United States v. Caughman, Crim. No. 72-227.

• Decision Date: 24 November 1972
• Docket Number: Crim. No. 72-227.
• Citation: 361 F. Supp. 723
• Court: U.S. District Court — District of South Carolina
• Parties: UNITED STATES of America v. George Wesley CAUGHMAN, Jr.

361 F. Supp. 723

UNITED STATES of America v. George Wesley CAUGHMAN, Jr.

Crim. No. 72-227.

United States District Court, D. South Carolina, Columbia Division.

November 24, 1972.

U. S. Atty. John K. Grisso, Columbia, S. C., for plaintiff.

Laughlin McDonald, Atlanta, Ga., for defendant.

FINDINGS OF FACT CONCLUSIONS OF LAW and ORDER

CHAPMAN, District Judge.

This action was instituted by an indictment returned on June 6, 1972, in which it was alleged that the defendant George Wesley Caughman, Jr., unlawfully, knowingly and willfully refused to submit to induction into the Armed Forces of the United States on the 15th day of November 1971 in violation of Title 50 United States Code Appendix, Section 462. The defendant waived trial by jury and requested that he be tried by the Court. This request was concurred in by the prosecution and the defendant was afforded a trial by the Court on August 22, 1972, and the attorneys for the parties were allowed time thereafter to submit briefs and memoranda of authority in support of their respective positions.

It now becomes the duty of the Court to make findings of fact and state its conclusions of law in accordance with the provisions of Rule 23(c) of the Federal Rules of Criminal Procedure. After considering all of the evidence submitted by both parties the Court publishes its

FINDINGS OF FACT

1. After attaining the age of 18 years the defendant duly registered for the draft with the Local Board No. 32 in Lexington County, South Carolina, and on May 19, 1966 was classified I-A. Thereafter, upon defendant's enrollment at Clemson University in September 1966, he was classified II-S as a student and remained so classified during the next four years except for brief periods of time when he was classified I-A, but each time was reclassified II-S upon his request for the purpose of completing his college education.

2. On March 31, 1970, the defendant was notified to report for an Armed Forces Physical Examination on April 27, 1970. He failed to report for this physical and on June 1, 1970, was notified to explain his reasons to the Local Board within ten days.

3. Defendant was administered a physical examination on July 28, 1970 and found acceptable for military service and was notified of this fact on August 11, 1970.

4. On October 20, 1970, the defendant was classified I-A by Local Board No. 32. This action was taken pursuant to a current information questionnaire submitted by defendant to the Board on September 16, 1970, which indicated that he had completed four years at Clemson University but had not yet received a degree. Defendant was duly notified by the Board of his I-A classification on October 20, 1970, and was at the same time mailed a form SSS 217 advising him of his right to appeal in writing to the State Appeal Board within 30 days.

5. On November 1, 1970, defendant wrote to the Local Board requesting appropriate forms to apply for conscientious objector status. These forms were furnished him and on November 25, 1970, the completed SSS form 150 was received by the Local Board, which advised defendant by letter on the same date that he would appear before the Board on December 15, 1970 to have his claim for conscientious objector classification heard.

6. Defendant was notified on December 4, 1970 that during the calendar year 1970 the highest random sequence number reached by the Local Board was XXX-XX-XX, and since defendant's number was XXX-XX-XX he was being assigned to the "Extended Priority Group".

7. On December 15, 1970, defendant appeared before the Local Board and presented his claim for conscientious objector status. He testified on behalf of his claim, but presented no witnesses or affidavits. Defendant's testimony was summarized in writing and he affixed his signature thereto on December 22, 1970. The Report of Information of the Board dated December 15, 1970, revealed the following findings:

"The Board felt that the registrant is not sincere in his claim for conscientious objector classification. They felt that he is bitter toward the military as a result of his disenchantment with his ROTC experience. They felt that he is opposed to the military and what it represents rather than war itself."

The defendant did not appeal from the Board's denial of his application for I-O classification.

8. On January 18, 1971, defendant was ordered to report for induction into the Armed Services on February 8, 1971. On January 28, 1971, defendant requested a student deferment which was granted and his order for induction was cancelled by the Board.

9. On August 25, 1971, defendant requested that the Local Board reopen his claim for conscientious objector status on newly acquired information. The Board by letter of August 30, 1971, informed the defendant to place any new information on his classification in writing and submit it to the Board within ten days. The Board also advised that it would review his file and determine if the information warranted reopening his classification. The defendant failed to reply in writing to the Board within ten days.

10. On October 13, 1971, defendant was again ordered to report for induction on November 15, 1971. Upon receipt of this induction order, defendant returned it to the Board together with a letter in which he stated that the cut off lottery number for 1971 had been announced to be 125 and since his number was 147, the sending of an induction notice to him must have been a mistake. The Board answered this letter and returned notice by its certified letter dated October 18, 1971, explaining Caughman's assignment to the "Extended Priority Selection Group". The Board also returned to him the order to report for induction.

11. On October 29, 1971, defendant personally visited the office of Local Board 32 and pursuant to his request was allowed to review the contents of his Selective Service file. Thereafter, on November 8, 1971, the defendant in a letter to the Board reiterated his position in opposition to war and also explained that due to the recent death of his father he needed to be quickly available at home, being the only son. Defendant requested the Board to reconsider his case and forewarned the Board that he did not plan to report for induction on November 15, 1971.

12. On November 10, 1971, defendant's selective service file was forwarded to State Selective Service headquarters for consideration of defendant's request to reopen his conscientious objector claim. The file was returned to the Local Board the following day marked "Return for Normal Processing".

13. On November 15, 1971, the defendant failed to report for induction into the Armed Services as ordered and this action by the defendant provided the basis for the indictment in this case.

CONCLUSIONS OF LAW

A. The Government contends that defendant's failure to exhaust his administrative remedies within the Selective Service System forecloses his right to judicial review of the denial of his conscientious objector claim by the Local Board. Defendant asserts that this is not a case for applying the doctrine of exhaustion of remedies, and that the Court should review the action of the Local Board and find that it erred in: (1) Denying his claim for conscientious objector status when there was no basis in fact for so doing; and (2) Failing to reopen defendant's classification to consider the granting of a III-A hardship deferment.

There is no provision for direct judicial review of the actions of Selective Service Appeal Boards. Any issues concerning the classification of a registrant must either be raised in a petition for habeas corpus or as a defense to prosecution for failure to submit for injunction. Witmer v. United States, 348 U.S. 375, 75 S.Ct. 392, 99 L.Ed. 428 (1955).

B. Defendant contends that the present case should be controlled by McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969) in which the United States Supreme Court greatly limited the availability of the doctrine of exhaustion of administrative remedies as a bar to obtaining judicial review of the decisions of Selective Service Boards. McKart had been granted sole surviving son status by the Board, which upon learning of McKart's mother's death, reclassified him I-A. In so doing the Board reasoned that upon her death, the "family unit" had ceased to exist, thereby rendering the sole surviving son status improper. McKart failed to report and was prosecuted. He defended by asserting that he was improperly denied sole surviving son status, but the trial court held that his failure to exhaust the administrative remedies provided by Selective Service System precluded his raising that defense. He was convicted and the Court of Appeals affirmed. However, the United States Supreme Court observed that the case was not an appropriate one to allow the Government to raise exhaustion of remedies as a bar to McKart's defense. Mr. Justice Marshall in delivering the majority opinion stated at page 197, 89 S.Ct. at pages 1664-1665:

"First of all, it is well to remember that use of the exhaustion doctrine in criminal cases can be exceedingly harsh. The defendant is often stripped of his only defense; he must go to jail without having any judicial review of an assertedly invalid order. This deprivation of judicial review occurs not when the affected person is affirmatively asking for assistance from the courts but when the Government is attempting to impose criminal sanctions on him. Such a result should not be tolerated unless the interests underlying the exhaustion rule clearly outweigh the severe burden imposed upon the registrant if he is denied judicial review. The statute as it stood when petitioner was reclassified said nothing which would require registrants to raise all their claims before the appeal boards. We must ask, then, whether there is in this case a governmental interest compelling enough to outweigh the severe burden placed on petitioner.

...