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UNITED STATES v. GREEN

May 8, 1972

UNITED STATES of America
v.
March Wayne GREEN


John W. Lord, Jr., Senior District Judge.


The opinion of the court was delivered by: LORD, JR.

JOHN W. LORD, Jr., Senior District Judge.

 Despite the barriers to speedy determination of issues thrown up by the Selective Service System's welter of rules and regulations, *fn1" the issue before us is a simple one: in what year was the defendant subject to induction. Because we find that he was liable in 1971, and his board failed to reach his random sequence number, we find him not guilty of violating 50 U.S.C.A. App. § 462, failure to perform a duty required by the Selective Service Act.

 With a system only sightly more advanced than that utilized by President Wilson and Secretary of War Newton D. Baker, the present Selective Service System draws numbers corresponding to birthdates. As must be universally known by this time, if one's number is called, one's number is up, and one either submits to induction or comes into court.

 Prior to this litigation, defendant did all that was required of him so that the case might reach its present posture. He registered with Local Board No. 125, Philadelphia, Pennsylvania (hereinafter sometimes the Local Board) on December 6, 1966, as required. His random sequence number was 184. Due to his enrollment at Virginia State College, he was placed in Class II-S (student). On June 8, 1970, the Local Board notified him of his reclassification to I-A, and of his right to a personal appearance and appeal to the State Board, which appeal was requested, in writing, on June 17, 1970. While this was pending, his number was reached; he was ordered to report on January 20, 1971, and this was cancelled by the Local Board on January 26, 1971, because the appeal was then to be (and was) forwarded to the State Appeal Board (Appeal Board). This body again classified him I-A on February 24, 1971, and three days later the Local Board notified the defendant, ordering him to report for induction on April 8, 1971. He failed to obey this order, and on November 15, 1971, a one count indictment was returned against him.

 The Selective Service System operates, to the extent that it follows the law, *fn2" under the Code of Federal Regulations. *fn3" A registrant's primary liability is limited to one year, during which he is classed in the First Priority Selection Group (FPS). 32 C.F.R. § 1631.7(b)(3), (c)(2). If his lottery number is not reached during that year, he is then reassigned to the Second Priority Selection Group (SPS) for the following year. 32 C.F.R. § 1631.7(d)(2). If the number is then reached, he is ordered to report for induction, pursuant to 32 C.F.R. § 1631.7(b)(3). Should, however, his number be reached, but he is not called while in the FPS, he is assigned to the Extended Priority Selection Group (EPS) for the following year. 32 C.F.R. § 1631.7(c)(1), (d)(4). His primary vulnerability is thereby extended for three months, and he is subject to call ahead of the members of the FPS for the following year. 32 C.F.R. §§ 1631.7(b) and (b)(2).

 The 1970 FPS was defined in the Code of Federal Regulations as follows:

 
(i) 1970: In the calendar year 1970 nonvolunteers in Class I-A or Class I-A-O born on or after January 1, 1944, and on or before December 31, 1950, who have not attained the 26th anniversary of their dates of their birth. 32 C.F.R. § 1631.7(c)(2)(i).

 Defendant's random sequence number of 184 was reached by his local board during 1970, but, because he was not called then he was placed in EPS for 1971, which is defined as:

 
(1)(R)egistrants who on December 31 were members of the First Priority Selection Group whose random sequence number had been reached but who had not been issued orders to report for induction. 32 C.F.R. § 1631.7(c)(1). (Emphasis supplied)

 After the rejection of his appeal (the pendency of which had caused the cancellation of an earlier induction order) he was ordered to report for induction as a member of the 1971 Extended Priority Group.

 We find that because of this, he was not in Class I-A on December 31, 1970, as that term is used in the definition of the First Priority Selection Group for 1970. Crowley v. Pierce, No. 71-158- Civ. J., 4 SSLR 3318 (M.D. Fla. 1971).

 It is well established by this time that an appeal from the classification of a local board results in a de novo classification, independent of that of the local board. This classification supersedes and supplants that of the local board, even if it is the same. 32 C.F.R. § 1626.26; United States v. Pence, 410 F.2d 557 (8th Cir. 1969); DeRemer v. United States, 340 F.2d 712 (8th Cir. 1965). In considering the question of jurisdiction of the board (as to which registration is the one appealed from) "the Courts review the record of the highest body within the Selective Service System which has determined the registrant's classification." United States v. Neamand, 302 F. Supp. 1296, 1301 (M.D. Pa. 1969). Here, as in Neamand, the highest board was the state of Pennsylvania appeal board.

 As a result, where the Local Board acted in 1970 and the Appeal Board in 1971, defendant was classified I-A in 1971, not 1970. Crowley v. Pierce, supra. Accordingly, we find that defendant was not a member of the FPS on December 31, 1970, and was not properly assigned to the EPS for 1971. In addition, the Appeal Board's I-A classification of March Wayne Green in 1971 placed him ...


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