APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Criminal No. 72-161).
Rosenn and Hunter, Circuit Judges, and Hannum, District Judge.
Appellant, Robert James Gazda, was convicted of failing to submit to induction in violation of 50 App. U.S.C. § 462(a). On November 13, 1973, he was sentenced to a term of four years imprisonment plus costs. On appeal, Gazda alleges various errors by his local draft board and by the trial court. Because we agree with his contention that the order directing him to report for induction was invalid and untimely under Selective Service Regulation § 1631.7(d) (5), we reverse.
Following the termination of his II-A occupational deferment in the summer of 1970, Gazda claimed that he was entitled to conscientious objector status.*fn1 On September 10, 1970, after an interview, Gazda's local board denied his conscientious objector claim and classified him I-A, notifying him by a classification card (SSS Form 110). No reasons were given for the denial. Five days later, this court held, in Scott v. Commanding Officer, 431 F.2d 1132 (3d Cir. 1970),*fn2 that denial of a claim for conscientious objector status without a statement of the basis for the action invalidates the registrant's induction order.
On October 5, 1970, Gazda requested a personal appearance to further present his conscientious objector claim. He failed to report for the scheduled personal appearance on November 3, 1970, and was retained in class I-A. Gazda was notified of the classification the following day and again no reasons were given for the denial of his conscientious objector claim.
On January 5, 1971, Gazda was issued an order to report for induction on January 25, 1971.*fn3 He notified the board that he would not report for induction and, in fact, did not do so.
On May 6, 1971, the local board was directed by the state director of the selective service system to reopen and reconsider Gazda's classification in order to comply with this court's ruling in Scott.
On June 1, 1971, Gazda was requested to meet with the local board for an interview on June 8, 1971. Following the interview, which was rescheduled and held on July 13, the board reopened his classification and reclassified him I-A. On July 14, 1971, he was notified of the basis for the denial of his request for conscientious objector classification.
On October 8, 1971, Gazda was ordered to report for induction on November 9, 1971. He failed to appear as ordered and this criminal proceeding followed.
To consider Gazda's contention that his induction order was invalid it is necessary to review the relevant selective service regulations promulgated to implement the induction system. In November 1969, selective service regulations were amended by executive order to provide for induction by lottery. The regulations provided that those registrants between the ages of 19 to 26 who are classified I-A during the calendar year are placed in the First Priority Selection Group (FPSG) for that year.*fn4 If the registrant's random selection number is not reached during that year, the registrant is placed in a lower priority group.*fn5 If the random selection number is reached during the year of first priority, the registrant is at that time subject to induction. It was recognized, however, that it might not be possible to issue induction orders during a calendar year to all registrants subject to induction during that year.*fn6 The regulations thus provide that such registrants are automatically assigned to an Extended Priority Selection Group (EPSG) until April 1 of the following year.*fn6A After volunteers, members of the EPSG are the first to be inducted during the calendar year.*fn7
A member of the EPSG who is not issued an order scheduling his induction prior to April 1 is assigned to a priority group lower than the FPSG and is eligible to be called only after members of the EPSG and FPSG for that year have been called. An exception to the April 1 deadline is provided for members of the EPSG "who could not be issued orders" prior to April 1. These registrants remain in the EPSG and "shall be ordered to report for induction as soon as practicable."*fn8 One court that has construed this regulation has stated:
This court takes judicial notice of the basic broad purpose of the new random selection plan of call, which was and is to eliminate as much as possible the ambiguity and cruel uncertainty which heretofore accompanied a young man's assessment ...