United States v. Christopher Joseph Musser

478 F.2d 1068, 1973 U.S. App. LEXIS 10165

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 2, 1973
• Docket: 72-1276
• Status: Published

Opinions

PER CURIAM:

Defendant appeals his conviction of refusing to submit to induction (50 U.S.C. App. § 462(a)). An induction order issued September 15, 1970, ordered defendant to report on October 14, 1970. On September 21, 1970, defendant requested and received the special form for conscientious objectors which he returned to the local board on September 28, 1970. The board reviewed the claim, determined that it lacked sincerity, refused to reclassify defendant,¹ 2**and advised defendant that he must report for induction.

It is now claimed that the board did in fact consider the claim on the merits and in fact reopened the classification, and that having done so the board could not label its action as a refusal to reopen and thus cut off defendant’s rights to appear, be heard, and appeal. Defendant relies upon Miller v. United States, 388 F.2d 973 (9th Cir. 1967).

32 C.F.R. § 1625.2 provides that a classification “shall not be re-ppened” after the induction order is mailed unless the board “first specifically finds there has been a change in the registrant’s status resulting from circumstances over which the registrant had no control.” The language is mandatory. The board lacks power to reopen in the absence of the required finding. United States v. Stupke, 451 F.2d 997 (9th Cir. 1971); United States v. Hand, 443 F.2d 826 (9th Cir. 1971). A local draft board lacking power to formally reopen cannot accomplish a de facto reopening. United States v. Nix, 437 F.2d 746 (9th Cir. 1971). Miller v. United States, supra, is not contrary. In that case the State Director, acting within his authority, had ordered the local board to reconsider.

Had Musser been inducted and had he made an in-service claim to conscientious objector status no presumption that the local board evaluated and denied that claim could have been drawn. The board was powerless to reopen the classification. Anything the board recorded in its minutes or did on the merits of Musser’s conscientious objection had no validity, force, or effect.

Affirmed.

1 . The local board’s minutes stated: “C.O. claim reviewed under section 1625.2 SSR and classification not reopened.” And the form letter notice to Musser said that his classification was not reopened because there had not been a change in status resulting from circumstances over which he had no control.