Clark, Associate Justice, Retired,*fn1 Swygert, Chief Judge, and Fairchild, Circuit Judge.
FAIRCHILD, Circuit Judge.
Philip Lemmens appeals from a conviction of failure to report for induction. He challenges the validity of the board's order on several procedural grounds, and on the ground that the board was unlawfully constituted. He also asserts that there was no basis in fact for 1-A classification and rejection of his claim as conscientious objector. We conclude that the latter challenge has merit, and do not decide the others.
Lemmens registered with his local board in January, 1965 at age 18. He did not then claim to be a conscientious objector. He was first classified and deferred as a high school student, and then twice as a college student, effective until October, 1967. On September 11, 1967, while still age 20, he filed the conscientious objector Form 150. The local board and, on appeal, the appeal board classified him 1-A. Neither board indicated its reason for rejecting his claim as conscientious objector.
Lemmens was physically examined and found acceptable. The local board ordered him to report for induction April 18, 1968. He notified the board that he would not report, and did not.
At trial, the district court concluded, "But the fact that he made his claim belatedly and the fact that he hasn't supported it with any material of substance all demonstrate that the board had a basis in fact for its conclusion."
Lemmens did not report for induction. The government argues that because he did not first report and then refuse to submit, he failed to exhaust administrative remedies and is not entitled to judicial review.
Congress has provided that there shall be no judicial review of a classification except as a defense to a criminal prosecution "after the registrant has responded either affirmatively or negatively to an order to report for induction * * *."*fn2 That language does not deny review to a defendant who has wholly failed to report.
In McKart v. United States*fn3 the Supreme Court held judicial review appropriate in a criminal prosecution where a defendant wholly failed to report. The Court disposed of other challenges to the right of review, but there appears to have been no challenge based on the fact that he did not first report and then refuse to submit.
The government relies on United States v. Smogor*fn4 decided by this court a few days before McKart. Smogor's physical examination was no longer valid on the induction date. If he had reported, he would have been re-examined, and there was a theoretical possibility he might have been rejected as a result. We said Smogor, by not reporting, had failed to exhaust administrative remedies and had lost his right of review. One of the holdings in McKart was that even though McKart had failed to report for a pre-induction physical, with the same possibility of rejection, he was not barred from review of his classification. If the holding in Smogor, above referred to, retains any validity after McKart, Smogor's facts differ from those now before us, in that Lemmens had been found acceptable upon a physical examination, and the results were still valid.
We think that McKart necessarily implies that Lemmens' failure to report does not bar review.*fn5
(2) Lemmens' claim as conscientious objector.
The local board reclassified Lemmens 1-A on October 12, 1967, rejecting his claim as conscientious objector. Presumably because of a letter he presented after receiving notice, the board again classified him 1-A October 26. Lemmens did not appear personally before the board. There was testimony at trial suggesting ...