United States v. Bagley
| Citation | 436 F.2d 55 |
| Decision Date | 29 December 1970 |
| Docket Number | No. 28664.,28664. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Ray Austin BAGLEY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Samuel S. Jacobson, Datz & Jacobson, Jacksonville, Fla. for appellant.
John L. Briggs, U. S. Atty., Allan P. Clark, Joseph W. Hatchett, Asst. U. S. Attys., Jacksonville, Fla., for appellee.
Before TUTTLE, DYER and SIMPSON, Circuit Judges.
This post induction Selective Service case presents, once again, the question of whether a draft board's failure to follow its own regulations constitutes reversible error. Because this court has long adhered to the proposition that "it is of the essence of the validity of board orders and of the crime of disobeying them that all procedural requirements be strictly and faithfully followed, and that a showing of failure to follow them with such strictness and fidelity will invalidate the order of the board and a conviction based thereon," Olvera v. United States, 223 F.2d 880, at 882 (5th Cir., 1955), we reverse.
In April, 1968, appellant applied for a ministerial (IV-D) exemption or, in the alternative, a conscientious objector (I-O) classification, based on his activity as a Jehovah's witness. These claims were denied, and on June 3, 1968, he requested a personal appearance. On that same day, appellant's employer (ITT Rayonier in Fernandina Beach, Florida) requested that he be given an occupational (II-A) deferment because of his work in the chemical department.
A personal appearance was scheduled for June 25, 1968. Prior to this date, appellant filed a written request for a conference with the Board's government appeals agent. This request was made pursuant to a written statement from the Board that he had a right to contest the denial of his application for a deferment and was entitled to the assistance of a government appeals agent for that purpose.1
Appellant received no response to his request. However, at the time of his personal appearance and in the presence of the Board and its clerk, he again requested a conference with the Appeals Agent. The record shows that the clerk stated that such a conference would be difficult to arrange and, in any event, it was not really necessary for she would provide appellant with whatever assistance he needed.
In addition to this advice, the Clerk, again in the presence of the Board, stated that appellant should pursue his request for a deferment by presenting only one claim at a time. That is to say, though appellant had three claims pending at the time of his personal appearance, he was told that they would deal only with his religious claim. If that claim was denied he should appeal, and if he lost, only then would they consider his other requests.
Appellant followed this procedure. Though he was engaged in anti-pollution efforts for ITT Rayonier, he desisted from any effort at establishing this occupational classification, until he learned whether or not his religious claim had been rejected by the Appeal Board. When the local board notified him that his appeal had been denied, however, they issued his order for induction the very same day. Appellant was thus precluded from ever fully establishing his other claims. At the induction station, he refused to take the symbolic step forward. He was convicted of violation of 50 App. U.S.C. § 462 and sentenced to five years imprisonment.
Appellant raises two main issues:
Assuming a registrant has several possible deferment claims pending before his local board at the time of his personal appearance, he is not only entitled to have all these claims considered, but is entitled to supplement the record regarding each or any of these claims. The regulations clearly require that the Local Board is required to consider a registrant's overall classification picture, and then place him in the lowest classification applicable to him. See 32 C.F.R. 1622.1(c), 1623.2. Indeed, the record includes a sample copy of a "Check Sheet for Appeals" used by many boards. The tenth question specifically asks whether the registrant was asked to submit evidence in support of all his claims.
The record also reveals that appellant fully intended to discuss all his possible classifications, including his II-A deferment. He testified that he intended to give his Board a full explanation of the anti-pollution research in which he was engaged, but that he made no effort to do so in light of the Clerk's advice. Because he was inducted the same day his religious exemption appeal was denied, he simply never had the opportunity to adequately state his case.
In light of the requirements of the regulations and the emphasis this court has placed on the value of explaining one's claims at the personal appearance, we find this to be reversible error. As this court has recently stated in Magaro v. Cassidy, 426 F.2d 137 (5th Cir., 1970), it is at the personal appearance that a registrant may:
"* * * discuss his classification, * * * point out the class or classes in which he thinks he should have been placed * * * direct attention to any information in his file which he believes the local board has overlooked or to which it has not given sufficient weight, and * * * present such further information as he believes will assist the board in determining his proper classification." Knox v. United States, 200 F.2d 398, 399 (9th Cir. 1952), quoting former provisions of 32 C.F.R. § 1624.2(b).
In addition to the above, appellant was denied an appointment with the Government Appeals Agent. In the context of this case, we feel that this, too, constitutes reversible error.
Although there is no explicit statement in the regulations of a right to confer with the Government Agent, the regulations clearly state each Board must have such an agent and that he is to have the following duties:
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United States v. Taylor, 29198.
...his draft board or its clerk. See, e. g., Edwards v. Selective Service Local Board No. 111, 5 Cir. 1970, 432 F.2d 287, United States v. Bagley, 5 Cir. 1970, 436 F.2d 55. McGee v. United States, 401 U.S. 479, 91 S.Ct. 1565, 29 L.Ed.2d 47 is not at variance with these sentiments. In McGee the......
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United States v. Wilson
...useful information. It has been repeatedly held that failure to do so invalidates a subsequent induction order. E. g., United State v. Bagley, 436 F.2d 55 (5th Cir. 1970); United States v. Williams, 420 F.2d 288 (10th Cir. 1970); Powers v. Powers, 400 F.2d 438 (5th Cir. 1968); Petersen v. C......
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United States v. Garriott, 23550-1.
...utilize the services of the Government Appeals Agent was, under the circumstances of this case, clearly prejudicial. United States v. Bagley, (5th Cir., 1970) 436 F.2d 55, directed attention to the duties imposed by law on a Government Appeals Agent. It was there noted that 32 C.F.R. § 1604......
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United States v. Taylor
...his proper classification." Magaro v. Cassidy, 426 F.2d 137, 142 (5th Cir. 1970) (citations omitted). See also United States v. Bagley, 436 F.2d 55 (5th Cir. 1970). The appearance thus permits the registrant to submit additional, potentially crucial information, either orally or in writing.......