United States v. Randall Scott Adkins , 474 F.2d 381 ( 1973 )

JAMESON, District Judge:

Randall Scott Adkins appeals his conviction by the court sitting without a jury of failing to submit to induction in violation of 50 U.S.C.App. § 462. The sole issue is whether his local board violated Selective Service Regulations dealing with the Extended Priority Selection Group (32 C.F.R. § 1631.6(d)(5)) in ordering his induction after April 1, 1971.¹

Adkins was classified II-S from December, 1967 to December, 1970, when he was reclassified I-A. On January 1, 1971 he was transferred to the Extended Priority Selection Group. On February 5, 1971 he reported for his physical examination and was found acceptable.

On February 11, 1971 the board received a letter from Adkins requesting SSS Form 150, Special Form for Conscientious Objector. This form, which contains the statement, “Complete and return within 30 days”, was mailed to Adkins on the same day.² The form was never returned. On February 16, 1971 Adkins was notified of his acceptability for induction.

On April 19, 1971, without any request from Adkins, the board reopened and reviewed his status and retained him in I-A. After a reopening and reclassification a registrant has 30 days to appeal. (32 C.F.R. §§ 1625.13, 1626.2) On May 24, 1971 Adkins was ordered to report for induction on June 7, 1971. On June 2, 1971, he again requested SSS Form 150, and it was mailed to him the same day. On June 8 he reported for induction but refused to submit.

Appellant contends that § 1631.6(d) (5), supra, required that his induction be scheduled for a date prior to April 1, 1971 or that on that date he be transferred to a lower priority selection group.

This court has construed the meaning of the exception in § 1631.6(d)(5) supra permitting an order “to report for induction as soon as practicable” in two recent cases — United States v. Lewis, (unpublished), No. 72-1927 (9th Cir.) decided September 8, 1972, and United States v. Bowen, 467 F.2d 470 (9th Cir.) decided September 29, 1972.

In Lewis we affirmed the district court, incorporating by reference its opinion filed January 21, 1972, 5 SSLR 3134(D.Or.Cr. 71-276). Factually Lewis is similar to this case. In August the local board sent Lewis a SSS Form 150, which he did not return. On December 29, 1970, the board reviewed his II-S status and classified him I-A. On January 12, 1971 he was placed in the Extended Priority Selection Group. On March 2, without a request from Lewis, the board reopened his classification and retained him in I-A. On April 5 he was ordered to report for induction on April 27.

Assuming “that the circumstances' covered by the exception were intended primarily to remedy delays initiated by the registrant,” the court held that it did not follow “that a brief delay caused by board action renders an induction order void”, and suggested that the judicial construction for which Lewis contended “would deny meaning to the words ‘as soon as practicable’ and would frustrate the intent behind the exception.” The court continued in part:

“In the absence of evidence that the board acted arbitrarily, or reopened the defendant’s file for the sole purpose of extending his vulnerability, I must assume that the board acted in good faith and reviewed the file because it had some legitimate reason to do so.” United States v. Lewis, supra.

In Bowen we upheld an order to report for induction on April 26, 1971 where the registrant had appealed his I-A classification following denial of his conscientious objector claim, pointing out that “Bowen was not inducted prior to April 1 because his appeal caused the ‘inability of the local board to act’ in sufficient time” and that the board did “order Bowen to report ‘as soon as practicable.’ ” We again recognized that a local board “has reasonable discretion to direct its operations in accord with its own procedures” and presumed “that the board acted regularly and in the usual course of its business.” United States v. Bowen, supra, 467 F.2d at 472. In Bowen we also reviewed cases in other circuits interpreting the regulation and upholding post April 1 inductions.³

Adkins, as did Bowen, relies heavily on United States v. Born, 338 F.Supp. 444 (W.D.Mich.1972), the only case to hold that an induction after April 1 was beyond the jurisdiction of the board. As we pointed out in Bowen, Born is distinguishable: “There, a delay of almost three months was found to have been due solely to board mismanagement.” United States v. Bowen, supra, 467 F.2d at 472.

Adkins’ Selective Service File does not show when the board met in March, 1971.⁴ The Government stated in its brief that the board met on March 15. This was 31 days from the date Form 150 was mailed. Particularly in view of the statements in the Form and accompanying notice, the board could reasonably wait at least 30 days to give Adkins an opportunity to complete and return the Form. Allowing time for receipt of communications by mail, we can not say that the board acted unreasonably in deferring action until its April meeting.

While the board was not required to reopen Adkins’ case at its April 19 meeting, there is no evidence that it abused its discretion in doing so. It could not then order induction for another 30 days. On May 24 Adkins was ordered to report on June 7.

While the delay here was longer than in Lewis and Bowen, we again recognize the “necessary administrative flexibility” available to local boards in their efforts to comply with § 1631.6(d)(5).⁵ As in Bowen, we “presume that the board acted regularly and in the usual course of its business.” ⁶ In the absence of any showing of bad faith or mismanagement by the board, or of any prejudice to the registrant,⁷ we conclude that Adkins’ local board proceeded with reasonable dispatch to comply with the regulations and that Adkins “was inducted as soon as practicable.”

Affirmed.

1 . 32 C.F.R. § 1631.6(d)(5) :

“(5) Members of the Extended Priority Selection Group who have not been issued orders to report for induction and originally scheduled for a date prior to April 1 shall forthwith be assigned to the lower priority selection group to which they would have been assigned had they never been assigned to the Extended Priority Selection Group; except that members of the Extended Priority Selection Group who would have been ordered to report for induction to fill the last call in the first quarter of the calendar year but who could not be issued orders shall remain in the Extended Priority Selection Group and shall be ordered to report for induction as soon as practicable. Circumstances which would prevent such an order shall include but not be limited to those arising from a personal appearance, appeal, preinduction physical examination, reconsideration, judicial proceeding, or inability of the local board to act.”

The same regulation was formerly § 1631.7(d)(5). By amendment the numbering but not the language has been changed.

2 . A “Notice to Registrant”, transmitting Form 150, reads in part:

“ * * * The specified thirty-day period is normally sufficient for the completion and filing of this form, together with any supporting letters or affidavits from your minister or priest, teachers or counselors, family or friends, which you may wish to offer to the members of your local board.

“Although you should make a timely filing, your claim to conscientious objection is a matter that will be taken up by your board at a later date. * * ”

3 . Smith v. Tarr, 444 F.2d 251 (2 Cir. 1971); Lawton v. Tarr, 446 F.2d 787 (4 Cir. 1971) cert. denied, 405 U.S. 924, 92 S.Ct. 969, 30 L.Ed.2d 796 (1972); Schemanski v. Tarr, 331 F.Supp. 65 (N.D.Ill.1971).

4 . There is no entry in the board’s “Minutes of Action” between February 16, 1971 and April 19, 1971. Nor was any evidence offered at the trial with respect to a March meeting of the board.

5 . United States v. Born, supra 338 F.Supp. at 447; United States v. Lewis, supra.

6 . While we do not approve of unnecessary delays by draft boards, particularly in the light of the aim and purpose of § 1631.6(d)(5), we cannot say that this board’s inaction exceeded the scope of flexibility granted. Clearly it did not amount to “irregular, unjustifiable and lawless conduct.” United States v. Born, supra 338 F.Supp. at 447.

7 . Appellant does not argue that he was prejudiced, but rather that the board failed to comply with Selective Service Regulations. Had the board acted in March, Adkins would have been called for induction at an earlier date. The board’s failure to act in March and the reclassification of Adkins in April simply lengthened the time during which he could assert a claim for conscientious objector status.