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United States v. Roberts

decided: August 3, 1972.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
RICK A. ROBERTS, DEFENDANT-APPELLANT



Duffy, Senior Circuit Judge, and Kiley and Hamley,*fn1 Circuit Judges.

Author: Kiley

KILEY, Circuit Judge.

Defendant Roberts appeals from his conviction, after a bench trial, of knowingly and wilfully failing to report for induction in violation of 50 U.S.C.App. ยง 462.*fn2 We affirm.

During the period between his original and final I-A classifications, Roberts had been successively classified as I-S-H (high school student); I-A (exstudent); and III-A (husband and father). When Roberts registered with his Local Board in 1965 he gave his address as 2304 Saratoga Avenue, Kokomo, Indiana. The cover sheet of his SSS file shows his subsequent addresses: on October 4, 1967 as 1810 North Washington, Kokomo; on June 11, 1968 as Village Green, Lot 74, Kokomo; and on August 11, 1969 as 5022 East Jackson, Elkhart, Indiana. Roberts' wife on April 14, 1969 reported to the Board that he left her in March, 1969, that she had filed divorce proceedings, and that his "present" address was 3059 Hammond, Elkhart, Indiana. The "3059 Hammond" address, however, was never entered on his SSS file cover sheet.

At the trial Roberts contended, inter alia, that his Kokomo, Indiana Local Board denied him procedural due process by erroneously mailing notices to the wrong addresses. Roberts argued that the order to report for induction was invalid since he had never received either a notice of his Right to a Personal Appearance and Appeal (SSS Form 217) or a statement of his Physical Acceptability for Service in the Armed Forces (DD Form 62).

The district judge, relying on the presumption of regularity of selective service proceedings and on the testimony at trial, made specific findings of fact. The judge concluded that Roberts was charged with receiving the notice and statement under 32 C.F.R. 1641.3.*fn3

I.

A. Notice of Right to Personal Appearance and Appeal

Roberts was classified I-A for the third time on April 30, 1969. On May 1 the Board mailed his notice of classification (SSS Form 110) and notice of Right to a Personal Appearance and Appeal (SSS Form 217) to the Village Green address in Kokomo.

Roberts claims that he never received the notice, since at the time of the mailing he was living at the "3059 Hammond" address.

We agree with the district judge's conclusion that Roberts was charged with receiving the notice. The mail was never returned to the Board as undeliverable. And the record shows that Roberts did receive other mail sent to the same Kokomo address. Roberts received both a May 1 notice of classification (SSS Form 110) (i.e., new draft card) and a May 6 Order to Report for a Physical Examination (SSS Form 223).

Furthermore, assuming arguendo that Roberts did not in fact receive the Notice of Right to a Personal Appearance and Appeal (SSS Form 217), we can see no prejudice to him. He admitted that after his final reclassification from III-A to I-A he received a new draft card dated May 1 which expressly informed him of his right to a personal appearance and appeal. We therefore see no merit in Roberts' claim that he was denied due process by an erroneous mailing of the notice of right to a personal appearance and appeal.

B. Statement of Physical Acceptability

On August 11, 1969 Roberts notified his Local Board in Kokomo of a change of address to 5022 East Jackson, Elkhart. On August 12, 1969 he took a delayed preinduction physical examination through the Goshen Local Board.*fn4 On August 26, 1969 the Kokomo Board received the statement of Roberts' physical acceptability (DD Form 62) from the Goshen Board and sent a copy to him that ...


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