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United States v. Bell

decided: February 27, 1973.


Kiley and Sprecher, Circuit Judges, and Grant, Senior District Judge.*fn*

Author: Grant

GRANT, Senior District Judge.

The defendant, Robert Lee Bell, appeals his conviction by the district court, sitting without a jury, for failure to submit to induction into the armed forces in violation of 50 U.S.C. App. § 462. We affirm.

On 24 April 1969 defendant was ordered to report for induction on 12 May 1969. Defendant requested a postponement of the induction in order to finish a school semester. A postponement was granted by the State Director of Illinois until the first induction call after 31 May 1969. On 20 May 1969 his local Board issued a rescheduling letter ordering defendant to report for induction on 2 June 1969. Defendant failed to report. No further postponements of the order were issued by either the local Board or the State Director.

On 5 June 1969 the local Board mailed a "Delinquent Registrant Report" to the United States Attorney, the report noting the defendant's failure to report and explaining that the prior postponement had been given only until the first induction call in June which happened to fall on June 2nd. Defendant was later interviewed by an FBI agent who was told by defendant that he would contact his local Board and report for induction "if given another chance". The agent reported defendant's statement to the local Board. Two days later, on 29 September 1969, the local Board received a letter from the defendant which stated as follows:

"Having had a great deal of time to think this summer, I would like to declare myself to be a conscientious objector. I hereby request that forms SSS-150 and SSS-151 be sent to me. Thank you."

The local Board requested instructions from the State Director and was advised to issue a second SSS Form 150, "Special Form for Conscientious Objectors," and to consider it. The form was sent to the defendant who returned the completed form on 31 October 1969. On 7 November 1969 the local Board reviewed the form and defendant's file but decided not to reopen his classification, there being no change in defendant's status resulting from circumstances over which he had no control. See 32 C.F.R. § 1625.2 (1971). Both the defendant and the United States Attorney were notified of the Board's action.

On 18 November 1969 the United States Attorney wrote the local Board stating as follows:

"It is suggested that the above-captioned registrant be reordered for immediate induction. This is to keep the record in good prosecutive order, if he fails to so appear, since his previous order to report was in effect cancelled because of his subsequent C.O. claim."

On 19 November 1969 the local Board mailed a new rescheduling letter which ordered the defendant to report for induction on 1 December 1969 at which time the defendant again failed to report.

Defendant first notes that Selective Service regulations provide that (1) a local Board may postpone an order to report for induction but only for a maximum of 120 days and (2) the local Board must mail a copy of the postponement to the registrant.*fn1 Defendant then argues that the failure of his local Board to further postpone the order of induction beyond 2 June 1969 rendered the original order and a fortiori, the rescheduling letter of 18 November 1969 null and void, citing Liese v. Local Board No. 102, 440 F.2d 645 (8th Cir. 1971). In particular, defendant notes that the original reporting date was 12 May 1969 and that the postponement regulation would only authorize a maximum postponement to 9 September 1969. Thus, when defendant filed his SSS From 150 on 31 October 1969, the original order was no longer in effect. Defendant concludes that his request for conscientious objector status

". . . should have been treated as a pre-induction claim, requiring reopening with the right to a personal appearance and an appeal. United States v. Freeman, 388 F.2d 246 (7th Cir. 1967), Mulloy v. United States, 398 U.S. 410, 90 S. Ct. 1766, 26 L. Ed. 2d 362 (1970). Instead, local board 214 treated the claim as a post-induction claim refusing to reopen the classification. (A. 12). Without the reopening and the right to a personal appearance or appeal, no valid induction order could be issued against the defendant, including the order issued on November 19, 1969."

The government contends that once the defendant refused to comply with his induction order, he was no longer entitled to any postponement. It correctly notes that not every delayed induction order constitutes a "postponement" of the type regulated by 32 C.F.R. § 1632.2(a)(c). That regulation

". . . refers to a postponement due to specified circumstances such as death or 'other extreme emergency beyond registrant's control.' This type of 'formal postponement' ordinarily would result from a request initiated by the registrant himself." United States ex rel. Luster v. McBee, 422 F.2d 562, 570 (7th Cir. 1970), cert. denied 400 U.S. 854, 91 S. ...

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