United States v. Allen Lyle Heinrich

470 F.2d 238

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 26, 1973
• Docket: 71-1401
• Status: Published

Opinions

EUGENE A. WRIGHT, Circuit Judge:

Heinrich appeals from his conviction for failure to report for a physical examination in violation of 50 U.S.C. App. § 462. We affirm.

Heinrich registered for the draft on April 8, 1965. In October 1966 his local board granted him a III-A (hardship to dependent) deferment.

On December 12, 1967 Heinrich filed two documents with his local board. On his Dependency Questionnaire he wrote: “I am no longer supporting anyone besides myself. However I will be going back to school. I am now enrolled in Merritt J. C. in Oakland. Please reclassify me according to this new information.” His Current Information Questionnaire stated: “I am now a full-time student at Merritt J. C. Oakland, Calif.”

Heinrich’s local board met on January 9, 1968 and classified him I-A. On January 26, 1968 the local board sent Heinrich notice of his classification and notice of his rights to a personal appearance and to an appeal.

On January 30, 1968 the board received from the college a form signed by Heinrich and certified as true by the college indicating that Heinrich was pursuing a full course.

On March 8, 1968 the board ordered Heinrich to report for a physical examination on March 18, 1968. He received the notice but failed to report.

As we view this record, the crucial facts are three: (1) Heinrich was validly classified I-A on January 9, 1968 j¹ (2) the student certification filed on January 30, 1968, taken in conjunction with the documents received by the Board on December 12, 1967, presented a prima facie claim for a II-S classification; and (3) thirty-eight days after the Board received the student certification, Heinrich was ordered to take a physical examination.

These facts present a narrow issue: whether the passage of 38 days and the ordering of a physical examination were so unreasonable as to violate Heinrich’s constitutional right to due process of law. We do not believe that they were.

The regulations contemplate that the Board will require prompt physical examinations of all registrants classified I-A. This is pursuant to the need of the Board to know which registrants in this class are physically fit for service. The presentation of a prima facie claim for reclassification, by one already validly classified I-A, ought not to interfere with the reasonable efforts of the Board to acquire the information it needs.

Mulloy v. United States, 398 U.S. 410, 90 S.Ct. 1766, 26 L.Ed.2d 362 (1970), imposes on the Board a duty to reopen when a prima facie claim for reclassification is presented. No doubt this duty must be performed within a reasonable time. However, we are unable to conclude that 38 days before reopening and reclassification is a delay so unreasonable as to compel the invalidation of an order to report for a physical examination directed to one already validly classified I-A.

United States v. Brandt, 435 F.2d 324 (9th Cir. 1970), is clearly distinguishable. Brandt was not validly classified I-A.

If the certificate filed on January 30 be viewed as a notice of appeal, we would not consider failure to process and to dispose completely of the appeal within 38 days a denial of due process. Affirmed.

1 . This was a valid classification, since I-Ieinricli had failed to provide authentication from the junior college that lie was a full-time student. Former 32 C.F.R. § 1622.25, E.O. 11360, 32 Fed.Reg. 9790, July 4, 1967.