Petrie v. United States, 21512.

• Decision Date: 12 February 1969
• Docket Number: No. 21512.,21512.
• Citation: 407 F.2d 267
• Parties: Clinton Roy PETRIE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

407 F.2d 267 (1969)

Clinton Roy PETRIE, Appellant, v. UNITED STATES of America, Appellee.

No. 21512.

United States Court of Appeals Ninth Circuit. In Banc.

February 12, 1969.

J. B. Tietz (argued), Los Angeles, Cal., for appellant.

Craig B. Jorgensen (argued), Asst. U. S. Atty., Matthew Byrne, Jr., U. S. Atty., Robert L. Brosio, Asst. U. S. Atty., Crim. Div., Los Angeles, Cal., for appellee.

Before CHAMBERS, BARNES, HAMLEY, MERRILL, KOELSCH, BROWNING, DUNIWAY, ELY, CARTER and HUFSTEDLER, Circuit Judges.

ELY, Circuit Judge:

Appellant Petrie was convicted in the District Court for violation of the Universal Military Training and Service Act, 50 U.S.C. App. § 462. He appeals, invoking the jurisdiction conferred upon us by 28 U.S.C. §§ 1291, 1294.

On October 31, 1960, Petrie registered with Local Board No. 82, North Hollywood, California. On July 16, 1963, the local board received from him a Classification Questionnaire (SSS Form No. 100). In his answers to this questionnaire, Petrie claimed to be a conscientious objector and to have been a minister of Jehovah's Witnesses since June 1954. He did not list any dependents but did indicate that he had been employed for one month as an aircraft landing field employee.

On August 5, 1963, the local board received from Petrie a completed Special Form for Conscientious Objector (SSS Form No. 150), wherein Petrie again claimed to be a conscientious objector. On November 6, 1963, however, the local board classified Petrie as available for military service (class I-A). Petrie promptly appealed this classification, and ultimately, on June 24, 1965, the appeal board classified him as a conscientious objector available for civilian work contributing to the maintenance of the national health, safety, or interest (class I-O).

During the period when his administrative appeal was pending, Petrie supplied the local board with a substantial amount of additional information relating to his classification status. Following his receipt of an order to report for an armed services physical examination, Petrie, on December 29, 1964, mailed a letter to the local board informing it that his father had been killed in a plane crash on December 10, 1964. He further informed the board that his father had left over a quarter of a million dollars in debts, that he was then the only means of support for his mother, and that he was attempting to obtain a commercial pilot's license, which he expected to receive in three or four weeks. On the basis of these facts, Petrie requested a reclassification of his draft status. In response, the local board notified Petrie that it was in receipt of the information and that it warranted "reconsideration" of his selective service status. Soon thereafter, however, the board informed Petrie that no decision would be made upon his request until the appeal board had decided the outcome of his pending appeal concerning his claim to be a conscientious objector.

On January 22, 1965, Petrie again wrote the local board, requesting a III-A classification due to hardship. He stated not only that he supported his mother, but also that he contributed to the support of his grandmother. He also stated that he was at that time preparing to obtain a flight instructor's rating. The local board notified Petrie that no action would be taken on his request for a hardship classification until his earlier appeal had been resolved.

On February 2, 1965, the local board received a letter from Valley Pilots Flying Service explaining that Petrie was at that time taking "extensive training * * * in preparation for his commercial and instructor's ratings." On March 10, 1965, Valley Pilots Flying Service further informed the board that it was expected that Petrie would complete the course for a flight instructor's license by May 9, 1965. On May 3, 1965, Petrie reported for his armed services physical examination and was found acceptable.

As indicated previously, on June 24, 1965, Petrie was placed in class I-O by the appeal board. Thereafter, the local board requested that Petrie complete and return a Dependency Questionnaire (SSS Form No. 118). This form, received by the board on July 6, 1965, revealed that Petrie was then employed as a flight instructor and was earning $140.00 per week. Petrie listed his mother as being wholly or partially dependent upon him for support and stated that he contributed $450.00 per month for her support.¹ On July 12, 1965, the board notified Petrie that "the facts presented do not warrant the reopening or reclassification of your case at this time."

Following this decision, the board received a letter from an attorney whom Petrie had employed. The letter stated that Petrie would soon thereafter file new materials in support of his claims and would make a formal request for reopening of his classification. On August 2, 1965, another letter from the attorney arrived, accompanied by several letters and other documents. In one letter, Petrie's mother expanded upon the previous information which he had supplied in regard to the fact that his mother and grandmother were dependent upon him. The mother explained, among other things, that the insurance money received following her husband's death had been used to pay off a number of expenses and debts and to finance Petrie's flight education. Petrie's mother also stated that she was earning about sixty dollars per month as a voice teacher and that Petrie's grandmother was living with her. Other letters accompanying the attorney's cover letter revealed that there were no assets in Petrie's father's estate, that Petrie had been employed by the Valley Pilots Flying Service as a full-time flight instructor since April 1, 1965, and that Petrie was currently completing a course of instruction leading to a rating for helicopter instruction.

On October 27, 1965, the board received two additional letters from the Valley Pilots Flying Service. These letters recited that Petrie was employed by Valley Pilots as a flight instructor and that his services were extremely valuable to that organization.² On November 3, 1965, Petrie met with the local board and submitted thirty additional letters written in support of his deferment claims by persons acquainted with him and his family. Additionally, on that date letters were received from Petrie, his mother, and Valley Pilots Flying Service. Following a meeting with Petrie, however, the local board determined that his classification was proper, and on November 4, 1966, the board notified Petrie and the other interested parties that the board was of the opinion "that the facts presented do not warrant the reopening of the registrant's classification."

The foregoing recitation embraces all the facts which are necessary to an understanding of the disposition to be made on this appeal. Other facts are set forth in the margin.³

Petrie contends that the District Court erred in denying his Motion for Judgment of Acquittal.

It is appropriate first to dispose of the contention that "the appeal board improperly classified appellant I-O in June, 1965, because the local board failed to notify * * * the appeal board of the intervening facts that removed appellant from consideration for Class I-O and entitled him to classification in Class III-A." Since the appeal board would have been precluded from considering any such additional information outside the record forwarded to it at the time of the appeal, this contention is devoid of merit. 32 C.F.R. §§ 1626.14, 1626.24(b).

Petrie also contends that he was denied due process of law in that the board refused to reopen his classification after a "de facto reopening" had occurred on December 31, 1964. This contention is based upon the fact that on that date, following Petrie's notification to the board of his father's death, a clerk of the board had sent Petrie a form letter stating in part that "we are in receipt of information which warrants reconsideration of your Selective Service status by this Local Board * * *."⁴ As noted previously, soon after this letter was sent, the board had again written Petrie, stating that the board had considered his request and had determined that "no decision will be made on your request until your appeal has been resolved on your conscientious objection claim * * *." In view of these facts, it is manifest that no reopening, "de facto" or otherwise, of Petrie's classification occurred during this period of time. See 32 C.F.R. §§ 1625.4, 1625:11-13. The mere use of the word "reconsideration" in the letter from the local board cannot change this conclusion, particularly where, as here, there was no reliance, to his detriment, on Petrie's part. We turn, therefore, to Petrie's contention that, assuming the truth of the facts presented to the local board, the decision not to reopen his classification was improper.

The applicable Selective Service Regulations provide as follows:

"The local board may reopen and consider anew the classification of a registrant (a) upon the written request of the registrant, the government appeal agent, any person who claims to be a dependent of the registrant, or any person who has on file a written request for the current deferment of the registrant in a case involving occupational deferment, if such request is accompanied by written information presenting facts not considered when the registrant was classified, which, if true, would justify a change in the registrant\'s classification * * *."

32 C.F.R. § 1625.2.

"When a registrant, any person who claims to be a dependent of a registrant, any person who has on file a written request for the current deferment of the registrant in a case involving occupational deferment, or the government appeal agent files with the local board a written request to reopen and consider anew the registrant\'s classification and the local board is of the opinion that the information accompanying such request fails to present any facts in

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