United States v. Grizzard

• Decision Date: 26 November 1963
• Docket Number: Cr. 32555.
• Citation: United States v. Grizzard, 223 F.Supp. 890 (S.D. Cal. 1963)
• Parties: UNITED STATES of America, Plaintiff, v. Richard Byrne GRIZZARD, Defendant.
• Court: U.S. District Court — Southern District of California

223 F. Supp. 890

UNITED STATES of America, Plaintiff, v.Richard Byrne GRIZZARD, Defendant.

Cr. 32555.

United States District Court S. D. California, Central Division.

November 26, 1963.

Francis C. Whelan, U. S. Atty., Thomas R. Sheridan, Asst. U. S. Atty., Chief, Criminal Section, John A. Mitchell, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff.

J. B. Tietz, Los Angeles, Cal., for defendant.

CURTIS, District Judge.

The defendant here is charged with knowingly failing and refusing to be inducted into the Armed Forces in violation of Title 50 U.S.C.App. § 462.At his trial the case was submitted upon his Selective Service record and his motion for acquittal.The defendant offered no evidence.

It appears from the record that on September 20, 1956, defendant registered with his local draft board; on September 17, 1959, he was classified 3A and given a year's dependency deferment upon his showing that he was supporting his invalid mother.In September 1960 and again in November 1961he obtained additional dependency deferments upon the same showing.On November 26, 1962, the defendant again filed a dependency questionnaire, Form 118, which although substantially the same as the earlier questionnaires did, in fact, differ in these respects.First, whereas he had previously reported that he was employed, the new questionnaire stated that he was temporarily unemployed.Second, whereas in his earlier questionnaire he had listed his older brother as a member of the family, in his later questionnaire he omitted such reference.Filed with the questionnaire was a doctor's statement indicating that defendant's mother would be able to return to work in approximately two months.On December 10, 1962, defendant was classified 1A and ordered to appear for physical examination.

Defendant first contends that since his status was substantially the same in November 1962 as it had been in the earlier years in which he had filed dependency questionnaires, the board's refusal to again classify him as 3A and give him a dependency deferment was arbitrary and capricious and that the changes hereinabove referred to in his situation could not be a proper basis for a change in his classification.

At least insofar as the board had before it some evidence of the expected improvement in defendant's mother's condition there was some basis for its new classification, and it is well settled that the sufficiency of the evidence before a Selective Service Board is not a matter of judicial review.Boyd v. United States, 269 F.2d 607(Ninth Cir.1959).

Furthermore, a registrant is not entitled to judicial review of any classification from which he did not appeal.Kaline v. United States, 235 F.2d 54(Ninth Cir.1956);Williams v. United States, 203 F.2d 85(Ninth Cir.1953);Rowland v. United States, 207 F.2d 621(Ninth Cir.1953).The defendant did not appeal nor, in fact did he thereafter complain of the board's action in this regard until upon his motion to acquit, which is now pending before the court.

After passing his physical examination the defendant received a notice mailed by the board on February 26, 1963, ordering him to report for induction on March 28, 1963.On March 18, 1963, the defendant filed another dependency questionnaire Form 118 but also filed for the first time special form for a conscientious objector, SSS Form 150.On March 25, 1963, the defendant was notified by the board that on account of his mother's condition his induction was deferred until May 1963 and that his Form 150 had been reviewed and considered along with information furnished by the defendant and that "it was felt by the board that your case did not warrant the reopening or change in your classification at this time."

Defendant contends that the denial of his claim for classification as a conscientious objector and the board's refusal to reopen his case was arbitrary, capricious, contrary to law and a denial of due process.

32 C.F.R. 1625.2 provides in part

"* * * the classification of a registrant shall not be reopened after the local board has mailed to such registrant an Order to Report for Induction (SSS FormNo. 252) or an Order to Report for Civilian Work and Statement of Employer (SSS FormNo. 153) unless the local

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