United States v. Ray Austin Bagley

436 F.2d 55, 1970 U.S. App. LEXIS 5757
CourtCourt of Appeals for the Fifth Circuit
DecidedDecember 29, 1970
Docket28664
StatusPublished
Cited by13 cases

This text of 436 F.2d 55 (United States v. Ray Austin Bagley) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Ray Austin Bagley, 436 F.2d 55, 1970 U.S. App. LEXIS 5757 (5th Cir. 1970).

Opinions

TUTTLE, Circuit Judge:

This post induction Selective Service case presents, once again, the question of whether a draft board’s failure to follow its own regulations constitutes reversible error. Because this court has long adhered to the proposition that “it is of the essence of the validity of board orders and of the crime of disobeying them that all procedural requirements be strictly and faithfully followed, and that a showing of failure to follow them with such strictness and fidelity will invalidate the order of the board and a conviction based thereon,” Olvera v. United States, 223 F.2d 880, at 882 (5th Cir., 1955), we reverse.

In April, 1968, appellant applied for a ministerial (IV-D) exemption or, in the alternative, a conscientious objector (IO) classification, based on his activity as a Jehovah’s witness. These claims were denied, and on June 3, 1968, he requested a personal appearance. On that same day, appellant’s employer (ITT Rayonier in Fernandina Beach, Florida) requested that he be given an occupational (II-A) deferment because of his work in the chemical department.

A personal appearance was scheduled for June 25, 1968. Prior to this date, appellant filed a written request for a conference with the Board's government appeals agent. This request was made pursuant to a written statement from the Board that he had a right to contest the denial of his application for a deferment and was entitled to the assistance of a government appeals agent for that purpose.1

[57]*57Appellant received no response to his request. However, at the time of his personal appearance and in the presence of the Board and its clerk, he again requested a conference with the Appeals Agent. The record shows that the clerk stated that such a conference would be difficult to arrange and, in any event, it was not really necessary for she would provide appellant with whatever assistance he needed.

In addition to this advice, the Clerk, again in the presence of the Board, stated that appellant should pursue his request for a deferment by presenting only one claim at a time. That is to say, though appellant had three claims pending at the time of his personal appearance, he was told that they would deal only with his religious claim. If that claim was denied he should appeal, and if he lost, only then would they consider his other requests.

Appellant followed this procedure. Though he was engaged in anti-pollution efforts for ITT Rayonier, he desisted from any effort at establishing this occupational classification, until he learned whether or not his religious claim had been rejected by the Appeal Board. When the local board notified him that his appeal had been denied, however, they issued his order for induction the very same day. Appellant was thus precluded from ever fully establishing his other claims. At the induction station, he refused to take the symbolic step forward. He was convicted of violation of 50 App. U.S.C. § 462 and sentenced to five years imprisonment.

Appellant raises two main issues:

(1) Whether the misleading advice he received concerning the presentation of his three deferment claims constitutes grounds for reversal; and
(2) Whether the Board’s failure to set up an appointment with the Government Appeals Agent also constitutes reversible error.

Assuming a registrant has several possible deferment claims pending before his local board at the time of his personal appearance, he is not only entitled to have all these claims considered, but is entitled to supplement the record regarding each or any of these claims. The regulations clearly require that the Local Board is required to consider a registrant’s overall classification picture, and then place him in the lowest classification applicable to him. See 32 C.F.R. 1622.1(c), 1623.2. Indeed, the record includes a sample copy of a “Check Sheet for Appeals” used by many boards. The tenth question specifically asks whether the registrant was asked to submit evidence in support of all his claims.

The record also reveals that appellant fully intended to discuss all his possible classifications, including his II-A deferment. He testified that he intended to give his Board a full explanation of the anti-pollution research in which he was engaged, but that he made no effort to do so in light of the Clerk’s advice. Because he was inducted the same day his religious exemption appeal was denied, he simply never had the opportunity to adequately state his case.

In light of the requirements of the regulations and the emphasis this court has placed on the value of explaining one’s claims at the personal appearance, we find this to be reversible error. As this court has recently stated in Magaro v. Cassidy, 426 F.2d 137 (5th Cir., 1970), it is at the personal appearance that a registrant may:

“* * * discuss his classification, * * * point out the class or classes in which he thinks he should have been placed * * * direct attention to any information in his file which he believes the local board has over[58]*58looked or to which it has not given sufficient weight, and * * * present such further information as he believes will assist the board in determining his proper classification.” Knox v. United States, 200 F.2d 398, 399 (9th Cir. 1952), quoting former provisions of 32 C.F.R. § 1624.2(b).

In addition to the above, appellant was denied an appointment with the Government Appeals Agent. In the context of this case, we feel that this, too, constitutes reversible error.

Although there is no explicit statement in the regulations of a right to confer with the Government Agent, the regulations clearly state each Board must have such an agent and that he is to have the following duties:

“1604.71 Appointment and Duties.
(a) For each local board a government appeal agent shall be appointed by the President upon recommendation of the Governor.
(b) * * *
(c) Each government appeal agent and associate government appeal agent shall be, whenever possible, a person with legal training and experience.
(d) It shall be the duty of the government appeal agent and in his absence or inability to act or at his direction, the duty of the associate government appeal agent:
(1) To appeal, as prescribed by the regulations in this chapter, from any classification of a registrant by the local board which is brought to his attention and, in his opinion, should be reviewed by the appeal board.
(2) To attend such local board meetings as the local board may request him to attend.

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United States v. Ray Austin Bagley
436 F.2d 55 (Fifth Circuit, 1970)

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Bluebook (online)
436 F.2d 55, 1970 U.S. App. LEXIS 5757, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-ray-austin-bagley-ca5-1970.