United States v. Donald Alan Bush , 476 F.2d 1094 ( 1973 )

MORGAN, District Judge.

Defendant appeals a judgment finding him guilty of the offense of wilfully and knowingly failing to submit to induction into the armed forces of the United States in violation of 50 Appendix, United States Code, Section 462. The basic contention for reversal is defendant’s assertion that he was entitled to a conscientious objector classification.

Defendant filed his original selective service questionnaire in late 1964, in which he asserted no physical or mental disqualification and no claim to conscientious objector status. He did state that he was a student at Purdue University. His local board granted him a student deferment.

On December 15, 1965, defendant reported to his board that he had withdrawn from Purdue. On a current status questionnaire filed thereafter, defendant asserted a mental condition. He also requested a form for claiming classification as a conscientious objector. He filed the latter form on January 11, 1966, asserting that he was conscientiously opposed to war by reason of his belief in and adherence to the philosophical theories of Immanuel Kant. The board classified defendant 1-A, available for military service. Defendant was so notified by mail, such notice containing advice of his right to appeal and the time and manner for appealing that classification.

About two weeks thereafter, defendant filed a current information questionnaire, reporting a change of employment. He did not request an appeal of his classification. Months later he did request an appeal, upon the sole ground that he had been working in Indianapolis and only returned on weekends to the Cincinnati mailing address which he had supplied to the board. The board refused to extend the time limit for appeal.

On June 26, 1966, following a pre-induction Army physical examination and his being notified that he was qualified for military service, defendant filed another current information questionnaire in which he reported that he was a student at Ohio State University, but he claimed no disqualifying conditions. Defendant was classified 1-A. He sought and obtained a personal appearance before the local board, followed by an appeal to the appeal board. That appearance and appeal were limited to his claim for a student deferment, a classification which was granted to him in late May, 1968.

In the meantime, defendant had written to the board on May 2, 1968, stating that he would like to appeal his then 1-A classification on the ground that “I am a conscientious objector as described” in the form “filled out in late 1965 or early 1966.” Later the same date defendant wrote to the board regarding his C-0 claim, stating that he would “defer that appeal” because he was “primarily interested in regaining my II-S status.”

As graduation from Ohio State approached, defendant was reclassified 1-A and notified. On December 2, 1968, he wrote to the board saying that he wanted to appeal “on the grounds of a hardship deferment.” Later he wrote to the board withdrawing the hardship claim, stating, “This being the case I would like to reopen an appeal of my beliefs (as explained in a C-0 form on record with your office since 1965) * * Thereafter, on defendant’s request, the local board scheduled an interview with defendant for February 25, 1969, at which time defendant was invited to appear. He could not appear, but submitted to the board a written statement repeating and expanding his beliefs based upon the Kantian philosophy. He was reclassified 1-A. An appeal was taken and the appeal board reclassified him 1-A.

An induction order for defendant, issued October 1, 1969, was postponed because of defendant’s enrollment in Northwestern University School of Business. A rescheduled induction order was issued June 29, 1970. Thereafter, defendant requested from his board another conscientious objector form. That form was mailed to him, but never returned by him to the board. He reported for induction on August 13, 1970, but refused to submit to induction.

It is patent upon this record that defendant failed to exhaust his administrative remedies by either requesting an interview with his board or an appeal to the appeal board upon denial of his C-0 claim in 1966.

The guidelines for applying the exhaustion principle, as established by the Supreme Court, are contained in representative statements by that Court as follows:

“ * * * [Petitioner’s] failure either to secure a personal appearance or to take an administrative appeal— implicates decisively the policies served by the exhaustion requirement, especially the purpose of insuring that the Selective Service System have full opportunity to ‘make a factual record’ and ‘apply its expertise’ in relation to a registrant’s claim. When a claim to exemption depends ultimately on the careful gathering and analysis of relevant facts, the interest in full airing of the facts within the administrative system is prominent, * * *.” McGee v. United States, 402 U.S. 479, 489-490, 91 S.Ct. 1565, 1571, 29 L.Ed.2d 47 (1971).

“In the circumstances of this case, petitioner’s failure to take an administrative appeal not only deprived the appeal board of the opportunity to ‘apply its expertise’ in fact-finding to the record that was available; it also removed an opportunity to supplement a record containing petitioner’s own submission but not containing the results of any specific inquiry into sincerity.” Ibid, at 490-491, 91 S.Ct. at 1572.

“Conscientious objector claims * * * would appear to be examples of questions requiring the application of expertise or the exercise of discretion. * * * The Selective Service System is empowered by Congress to make such discretionary determinations and only the local and appeal boards have the necessary expertise.” McKart v. United States, 395 U.S. 185, 198, 89 S.Ct. 1657, 1665, 23 L.Ed.2d 194 n. 16 (1969).

In applying the exhaustion of remedies principle, this court has recently held that the exhaustion principle should be applied by the courts except where exceptional circumstances are shown to have existed. United States v. Rabe, 466 F.2d 783, decided by this court on August 11, 1972. Absent such circumstances, failure to request a personal appearance before the local board or to appeal to the appeal board has been repeatedly held to bar a defense to prosecution, based upon a conscientious objector claim. E. g., United States v. Lyzun, 444 F.2d 1043, 1044 (C.A.7 1971); United States v. Smogor, 411 F.2d 501, 503 (C.A.7 1969), cert. denied, 396 U.S. 972, 90 S.Ct. 460, 24 L.Ed.2d 440; United States v. Goodman, 435 F.2d 306, 313-314 (C.A. 7 1970); United States v. Kurki, 384 F.2d 905, 907 (C.A.7 1967), cert. denied, 390 U.S. 926, 88 S.Ct. 861, 19 L.Ed.2d 987.

The Regulations vest discretion in a local board to enlarge the time for appeal when it is shown that failure to request an appeal within the time specified was without the registrant’s fault. 32 C.F.R. 1626.2(d). Here, notice of classification was mailed to the address supplied by defendant, and his only suggestion was that he did not receive such notice because he was absent from such address except on weekends. Failure of the board to extend time under those circumstances was neither arbitrary nor an abuse of the board’s discretion. E. g., United States v. McDuffie, 443 F.2d 1163, 1165 (C.A.5 1971); Gretter v. United States, 422 F.2d 315, 317 (C.A.10 1970); United States v. Haseltine, 415 F.2d 334, 336 (C.A.9 1969). It is clear upon this record that defendant asserted his conscientious objector claim when his first student deferment ended, and that he thereafter failed to pursue it except as it seemed convenient to do so. From time to time in addition to his student and C-0 claims, defendant claimed deferment upon the basis of hardship, mental disability, and the physical impairment of a tendency to flat feet. The C-0 claim is shown to have been reasserted by defendant only when one or more of such pending claims were either withdrawn by him or rejected by the board.

There is no merit to defendant’s contention! that the board was required to find facts showing that he was not entitled to his claim of conscientious objection. By his failure to follow the appeal procedures provided for him, defendant never invoked the statutory processes which would have initiated a factual inquiry into the sincerity of his claim. McGee v. United States, supra.

The judgment is Affirmed.