OPINION AND ORDER
KNOX, District Judge.
The defendant is charged with failure to submit to induction into the Armed Forces of the United States under the Military Selective Service Act of 1967 in violation of Title 50 U.S.C.A. App. Sec. 462(a). Upon a trial without a jury, this court makes the following findings of fact:
(1) Raymond Joseph Davis, the defendant, is registered with the Local Board No. 63 in Erie, Pennsylvania, as required by the Selective Service Act.
(2) On August 8, 1967, he was classified I-A by Local Board No. 63.
(3) On May 1, 1968, he was found acceptable for service in the armed forces and notified to that effect May 21, 1968.
(4) On February 13, 1969, he was ordered to report for induction on March 3, 1969.
(5) On February 19, 1969, his mother requested that he be deferred for hardship reasons.
(6) On February 26, 1969, his induction was postponed until April 1969 to permit consideration of his hardship deferment application (III-A).
(7) On April 3, 1969, he was classified III-A for six months.
(8) On October 2, 1969, Local Board No. 63 received information on a SSS Form 109 from Brevard Junior College, Cocoa Beach, Florida, that the defendant was enrolled as a full-time student.
(9) On January 8, 1970, he was classified II-S by Local Board No. 63 and was so notified.
(10) On December 3, 1970, he was classified I-A since the Board was not notified that he was pursuing a full-time course of study at any college. This I-A Classification was not appealed by the defendant within 30 days as prescribed by law.
(11) On January 4, 1971, he was mailed an order to report for induction on January 18, 1971, at 5:30 a.m. This letter was mailed to his mother's address in Erie. Previous letters to his last known address, 880 Diplomat Boulevard, Apartment No. 8, Cocoa Beach, Florida 32931, were returned "Moved, left no address". He had given his mother's address in Erie as a place where someone would always know his whereabouts.
(12) The induction notice was received by his mother some time prior to January 14 and forwarded by her to defendant in Florida were he received it on January 18, 1971.
(13) A letter dated Thursday, January 14, 1971, was purportedly received Monday, January 18, 1971, by the Local Board from the defendant's mother requesting a III-A hardship exemption and stating that the defendant was in college in Georgia.
(14) On January 18, 1971, the defendant failed to report for induction.
The defendant has moved for acquittal on three grounds. First, that the order for induction was invalid, second, that the induction notice was improperly mailed and third, that Local Board No. 63 was not properly constituted.
I. Validity of the Induction Order.
The defendant contends that the January 14th request of his mother for a III-A hardship classification should have been considered and acted upon by the Local Board. Under the administrative procedures formulated for processing selective service classifications, a registrant has thirty days after he has been re-classified to appeal this reclassification to his local board. Raymond Davis was reclassified I-A on December 3, 1970, and he had until January 3, 1971, to appeal this classification. This he did not do.
The United States Supreme Court in McGee v. United States, 402 U.S. 479, 91 S. Ct. 1565, 29 L. Ed. 2d 47 (1971) dealt with the issue of exhaustion of administrative remedies by a registrant. In that case the court considered the application of the exhaustion doctrine to a defendant who was reclassified I-A and failed to appeal his reclassification. The court said:
". . . the task for the courts, in deciding the applicability of the exhaustion doctrine to the circumstances of a particular case, is to ask 'whether allowing all similarly situated registrants to bypass (the administrative avenue in question) would seriously impair the Selective Service System's ability to perform its functions.'" 402 U.S. at 484, 91 S. Ct. at 1569.
Keeping in mind the suggestions of the court in McGee, we must conclude that the defendant, Raymond Davis, has failed to exhaust his administrative remedies. A III-A hardship classification depends upon particular factual questions which the expertise of the administration of the Selective Service System was designed to resolve.
The defendant next contends that Local Board No. 63 should have reopened his classification upon receiving the letter dated January 14 from his mother, which requested the board to return her son to a III-A hardship deferment and also mentioned he was attending college. This contention is untenable for two reasons: First, the request for III-A exemption was untimely. Second, a classification will not be reopened after the induction notice is sent unless facts arise after the sending of the induction notice over which the defendant had no control.
Turning to the first reason, that of untimeliness, the government quotes from Blades v. United States, 407 F.2d 1397 (9th Cir. 1969) that if the board does not have the request for reclassification prior to the time for induction, it cannot be faulted for failure to reopen the classification. Although there is merit in this argument, the facts in Blades were somewhat different. In Blades the Selective Service Form was mailed at such a time that it could not have been expected to reach the local board prior to the induction date. The court in Blades specifically reserved judgment as to "what would happen if a registrant were to mail such a [request] in sufficient time to be received in the ordinary course of the mails, but the form were lost or delayed in transit." Blades v. United States, supra, 407 F.2d p. 1399.
It is doubtful in our case as to whether the Thursday, January 14th letter of Mrs. Davis was received by the local board prior to 5:30 Monday, January 18th induction date or not. It makes little difference in our opinion. The letter of January 14 although sufficient on its face to induce a local board to reopen a registrant's classification
came at such a time prior to induction that Local Board No. 63 did not have sufficient time in which to act. We will not encourage a disruption of the Selective Service System by last minute filing of requests for reopening of classifications on or just prior to induction dates.
The second reason for denying defendant's challenge of the induction order is that stated by the United States Supreme Court in Mulloy v. United States, supra, when it commented at page 414, 90 S. Ct. at page 1770:
"If reclassification is sought after an order to report for induction has been mailed to the registrant, the regulations provide that the classification 'shall not be reopened . . . unless the local board first specifically finds there has been a change in the registrant's status resulting from circumstances over which the registrant had no control.' 32 C.F.R. § 1625.2."