United States v. Dyer, 289-69.

• Decision Date: 06 February 1970
• Docket Number: No. 289-69.,289-69.
• Citation: 421 F.2d 1332
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Stephen Kent DYER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

421 F.2d 1332 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Stephen Kent DYER, Defendant-Appellant.

No. 289-69.

United States Court of Appeals, Tenth Circuit.

February 6, 1970.

Leonard W. D. Campbell, Asst. U. S. Atty. (James L. Treece, U. S. Atty., and Gordon L. Allott, Jr., Asst. U. S. Atty., on the brief), for appellee.

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

Before MURRAH, Chief Judge, and BREITENSTEIN and SETH, Circuit Judges.

PER CURIAM.

A jury found defendant-appellant guilty of failure to report for induction into the armed forces of the United States in violation of 50 U.S.C. App. § 462(a) and he was sentenced to an indeterminate term under the Youth Corrections Act. 18 U.S.C. § 5010(b). He attacks the order of induction on the ground that he was unlawfully subjected to a punitive advancement in the order of call because of his delinquency. The recent decision in Gutknecht v. United States, 396 U.S. 295, 90 S.Ct. 506, 24 L.Ed.2d 532, requires a reversal of the judgment.

Defendant registered with his Selective Service Local Board and was given a II-S student deferment. On March 27, 1967, he was classified I-A because of a lack of certification of scholastic standing. He then completed and filed a conscientious objector form. Because of the receipt of a satisfactory scholastic certificate, the Local Board did not rule on the conscientious objector application but continued the II-S deferment until June 15, 1968. On May 16, 1968, the defendant notified the Local Board that he was sending his Selective Service card to the Department of Justice. On August 6, 1968, the Local Board classified him I-A and mailed him a notice of classification and advice as to his rights. The Local Board issued a delinquency notice on August 21 and notified defendant. On September 3, the defendant appeared before the Local Board for a personal appearance interview. At that time he said that he would not accept a I-O classification. The Local Board advised him of his rights of appeal. No appeal was taken and after the end of the appeal period, defendant was ordered to report for induction on October 23, 1968. He failed to report and was thereafter indicted.

Defendant was delinquent in failing to have his registration certificate and current classification notice in his personal possession at all times as required by the Selective Service Regulations, 32 CFR §§ 1617.1 and 1623.5 respectively. The declaration of delinquency was proper under 32...