period when his continuing duty to report made the above regulation inapplicable.*fn5 The order to postpone induction, which was mailed to defendant on May 8, 1967, indicated that it was being issued under the authority of the State Director, and hence it was not subject to the 120-day restriction of § 1632.2(a).*fn6 The fact that the postponement was "until further notice" and gave no termination date did not render it invalid.*fn7

The July 12, 1971, judgment and commitment will be affirmed.

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