United States v. Mekolichick, 11794
| Citation | 234 F.2d 71 |
| Decision Date | 01 June 1956 |
| Docket Number | 11795.,No. 11794,11794 |
| Parties | UNITED STATES of America v. Frank MEKOLICHICK, Jr., Appellant. UNITED STATES of America v. David Charles WENNER, Appellant. |
| Court | U.S. Court of Appeals — Third Circuit |
Hayden C. Covington, Brooklyn, N. Y., for appellants.
Stephen A. Teller, Asst. U. S. Atty., Scranton, Pa. (J. Julius Levy, U. S. Atty., Scranton, Pa., on the brief), for appellee.
Before BIGGS, Chief Judge, and McLAUGHLIN and STALEY, Circuit Judges.
These two Selective Service cases present the same major problem with an additional proposition raised in the Wenner appeal.
In Mekolichick, the registrant asserted he was a minister of religion and a conscientious objector. The board denied both claims. He was given a personal hearing, thereafter reclassified as I-O and assigned to civilian work. He reported, undertook the hospital work assigned him and was classified I-W. He worked about four months and then left the hospital. At the trial Mekolichick testified that he made an inspection of the bulletin board of the draft board and there were no names and addresses of advisors to registrants posted.
Wenner in his questionnaire stated he was a student for the ministry and a conscientious objector. He was classified I-A, given a personal appearance hearing and the classification continued. On appeal the matter was sent back to the local board which, without reclassifying the registrant, returned the file to the appeal body. The appeal board classified Wenner as I-O and assigned him to hospital work. He reported for work and was classified I-W. He stayed for something less than a month, turned in his key and left the hospital.
It was stipulated that Wenner would give the same testimony as Mekolichick regarding his inspection of the bulletin board and that no notice of names and addresses of advisors to registrants was posted nor did any board member tell him they had advisors for registrants.
The common point is that the local board denied appellants procedural due process of law and invalidated the work orders by failing to post the names of advisors to registrants conspicuously in the local board office as required by Section 1604.41 of the Selective Service Regulations (32 C.R.F. § 1604.41). That section at the time read:
The section was amended on February 3, 1955 by changing the word "shall" in the first sentence to "may", making the appointment of advisors discretionary with the Director.
It is true that the trial court found as to both defendants that "It is the undisputed testimony of the defendant that the list of advisors was not published as provided for in the Regulations." However, it is also true that there is no testimony by Mekolichick or anyone else as to whether there was a list posted at the time these matters were pending before the Selective Service. The record rather indicates that the check up by Mekolichick was made after his claim had been completely processed; certainly there is enough to require the return of these appeals to the district court to clarify that issue if it were dispositive here. But there is no necessity to follow that procedure for, assuming that the names and addresses of advisors were not posted, under the admitted facts, these cases are without merit.
Plainly there was no denial by the board of assistance to these registrants. If, as is now circuitously argued for them, they did inspect the bulletin board for a list of advisors while their claims were being considered they knew of that procedure but never requested a list or other assistance.
What really occurred in these claims is that Selective Service painstakingly passed upon everything appellants had to offer. The facts and proper inferences therefrom strongly indicate expert assistance to appellants in the preparation of their answers to the questionnaires and that nothing was neglected in the full presentation of their claims. If there was failure to post a notice of the names and addresses of advisors that omission did not cause harm in any degree to appellants.
It was conceded in the district court that the ministerial status contentions were without merit and they were withdrawn. The allegation of lack of due process in connection with them was however reserved. Registrants were ultimately upheld in their stand as conscientious objectors and assigned to hospital employment at the Pennsylvania Tuberculosis Sanatorium. Both of them regularly reported for duty. Mekolichick worked four months and quit. He gave as the reason at that time "it was his duty to be a minister regardless of consequences." Wenner qualified for a hospital position and was so classified. Within a month he, too, left. The reason he stated for his act was that the position interfered with his ministerial duties.
In other words, despite the assumed failure to post the names of advisors, these appellants, after exhaustive Selective Service hearings, were allowed exactly what they sought. Irrespective of this conceded result it is argued on their behalf that the alleged failure to post names of advisors was fatal as a violation of due process. Our Zeiber and Stiles opinions1 are erroneously cited as supporting this assertion. In both those decisions the violation...
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United States v. Jones
...(5 Cir.), 243 F.2d 99; Uffelman v. United States (9 Cir.), 230 F.2d 297; United States v. Manns (7 Cir.), 232 F.2d 709; United States v. Mekolichick (3 Cir.), 234 F.2d 71, certiorari denied 352 U.S. 908, 77 S.Ct. 147, 1 L.Ed.2d 117; Kaline v. United States (9 Cir.), 235 F. 2d Accordingly, u......
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...to which he is entitled, then a mere technicality in procedure will not invalidate the decisions of the local board. United States v. Mekolichick, 234 F.2d 71 (3rd Cir.1956), cert. denied 352 U.S. 908, 77 S.Ct. 147, 1 L.Ed.2d 117 (1956), rehearing denied 352 U.S. 977, 77 S.Ct. 351, 1 L.Ed.2......
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Yaich v. United States
...v. United States, 6 Cir., 1956, 229 F.2d 421, certiorari denied 1956, 351 U.S. 930, 76 S.Ct. 788, 100 L.Ed. 1460; United States v. Mekolichick, 3 Cir., 1956, 234 F.2d 71, certiorari denied 1956, 352 U.S. 908, 77 S.Ct. 147, 1 L.Ed.2d 117. It is to be noted that appellant first registered for......
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Steele v. United States, 5137.
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