Sheridan v. United States
| Decision Date | 10 August 1973 |
| Docket Number | No. 72-1725.,72-1725. |
| Citation | 483 F.2d 169 |
| Parties | Gerald Robert SHERIDAN, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
John S. Connolly, St. Paul, Minn., for appellant.
John F. Lee, Asst. U. S. Atty., Minneapolis, Minn., for appellee.
Before GIBSON, LAY and STEPHENSON, Circuit Judges.
Certiorari Denied December 3, 1973. See 94 S.Ct. 594.
In a trial to the court1 without a jury Gerald Robert Sheridan was convicted of failure to report for and submit to induction into the Armed Forces of the United States in violation of Title 50 U. S.C. App. § 462. He received a two-year sentence, with 18 months thereof suspended. A timely appeal followed.
Sheridan registered with Local Board No. 105 in Duluth, Minnesota, on March 28, 1969, and received a I-S-H classification at that time as he was still in high school. On June 21, 1969, he was classified I-A and was sent the usual notice of classification and notice of his right to a personal appearance and appeal. He took no appeal at that time. On June 30, 1969, he submitted a current information questionnaire in which he indicated that he would be at Creighton University, Omaha, Nebraska for the fall 1969 school year. On July 23, 1969, he wrote to the board and indicated that he did not believe that his I-A classification was correct, that he was entitled to a student deferment. He requested a personal appearance, "unless this can be cleared up through the mail." The local board sent him SS Form 104, which is used to request a student deferment, requested him to submit it to the board "when he became a full-time student," and told him that the college should forward SS Form 109. Neither of these forms was returned to the board.
However, on October 13, 1969, the board received a card from Creighton University, signed by Sheridan, advising the board that Sheridan was enrolled as a full-time student and that he might expect to graduate in June 1973. His file remained dormant for one year. In October 1970, he was ordered to and did report for a physical examination. He was found medically acceptable for induction. On November 30, 1970, the board received a student certificate from the college of St. Scholastica, Duluth, Minnesota. Sheridan also filed at that time the SS Form 104 seeking a student deferment. In the form he indicated that he was asked not to return to Creighton because of his poor scholastic performance and that he had earned only nine credits toward his ultimate graduation during the preceding year; 180 credits were required for graduation in the program he was taking.
On December 21, 1970, the board advised Sheridan that it had reviewed his file and determined that there was no justification for changing his classification from I-A. On January 28, 1971, he was ordered for induction.2 This induction date was postponed until March 30, 1971, at which time he refused induction.
Sheridan contends that he was denied due process in the board's refusal to grant him a student deferment in December 1970.
The statutory authority for the granting of student deferments during the period at issue is set forth in Title 50 U. S.C. App. § 456(h)(1).3 Pursuant to the authority and mandate of this section the Selective Service adopted, and had in effect during the period of time when Sheridan's request for deferment was considered, a regulation pertaining to student deferments. 32 C.F.R. § 1622.25.4
It is the responsibility of the registrant to request a student deferment, 32 C.F.R. § 1622.25(a), and to submit evidence that he is entitled to such a deferment. 32 C.F.R. § 1622.25(d); United States v. Wilbur, 427 F. 2d 947, 949 (9th Cir.), cert. denied, 400 U.S. 945, 91 S.Ct. 250, 27 L.Ed.2d 250 (1970). We need not decide, however, whether the unofficial notification by the college, even though signed by Sheridan, was sufficient to request the student deferment as the District Court held that, even if the reclassification were required at the time the local board received the card in 1969, the board's failure to reclassify in 1969 furnished no defense to the offense charged.5
The District Court thus, in effect, treated Sheridan as having a de facto II-S classification for the 1969 school year, which classification was subsequently lost by his poor scholastic performance. The question we here consider is whether or not the board's failure to classify Sheridan II-S in 1969 could furnish him a defense to the 1971 induction order and subsequent prosecution. The actual effect of the board's failure to properly classify Sheridan in 1969 was that the board did not have to reclassify him I-A in 1970 when he was no longer eligible for the student deferment. This had the effect of denying Sheridan a personal appearance and an appeal from the reclassification.
It is clear that Sheridan was not entitled to a student deferment at the time he applied for it in December 1970. The statute provided for a deferment only for those students who were then "satisfactorily pursuing a full-time course of instruction." 50 U.S.C. App. § 546(h)(1). The regulation previously quoted provides that in order to be satisfactorily pursuing a course of study the student must have completed a proportional number of credits during the prior 12-month period (academic year) to complete his degree within the normal period of time. Normally, for a four-year program, a registrant would be expected to earn 25 per cent of his credits during the first year; Sheridan had earned only 5 per cent.
Even though we assume that the board improperly failed to grant Sheridan a deferment during his first year of college (as was argued at the trial) based only on the card which Creighton University sent to the board, he was not entitled to have the deferment continued during his second year as his "pursuit" was no longer satisfactory. This Court has previously determined that procedural errors which do not result in "substantial prejudice" are no defense to an otherwise lawful induction order. United States v. Chaudron, 425 F.2d 605, 608 (8th Cir.), cert. denied, 400 U.S. 852, 91 S.Ct. 93, 27 L.Ed.2d 89 (1970). Like the trial court, we cannot see how the board's failure to classify Sheridan II-S for the 1969-70 school year could have resulted in prejudice. He was not ordered for induction during the academic year for which such a deferment would have been effective. During the year of his induction he applied for the deferment and his application was considered by the board. Had he possessed, during the prior school year, a student deferment, he would have lost it for failure to satisfactorily pursue his course of instruction. United States v. Rundle, 413 F.2d 329 (8th Cir. 1969),6 the only authority cited by Sheridan, is distinguishable from the instant case. That opinion shows that Rundle's selective service file reflected a series of changes in classification from I-A to II-S and back throughout Rundle's academic career, apparently due to Rundle's failure to pay his college fees when due. At the time the induction notice was sent, May 5, 1967, Rundle was classified I-A. Immediately thereafter the board received a notice from the college that he was a full-time student. Rundle refused induction and was prosecuted and convicted of the draft offense, based on the May 5, 1967 order for induction.
A majority in Rundle viewed its facts as presenting a mandatory reopening situation and, since a reopening would have automatically required the cancellation of the induction order upon which the prosecution was based, 32 C. F.R. § 1625.14, found prejudice. In the instant case no mandatory reopening situation existed that would have required the cancellation of any outstanding orders for induction pursuant to the regulations. 32 C.F.R. § 1625.14. Here, the registrant did not present facts concerning his satisfactory pursuit of his course of instruction that would have justified a change in the registrant's classification. 32 C.F.R. § 1625.2. The board, therefore, properly refused to reopen the registrant's classification. 32 C.F.R. § 1625.4.
The cases discussed by the dissent present factual situations where the registrant presented a prima facie entitlement to the board. We do not view these as analogous to the instant case because of the undisputed evidence in this case that the defendant was no longer entitled to the deferment. In Mulloy v. United States, 398 U.S. 410, 90 S.Ct. 1766, 26 L.Ed.2d 362 (1970), the leading case where the defendant had made a prima facie showing but was denied a reopening by the board, the Court recognized that the classification need not be reopened if the truth of the new allegations, establishing the prima facie case, was "conclusively refuted by other reliable information in the registrant's file." Mulloy v. United States, supra at 416, 90 S.Ct. at 1771. Here no prima facie case was made. No refutation was even required. The registrant's own application on its face shows he did not qualify for a II-S for the 1970 school year. Under these circumstances the registrant would not be entitled to the procedural rights of a personal appearance and an appeal.
Many of the other cases cited in the dissent involved the situation present in United States v. Pickett, 460 F.2d 1255 (8th Cir. 1972). In those cases, all occurring after the Selective Service had ceased to defer graduate students, the registrants had received notices of induction while enrolled in school. The courts held that they were entitled to a I-S deferment until the end of the school year as provided by statute. The boards, however, only postponed their induction until the end of the school year. First, the prima facie showing that they were entitled to a deferment was sufficient to trigger the requirement that their files be reopened, and thus have all outstanding orders of induction...
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...policies “did not care who was drafted as long as enough people were drafted”).Indeed, the Court's reliance on Sheridan v. United States, 483 F.2d 169 (8th Cir.1973), highlights this difference. In Sheridan, the defendant registered for the draft but did not lawfully opt out. Instead, he si......