United States v. Abernathy, Crim. A. No. 71-CR-148.

• Decision Date: 07 December 1971
• Docket Number: Crim. A. No. 71-CR-148.
• Parties: UNITED STATES of America, Plaintiff, v. Thomas Dee ABERNATHY, Defendant.
• Court: U.S. District Court — District of Colorado

334 F. Supp. 1201

UNITED STATES of America, Plaintiff, v. Thomas Dee ABERNATHY, Defendant.

Crim. A. No. 71-CR-148.

United States District Court, D. Colorado.

December 7, 1971.

Gordon L. Allott, Jr., Asst. U. S. Atty., Denver, Colo., for plaintiff.

Elmer Lee Hamby, Denver, Colo., for defendant.

FINDINGS OF FACT AND ORDER

CHILSON, District Judge.

Defendant was charged with a violation of 50 U.S.C. App. § 462(a), failure to submit to induction into the Armed Forces of the United States. Trial was to the Court without a jury.

Briefs in support of and in opposition to a motion for acquittal have been received. The issue discussed by these briefs is whether a delay in excess of six months between the issuance of an order for the defendant's induction into the Armed Forces and the fixing of the date and place at which defendant was to appear for such induction had the effect of cancelling or invalidating the order for induction.

The pertinent facts contained in defendant's Selective Service file (Exhibit 1) are as follows: Defendant was classified 2-S until February 20, 1969, when defendant's Local Board No. 236 in Missouri, learned he had withdrawn from school. On March 13, 1969, an order was issued requiring defendant to report for a physical examination on April 21, 1969.

Defendant requested that the physical examination be transferred to Breckenridge, Colorado. The request was granted March 20, 1969. Subsequently, defendant transferred his physical examination back to his Local Board in Missouri.

Upon examination, defendant was found acceptable and was so notified on April 30, 1969.

On July 15, 1969, the original order to submit for induction was sent to the defendant and ordered him to report for induction in St. Louis, Missouri on August 8, 1969. On July 21, 1969, defendant requested a transfer of induction to Breckenridge, Colorado. Approval of this request was made by defendant's Local Board in Missouri on July 25, 1969.

The order for induction dated July 15, 1969, is composed of two parts, first, an order for induction into the Armed Forces and second, an order fixing the time and place to report for such induction. The order of July 15, 1969, is the only order entered by the Board ordering the defendant's induction into the Armed Forces. The time and place fixed for defendant to report for the induction was changed by approval of the defendant's request for a transfer of his induction to Breckenridge, Colorado.

The authority for the approval of such transfer and the change of date for a registrant to report in case of a transfer is regulated by 32 C.F.R. § 1632.9(g) which states:

"When the local board to which the registrant has been transferred for induction receives the papers from the registrant's own local board, as provided in paragraph (f) of this section, it shall proceed to deliver him for induction as soon as practicable after the date fixed for him to report for induction in the Order to Report for Induction (SSS Form 252) issued by his local board. Whenever possible, the local board of transfer shall deliver the transferred registrant for induction with its next induction call, but if there be no such call within 30 days after the local board of transfer receives the papers from the registrant's own local board, it shall deliver the transferred registrant specially. When the transferred registrant is to be delivered specially, the local board of transfer shall request its State Director of Selective Service to make the necessary arrangement to deliver the transferred registrant specially at the earliest possible date. The local board to which the registrant has been transferred for induction shall prepare an order for transferred man to report for induction (SSS Form 253) in duplicate, mail the original to the transferred registrant and file the copy. The

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