United States v. Cassarino, Crim. A. No. 6943.

• Decision Date: 25 June 1970
• Docket Number: Crim. A. No. 6943.
• Citation: 314 F. Supp. 813
• Parties: UNITED STATES of America v. Craig Joseph CASSARINO.
• Court: U.S. District Court — District of New Hampshire

314 F. Supp. 813

UNITED STATES of America v. Craig Joseph CASSARINO.

Crim. A. No. 6943.

United States District Court, D. New Hampshire.

June 25, 1970.

David A. Brock, U. S. Atty., Concord, N. H., for plaintiff.

Gerald R. Prunier, Leonard, Leonard, Prolman & Prunier Nashua, N. H., for defendant.

OPINION AND ORDER

BOWNES, District Judge.

Craig Joseph Cassarino was indicted for failure to report and submit to induction into the Armed Forces of the United States in violation of 50 U.S.C. App. § 462 (Supp. IV 1968).¹ He was tried by the Court without a jury. There are two issues: (1) did the Local Selective Service Board follow the correct procedure, prescribed by 32 C.F.R. § 1625.2, with respect to the defendant's claim of conscientious objector status after he had received Notice to Report for Induction; and (2) if the Board did follow the correct procedure, is there a "basis in fact" for its denial of the defendant's request to reopen his classification?

The Court finds the following facts. The defendant registered at the Local Selective Service Board in Milford, New Hampshire, on August 16, 1962, shortly after his eighteenth birthday. He was classified I-A on April 17, 1963, and enlisted in the New Hampshire Air National Guard on June 15, 1963, for six years. On June 26, 1963, the defendant was classified I-D (member of Reserve component). On December 20, 1967, the New Hampshire Air National Guard notified the Local Board that the defendant had been discharged, effective December 11, 1967, "for failure to meet minimum military technical or academic training requirements imposed as conditions of enlistment." Ex. 1-7. The defendant was reclassified I-A January 22, 1968. On January 26, 1968, the defendant was notified of this classification and also of his right to a personal appearance before the Local Board and to appeal to the State Appeal Board within thirty days. The defendant did not request a personal appearance and did not appeal his classification. The defendant was ordered to report, and did report, for a physical examination on March 19, 1968, and was found "acceptable."

On April 8, 1968, the defendant's Order to Report for Induction on May 24, 1968, was mailed to him. On that same day, April 8th, the defendant, prior to receipt of his induction order and with no knowledge of it, went to the Local Board and requested a Special Form for Conscientious Objector (SSS Form 150) which he returned to the Board on April 18, 1968. On April 22, 1968, the Board reviewed the defendant's Special Form for Conscientious Objector and decided not to reopen his classification, and so notified him on April 23, 1968.

The defendant failed to report for induction as ordered.

The regulation governing the Board's action upon receipt of the defendant's request for conscientious objector status is 32 C.F.R. § 1625.2 which provides in part:

The local board may reopen and consider anew the classification of a registrant * * * upon the written request of the registrant * * * provided * * * the classification of a registrant shall not be reopened after the local board has mailed to such registrant an Order to Report for Induction * * * unless the local board first specifically finds there has been a change in the registrant's status resulting from circumstances over which the registrant had no control. (Emphasis added.)

The procedure to be followed under this regulation and in this situation has been set out by the Second Circuit in United States v. Gearey, 368 F.2d 144 (2nd Cir. 1966), cert. denied, 389 U.S. 959, 88 S.Ct. 335, 19 L.Ed.2d 368, reh. denied, 389 U.S. 1010, 88 S.Ct. 561, 19 L.Ed.2d 611 (1967) which was adopted by the First Circuit in United States v. Stoppelman, 406 F.2d 127, 131 n. 7 (1st Cir. 1969), cert. denied, 395 U.S. 981, 89 S.Ct. 2141, 23 L.Ed.2d 769 (1969).²

The Local Board must first determine when an applicant's beliefs matured. If the Board properly concludes that the claim existed before the notice was sent, the classification may not be reopened. If the Board finds, however, that the applicant's beliefs ripened only after he received his notice, and that his beliefs qualify him for classification as a conscientious objector then a change in status would have occurred "resulting from circumstances over which the registrant had no control," and he would be entitled to be reclassified by the Local Board. 368 F.2d at 150. (Footnotes omitted.)

The basis for the action of the Local Board at their meeting on April 22, 1968, is unclear at best. The Court must rely solely on the following two sources in determining what basis there was.

(1) Minutes of Local Board Meeting:

On April 22, 1968, the form and attachments were reviewed by the board at the meeting and the board decided by vote of 4-1 not to reopen the

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