Schmitt v. United States, 25882.

• Decision Date: 14 July 1969
• Docket Number: No. 25882.,25882.
• Citation: 413 F.2d 219
• Parties: Michael Allen SCHMITT, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

413 F.2d 219 (1969)

Michael Allen SCHMITT, Appellant, v. UNITED STATES of America, Appellee.

No. 25882.

United States Court of Appeals Fifth Circuit.

June 11, 1969.

Rehearing Denied July 14, 1969.

George T. Kelly, III, Cocoa Beach, Fla., for appellant.

Thomas G. Wilson, Asst. U. S. Atty., Tampa, Fla., Edward F. Boardman, U. S. Atty., Middle District of Florida, for appellee.

Before WISDOM, THORNBERRY and GOLDBERG, Circuit Judges.

GOLDBERG, Circuit Judge:

This is another selective service case. Michael Allen Schmitt seeks deliverance from his conviction for willfull failure to submit to induction into the Armed Forces of the United States. 50 U.S. C.A. App. § 462.

On October 23, 1963, appellant Schmitt enlisted in the Army National Guard Unit at Cocoa, Florida. He served six months of active duty, attended summer camp for two years, and attended drills for a period of approximately three and one-half years.

During May of 1965, Schmitt acquired four unexcused absences from meetings of the National Guard. The absences were all attributable to Schmitt's failure to attend one weekend drill which consisted of four separate drill sessions. Schmitt was recommended for a court martial, but after further inquiry the charges were dropped and the absences forgiven in the hope that Schmitt would reform and continue his soldiering in a more assiduous manner.

In February of 1966 Schmitt missed a weekend trip to Camp Blanding, Florida, and was again carried on the Guard's rolls as having missed four drills. As a result Schmitt was once again recommended for a court martial. Since both the February absence and the May absence of the previous year were, allegedly, the result of a conflict between weekend drills and defendant's job delivering newspapers, Schmitt now bestirred himself and on March 4, 1966 requested a discharge or transfer due to an incompatible occupation. 32 U.S.C.A. App. § 1101.18. This application was denied by the National Guard after consideration at various levels.

Schmitt then acquired unexcused absences on April 2 and 3, 1966, and on May 14 and 15, 1966. He apparently had permission to make up these absences, but neglected to do so within the required thirty days. There is some uncertainty in the record on this point as defendant claims he was sometimes not credited with make-up work properly performed within the required period.

Following these absences Schmitt was certified by the National Guard as having performed unsatisfactorily. This certification was sent to Schmitt's local draft board on DD Form 44 and the board thereafter ordered him to report for priority induction pursuant to 32 C.F.R. § 1631.8. This regulation, authorized by 50 U.S.C.A. App. § 456(c) (2) (D), instructs local draft boards that members of a reserve unit whose performance has been certified as unsatisfactory "shall be ordered to report for induction by the local board regardless of the class in which he is classified and without changing his classification." Acting in accordance with this directive, Local Board 35 ordered Schmitt to report for priority induction on June 13, 1966.

Schmitt states that the certification of unsatisfactory performance which generated his induction order was caused by the fact that he stood up for his rights in the preliminary stages of court martial proceedings then pending against him. He had at the time retained a lawyer to defend him in those proceedings. He alleges that shortly after his lawyer obtained affidavits from two of his superiors at the newspaper substantiating his claim of a conflict between his job and the National Guard meetings, the certification of unsatisfactory performance was mailed to his draft board. Schmitt thereby implies some kind of ulterior motive on the part of the National Guard in certifying his performance as unsatisfactory.

On June 13, 1966, Schmitt reported to the induction station as ordered and proceeded through the normal procedures, passing all tests. In the ceremony room, however, he refused to take the step forward which symbolized entrance into the Armed Services. He based his refusal on the grounds that his induction was improper and that he was awaiting word from his attorney who was seeking a writ of habeas corpus. The officer in charge of the swearing in advised Schmitt of the consequences of his refusal and again asked him if he would submit to induction. He refused.

At this point, Schmitt was turned over to the Commanding Officer of the induction station. The Officer read Schmitt the regulations which explained the consequences of his refusal to submit to induction, and offered him another opportunity to accept. Schmitt again refused, explaining to the Officer that his attorney in Jacksonville was attempting to procure a writ of habeas corpus. The Commanding Officer, after consultation with his superiors, then gave Schmitt approximately two hours in which to contact his attorney. When no developments occurred during that time, Schmitt was given yet one more opportunity to submit to induction, and after his refusal, he was sent home.

On this appeal Schmitt argues that even if his conduct as a guardsman was militarily lackadaisical, he was still a member of the Armed Forces on his induction date and therefore not assimilable through the Selective Service System. He tries to propound this riddle: how can one who is already in the Armed Forces be subject to the draft and be tried for refusal of induction? Schmitt suggests that the only proper way to induct a recalcitrant guardsman is first to discharge him from the National Guard and then to induct him from his civilian status.

Schmitt misconceives the status and obligations of a guardsman under the Universal Military Training and Service Act.¹ The Act stipulates in part that "Except as otherwise provided in this title * * * every male citizen of the United States * * * who is between the ages of 18 years and 6 months and 26 years * * * shall be liable for training and service in the Armed Forces of the United States." Emphasis added. 50 U.S.C.A. App. § 454. The term "Armed Forces" is defined in 50 U.S.C.A. App. § 466(c) of the Act to include "the Army, the Navy, the Marine Corps, the Air Force, and the Coast Guard." The Army National Guard is not included in the term "Armed Forces" as used in the Act;² consequently up until 1963 persons who enlisted in the National Guard between the ages of 18½ and 26 were not immune from induction under the Universal Military Training and Service Act. See 1963 U. S.Code Cong. and Adm.News, p. 845. In 1963, however, Congress enacted Public Law 88-110, 77 Stat. 134,³ which amended 50 U.S.C.A. App. § 456(c) (2) to permit the deferment⁴ of a member of the National Guard "so long as he performs satisfactorily. * * *" 50 U.S.C.A. App. § 456(c) (2) (A) (iii). In order to emphasize that the deferment remained in force only so long as the guardsman conscientiously fulfilled his obligations, Congress enacted a penalty provision which provided for the priority induction of any guardsman whose performance was certified by the National Guard as unsatisfactory. 50 U.S.C.A. App. § 456(c) (2) (D)⁵ and 32 C.F.R. § 1631.8.⁶ Neither the penalty provision itself, nor its legislative history indicates that a guardsman must be discharged before priority induction may be invoked. See 1966, U.S.Cong. and Adm.News, pp. 147-148 and 844-850. In fact, a regulation of the National Guard clearly dictates to the contrary. The regulation provides that a delinquent guardsman may not be discharged pending certification to his local draft board:

"(1) Individuals in the Army National Guard with a remaining service obligation under the Universal Military Training and Service Act, as amended, who cannot participate with the unit for the reasons shown below will not be discharged from the Army National Guard but will be transferred to the Inactive National Guard for the remainder of their enlistment.

(i) Continuous and wilful absence from military duty.

* * * * * *

"(2) The removal of the above individuals from an active Army National Guard status will be reported to the local board on DD Form 44 (Military Status of Individual)."⁷

In addition to this regulation, a number of cases have indicated on their facts that a formal discharge from a reserve component is not a precondition to priority induction. Cf. In re McBee, S.D. Calif.1968, 287 F.Supp. 926, 927; Mader v. Clifford, No. 48,612 (N.D.Calif. July 26, 1968), 1 SSLR 3185. Other cases in this same area indicate by their silence on the discharge issue that formal severance from a reserve component is not a prerequisite to the priority induction procedure. Cf. United States v. Lonstein, 2 Cir. 1966, 370 F.2d 318, 319; United States v. Smith, D.Mont.1967; 266 F.Supp. 309, 309-310. In fact, discharge could accomplish no useful purpose not also achieved by certification.

The certification procedure advises the local board that the guardsman's services are no longer desired and no longer satisfactory. This procedure proclaims that he has breached the conditions of his deferment and is once more at the disposal of the Selective Service System. Such a procedure does not depend in any way upon an express discharge from a reserve component. A guardsman or reservist is not a player of now you are in and now you are out, nor do the relevant statutes prescribe a game of occupational shuttlecock with military life at one terminus and civilian life at the other. All that Congress intended by 50 U.S.C.A. App. § 456(c) (2) (D) was to foreclose the use of the National Guard and other reserve programs as escapist havens for ex parte soldiering. This Congressional purpose was accomplished by the simple expedient of granting conditional deferments to those in reserve components. Once such a deferment is lost, the guardsman or reservist in question, with or without a discharge, is once more a part of the Selective Service manpower pool. From that moment...