United States v. Ford, 7562.

• Court: U.S. Court of Appeals — First Circuit
• Writing for the Court: ALDRICH, , McENTEE and COFFIN, Circuit
• Citation: United States v. Ford, 431 F.2d 1310 (1st Cir. 1970)
• Decision Date: 06 October 1970
• Docket Number: No. 7562.,7562.
• Parties: UNITED STATES of America, Appellee, v. Kevin Thomas FORD, Defendant, Appellant.

431 F.2d 1310 (1970)

UNITED STATES of America, Appellee, v. Kevin Thomas FORD, Defendant, Appellant.

No. 7562.

United States Court of Appeals, First Circuit.

October 6, 1970.

W. Wright Danenbarger, Manchester, N. H., by appointment of the Court, with whom Wiggin, Nourie, Sundeen, Pingree & Bigg, Manchester, N. H., was on brief, for appellant.

William B. Cullimore, Asst. U. S. Atty., with whom David A. Brock, U. S. Atty., was on brief, for appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

COFFIN, Circuit Judge.

This is an appeal from a judgment of conviction by the district court for wilfully refusing to submit to induction. 50 U.S.C. App. § 462(a). Appellant was first ordered to report for induction on July 16, 1968. Through a mistake in dates he reported a day late; his local board excused him and postponed his induction date to August 15. Appellant duly reported but, having in the meantime been arrested on a charge of being in the presence of marijuana, a "moral waiver" was required. Army Reg. 601-270, ¶¶ 3-9. The waiver was issued¹ and the board ordered appellant to report for induction on September 18. It is appellant's failure to report on this date which led to his prosecution and conviction.

While appellant raises a number of issues relating to local board procedure and trial, of chief concern to us are two letters received by the board on July 17² from two doctors concerning appellant's mental and emotional disorders. One, from appellant's local doctor of some years, stated that appellant was deeply disturbed, with neurotic depression and anxiety, was a chronic user of drugs, that induction might have "severely destructive" results, and that further psychotherapy was being arranged. The second letter, from a Boston psychiatrist to whom appellant had been referred, reported observations made after a number of visits and psychological testing. His conclusion was that appellant had a pathological personality condition, that he should have long term therapy, and that military service would harm appellant and possibly others. These letters were not brought to the attention of the board but were, in August, sent by the clerk to the Armed Forces Examining and Entrance Station (AFEES) where they were stamped as "Received and Considered", at the time when an Army psychiatrist, after an office interview, found appellant acceptable for induction.³

Appellant contends that the September induction order was invalid because the local board did not at any time consider the contents of these letters received prior to the date of that order. He argues that the use of a procedure which does not afford the local board the opportunity to consider whether to reopen a registrant's classification, based on letters received by the board whose contents present a nonfrivolous case for such a reclassification, vitiates a subsequent induction order.

The district court cited Selective Service regulation 32 C.F.R. § 1625.2 which says that a local board "may reopen and consider anew the classification of a registrant * * * based upon facts not considered when the registrant was classified which, if true, would justify a change in the registrant's classification." It observed that this was permissive, not mandatory, and noted as even more important the fact that the letters did go forward with the file to AFEES where appellant was given a special psychiatric examination. It saw no violation of due process.

The matter is, we feel, more complex. That the board is given wide discretion whether or not to reopen a case is obvious. But it is far from obvious that a clerk should have the power to determine what the board should see as a basis for exercising its discretion. We can readily conceive of a case in which the facts supplied to a local board about a registrant might demonstrate a dramatic change in the dependency of his family or in his own physical condition. In such a case we doubt that a board could justify its failure to reopen on the ground that the clerk had chosen not to submit the vital new information to it. If the reposing of discretion in the board is to have meaning and substance, it must be that the facts prerequisite to the exercise of judgment should come to its attention.⁴ We find such an analysis implicit if not explicit in Mulloy v. United States, 398 U.S. 410, 90 S.Ct. 1766, 26 L.Ed.2d 362 (1970). Although the registrant in that case made a written request for a reconsideration of his classification and no such request was made here by appellant, the Court's resolution is directly relevant to our situation. Under 32 C.F.R. § 1625.2 there are two events which can trigger a reopening of a registrant's classification: (a) a written request by persons within certain categories;⁵ or (b) action by the board itself. Both sections require the same quantum of evidence to support a reopening, i. e., "facts not considered when the registrant was classified, which, if true, would justify a change in the registrant's classification." 32 C.F. R. § 1625.2. The Court in Mulloy considered the operations of the first triggering device, the written request by a registrant. It pronounced the following standard:

"Where a registrant makes nonfrivolous allegations of facts that have not been previously considered by his board, and that, if true, would be sufficient under regulation or statute to warrant granting the requested reclassification, the Board must reopen the registrant\'s classification unless the truth of these new allegations is conclusively refuted by other reliable information in the registrant\'s file." 398 U.S. at 416, 90 S.Ct. at 1771.

The motivating consideration behind the Court's circumscribing of local board discretion in reopening classifications is that there is a critical difference between a simple refusal to reopen and reopening followed by a decision not to alter the registrant's classification. Once the local board reopens, it is required by regulation to "consider the new information which it has received and to again classify the registrant in the same manner as if he had never been classified. Such...