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United States v. Roberts

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT


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 same day. The form itself showed his Kokomo address rather than the newly reported Elkhart address.

We see no merit to Roberts' claim that he did not receive the statement of physical acceptability (DD Form 62), that he was deprived of the chance to challenge his acceptability, and that the subsequent induction order was invalid under 32 C.F.R. 1631.7(a).*fn5 The district judge did not err in deciding that Roberts was charged with receiving notice of his physical acceptability.

At the time of the August 26 mailing, Roberts' new Elkhart address had been entered on his SSS file cover sheet. And the Executive Secretary of the Kokomo Local Board effectually testified that in the ordinary course of business the Board takes its envelope address from the last address noted on the file cover sheet. The court could correctly rely on the presumption of regularity to conclude that the statement was sent to the proper address.

Furthermore, even if the statement of acceptability were sent to the Kokomo address, the evidence is still sufficient to support the court's finding. The record shows that Roberts received other Selective Service mail sent to the Kokomo address. No mail was ever returned to the Board. There was one envelope which Roberts received but which he never opened. And the district court was not compelled to credit Roberts' self-serving testimony of the non-receipt.

Assuming arguendo, however, that Roberts did not receive the statement of Physical Acceptability (DD Form 62) we see no prejudice to him. Eleven weeks prior to the date of his physical examination, Roberts had been notified to bring a doctor's certificate of any physical condition which might disqualify him from the armed forces. His file does not show any medical certificates. Furthermore, the order to report for induction should have put Roberts on notice that he had been found physically qualified. And Roberts had ample time -- more than twenty-one days -- during the postponement of his induction to question his physical qualifications.

II.

On September 11, 1969 the Board ordered Roberts to report for induction on October 20. This order was subsequently postponed "until further notice" by authority of the Indiana State Director under 32 C.F.R. 1632.2.*fn6 On October 17 the Board sent notice of the termination of postponement and notified Roberts to report for induction November 21, 1969.

Roberts claims that since his file contains no authority from the State Director to terminate the postponement, the Board was without authority to do so under 32 C.F.R. 1632.2(c).

We see no merit to the claim. We agree with the district court that general "orders" are not required to be placed in each registrant's file. We think that the district court correctly relied upon the presumption of regularity of Selective Service proceedings -- absent any showing by Roberts to the contrary -- for concluding that the termination of postponement notice was authorized, and that the Board's action was proper under 32 C.F.R. 1632.2(c). See United States v. Isenring, 419 F.2d 975, 979 (7th Cir. 1969).*fn7

We reject Roberts' suggestion that the Board's termination of postponement was unauthorized and a "possible vindictive" action so as to render Gutknecht v. United States, 396 U.S. 295, 90 S. Ct. 506, 24 L. Ed. 2d 532 (1970), applicable.

III.

Subsequent to the termination of the postponement of the induction order, Roberts filed an application for change of classification to C-O on the basis that he was a conscientious objector.

There is no merit in his contention that the Board wrongfully refused to reopen his classification to consider the conscientious objector claim, after the induction order had issued. The argument is squarely foreclosed under Ehlert v. United States, 402 U.S. 99, 91 S. Ct. 1319, 28 L. Ed. 2d 625 (1971); United States v. Jones, 447 F.2d 589, 592 (7th Cir. 1971); Wright v. Ingold, 445 F.2d 109 (7th Cir. 1971).

For the reasons given, the judgment is affirmed.


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