United States v. Joseph Alan Schmall

452 F.2d 468

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 11, 1972
• Docket: 71-1807
• Status: Published

Opinions

PER CURIAM:

Appellant was convicted of refusing induction in violation of 50 U.S.C. App. § 462. He seeks reversal on two grounds.

1. The regulations provide that “A local board of three or more members shall be appointed . . ..” 32 C.F.R. § 1604.52(a). It is stipulated that only two of the normal complement of three members had been appointed to appellant’s local board when his claim for student deferment was rejected and he was classified I-A. Since both members joined in the action, however, appellant can suggest no prejudice. Cf. United States v. Gasca, 449 F.2d 1288 (9th Cir. 1971); United States v. Reeb, 433 F.2d 381, 383-84 (9th Cir. 1970).

2. On August 21, 1967, appellant filed an SSS form “Request for Undergraduate Student Deferment.” On January 25, 1968, the board rejected appellant’s request and classified him I-A. A week later, on February 22, the board received a second “Request for Undergraduate Student Deferment” from appellant dated January 31. The board took no action on this communication. Appellant contends that the board should have treated it as a notice of appeal from the order rejecting appellant’s claim for a student deferment and classifying him I-A.

The regulations provide that a notice of appeal “need not be in any particular form” and “shall be liberally construed in favor of the person filing the notice so as to permit the appeal.” 32 C.F.R. § 1626.11(a). A related Operation Memorandum issued by the California headquarters of the Selective Service System on April 8, 1964, provides:

“If a local board receives within the time to appeal a letter from the registrant . . . expressing dissatisfaction with the classification, that letter should be regarded as a letter of appeal.

In short, any doubt whether an appeal is intended if the letter is filed within the period allowed for an appeal, should be resolved in favor of the appeal.

It is needless to point out that a registrant could successfully claim erroneous induction if an appeal taken by him is not acted upon by the appeal board.”

Here the form submitted by appellant within the allotted appeal period stated, “I am pursuing a full-time course of instruction at a college . . . and do hereby request that I be granted an undergraduate student deferment in Class II-S.” The local board could not reasonably take the notice at its face value as a request for student deferment and nothing more. • Obviously it was a reaction to the board’s order rejecting just such a request only six days before. There was nothing to indicate that the facts upon which appellant based his claim had changed in any way. The certificate from appellant’s college confirming his admission and satisfactory pursuit of a full-time course of instruction was very recent: it was dated January 3, 1968, and was received by the board January 8.

The only possible message appellant could have meant to convey by the notice was that he was dissatisfied with the board’s order rejecting his claim for student deferment and classifying him I-A, and that he wished to have it reviewed. Under the Selective Service System’s own policy of liberal interpretation, this should have been enough to alert the board to forward the file to the State Appeal Board.

Reversed.