Edwards v. United States
Decision Date | 21 June 1968 |
Docket Number | No. 21879.,21879. |
Citation | 395 F.2d 453 |
Parties | James Donald EDWARDS, Appellant, v. UNITED STATES of America, Appellee. |
Court | U.S. Court of Appeals — Ninth Circuit |
J. B. Tietz (argued), Michael Hannon, Los Angeles, Cal., for appellant.
Eric C. Nobles, (argued), Asst. U. S. Atty., Robert M. Talcott, Asst. U. S. Atty., William M. Byrne, Jr., U. S. Atty., Robert L. Brosio, Asst. U. S. Atty., Chief, Criminal Division, Los Angeles, Cal., for appellee.
Before BARNES and ELY, Circuit Judges, and FOLEY, District Judge.*
On February 13, 1967, appellant Edwards was found guilty of having refused induction into the armed services in violation of section 12 of the Universal Military Training and Service Act, 50 U.S.C. App. § 462. He was thereafter sentenced to the custody of the Attorney General for a period of three years. This appeal followed. Our jurisdiction rests upon 28 U.S.C. §§ 1291, 1294.
On January 16, 1963, Edwards registered with Local Board No. 115, and on April 8, 1964, the local board received a completed Classification Questionnaire (SSS Form No. 100) from him. In this questionnaire Edwards claimed to be a conscientious objector and requested a Special Form for Conscientious Objector (SSS Form No. 150). Subsequently the local board also received a completed copy of this special form, wherein Edwards again claimed to be a conscientious objector. On June 8, 1964, however, the local board placed Edwards in Class I-A. On the following day, notice of this classification was mailed to Edwards. No appeal was taken from the classification.
On May 20, 1965, Edwards was ordered to report for a physical examination on June 11, 1965, and on that date he reported and was found acceptable. Four days later, on June 15, 1965, he notified the local board that his name had been changed by court order from James Donald Humphreys to James Donald Edwards. At that time he also requested a new Notice of Classification (SSS Form No. 110) to replace the one which he had received earlier, and he supplied the local board with a Current Information Questionnaire (SSS Form No. 127), which disclosed that he had been married three days earlier.
On October 25, 1965, the board again classified Edwards as I-A, and on October 29, 1965, a notice of this action was mailed to him. No attempt was made to appeal this second classification action. On December 23, 1965, Edwards was ordered to report for induction on January 11, 1966. On that date he reported to the induction center and completed various steps preliminary to induction; however, he refused to be inducted.
Edwards' principal contention is that the local board's denial of a conscientious objector classification (class I-O) was without basis in fact and was therefore contrary to law. See Dickinson v. United States, 346 U.S. 389, 74 S.Ct. 152, 98 L.Ed. 132 (1953). We do not reach this issue. It is well settled that a registrant may not challenge his classification in the courts where, absent exceptional circumstances, he has failed to exhaust his administrative remedies by appealing from the local board's classification, as authorized by 32 C.F.R. § 1626.2. Prohoroff v. United States, 259 F.2d 694 (9th Cir. 1958), cert. denied, 359 U.S. 907, 79 S.Ct. 583, 3 L.Ed.2d 572 (1959); Evans v. United States, 252 F.2d 509 (9th Cir. 1958); accord, e. g., Thompson v. United States, 380 F.2d 86 (10th Cir. 1967). As indicated above, Edwards did not attempt to appeal from either classification decision made by his local board. It clearly appears that he was aware of his right to appeal.1 His direct testimony at the trial includes the following:
Clearly, these reasons2 present no exceptional circumstances excusing Edwards' failure to appeal. We are precluded, therefore, from reviewing the classification.
Edwards' second contention is based upon his vague assertions that there is "at the least doubt as to whether he was administratively processed by the right board members." Our review of the record convinces us that appellant's contention in this regard is totally devoid of merit.
Lastly, it is argued "that the induction ceremony was contrary to law and prejudicial to appellant." The appellant's selective service file, introduced into evidence by the Government, contains a letter to the United States Attorney written on behalf of the Commander of the Induction Center. The letter describes the manner in which Edwards had been prccessed and had refused to be inducted.3 This commonly used form letter, which is printed with blanks for the appropriate names, dates, etc., states, in effect, that the individual concerned was processed in conformity with Army Regulation 601-270, the regulation prescribing the proper procedure for induction processing. Edwards testified, however, that he was not processed in exactly the same manner as that stated in the form letter.4 According to his testimony, the principal difference, in essence, was that, after he had indicated he would refuse induction, he was removed from the group about to be inducted and that he was given the prescribed two opportunities for induction in a separate room.5 Assuming, arguendo, that such was the fact, it is nevertheless clear that Edwards was not prejudiced thereby. See Bradley v. United States, 218 F.2d 657, 660-661 (9th Cir. 1954), rev'd on other grounds, 348 U.S. 967, 75 S.Ct. 532, 99 L.Ed. 754 (1955). The essential requirements of the induction process were properly met. Compare Chernekoff v. United States, 219 F.2d 721, 724-725 (9th Cir. 1955). Where such is the case and where it is clear that the individual intended to, and did, refuse to submit to induction, it is no defense that minor departures from the ordinary induction procedure occurred. Cf. United States v. Spiro, 384 F.2d 159 (3d Cir. 1967), cert. denied, 390 U.S. 956, 88 S.Ct. 1028, 19 L.Ed.2d 1151 (1968); United States ex rel. Lipsitz v. Perez, 372 F.2d 468 (4th Cir.), cert. denied, 389 U.S. 838, 88 S.Ct. 57, 19 L.Ed.2d 100 (1967); United States v. Lawson, 337 F.2d 800, 812 (3d Cir. 1964), cert. denied, 380 U.S. 919, 85 S.Ct. 913, 13 L.Ed.2d 84 (1965); Yaich v. United States, 283 F.2d 613, 619-620 (9th Cir. 1960).
Affirmed.
* Honorable Roger D. Foley, Chief United States District Judge for the District of Nevada, sitting by designation.
1 There is some indication in the record that Edwards did not believe that he had a right to appeal from the second classification, since the card sent to him appeared to be a duplicate of his earlier one with only a change in the name. He testified that he received the card in October 1965, This card was not received into evidence. Appellant admits in his closing brief that the Government "correctly" states that "on October 25, 1965, defendant was again classified I-A by the Board * * *." As noted previously, Edwards made no attempt to appeal from this second classification.
2 The ministerial classification which Edwards desired (class IV-D) would have exempted him both from military service and from any civilian work assignment. He was apparently not interested in appealing in order to obtain the conscientious objector classification (class I-O) that he here claims should have been granted him, since the record indicates that he would not have accepted the civilian work assignment required for persons so classified. See 32 C.F.R. § 1660.20. The record contains no indication that Edwards ever attempted to obtain a IV-D classification from the board.
3 This letter, in part, recites:
"All registrants who have been determined to be fully qualified for induction in all respects were assembled. The Induction Officer informed them of the imminence of induction, quoting the following:
.
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