United States v. Aufdenspring, 25811.

• Decision Date: 11 March 1971
• Docket Number: No. 25811.,25811.
• Citation: 439 F.2d 388
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gary Lee AUFDENSPRING, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

439 F.2d 388 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Gary Lee AUFDENSPRING, Defendant-Appellant.

No. 25811.

United States Court of Appeals, Ninth Circuit.

March 11, 1971.

Neil F. Horton (argued), Johnston, Klein & Horton, Oakland, Cal., for appellant.

Alan H. Friedman, Asst. U. S. Atty. (argued), Robert L. Meyer, U. S. Atty., David R. Nissen, Chief, Crim. Div., Richard H. Kirschner, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before CHAMBERS, JERTBERG and MERRILL, Circuit Judges.

PER CURIAM:

Appellant was convicted of refusing to submit to induction into the Armed Forces of the United States, in violation of 50 U.S.C. App. § 462.

Appellant was classified I-A by his local board on July 22, 1964, and so notified. On October 24, 1966, he was ordered to report for induction on November 22, 1966. He did report but his induction was held in abeyance pending determination of his acceptability.

On November 25, 1966, appellant requested the local board to send him a conscientious objector form (SSS Form 150). On December 5, 1966, he returned the completed form to his local board.

On April 5, 1967, the Department of the Army informed the National Director of Selective Service that a neuropsychiatric evaluation would be required before a final determination could be made on appellant's acceptability for induction into the Armed Forces. The California Headquarters of Selective Service notified appellant's local board of this development, and requested the board to forward to the California Headquarters the appellant's complete file after the re-examination. The local board informed appellant that his induction had not been completed "pending clearance of your record" and that it would notify him after his records "have been cleared." Subsequently the local board directed appellant to report to the Armed Forces examining station on May 22, 1967, for further processing.

On June 26, 1967, the California Headquarters wrote the local board requesting the board to return the file if the re-examination had been completed. The local board responded that the Armed Forces examining station had forwarded appellant's papers to Army Headquarters in Hampton, Virginia, for evaluation, and stating that the Armed Forces could not give any estimate of the time this processing would take. The local board was holding appellant's file as "held in abeyance."

On August 16, 1967, the Armed Forces notified the local board that the appellant was now qualified for induction.

The local board, on August 22, 1967, notified the appellant of the receipt of such information and stated that in the near future appellant would receive notice from the board instructing him of the date and time he was to report for induction.

Under date of August 23, 1967, appellant acknowledged receipt of the board's letter of August 22, 1967, called the board's attention to the filing by him of the Conscientious Objector form on December 5, 1966, and closed his letter by stating:

"Therefore, I think it only fair that I have the chance to meet with you and go over this in some detail. I have never once had the opportunity to talk to you."

Under date of September 12, 1967, the local board, pursuant to the request of June 26, 1967 therefor, forwarded appellant's Selective Service file to California Headquarters.

On September 29, 1967, the California Headquarters returned appellant's file "for further processing at this time" and stated:

"We note the armed forces induction station has determined the registrant is now qualified for induction, effective August 16, 1967.

"In view of the above, a new reporting date under the induction order issued on October 24, 1966, should now be issued, unless the local board determines a basis for deferment has now been established. If the local board determines not to defer the registrant then it should at least review the information submitted by him subsequent to the issuance of his induction order and advise him on C Form 140 that reopening of his classification is not warranted on the facts."

Under date of October 23, 1967, the local board wrote to appellant on a Form C-140 letter which reads as follows:

"Re: Conscientious Objector Status "Dear Sir:

"This will acknowledge receipt of your communication relative to your Selective Service status. The information contained therein has been considered by this board and it is of the opinion that the facts presented do not warrant the reopening or reclassification of your case at this time."

A note at the end of the letter also notified appellant that the board had denied his request for an interview.

On October 31, 1967, the local board sent appellant a letter ordering him to report for induction on November 28, 1967. The letter further stated:

"On October 24, 1966, this local board mailed you an Order to report for Induction (SSS Form 252) on November 22, 1966. You are still under that original order.

"Pursuant to the Induction Station\'s direction your actual induction was not completed pending further clearance of your records.

"You are now found to be acceptable for service in the Armed Forces and are directed to report * * * on November 28, 1967, at 6:00 A.M., Promptly, for completion of your induction."

On November 8, 1967, the local board received from appellant ...