United States v. Olson

• Decision Date: 13 September 1971
• Docket Number: No. 71-1617.,71-1617.
• Citation: 447 F.2d 1362
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lawrence Gaylord OLSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

447 F.2d 1362 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Lawrence Gaylord OLSON, Defendant-Appellant.

No. 71-1617.

United States Court of Appeals, Ninth Circuit.

September 13, 1971.

Gerard J. Glass, San Francisco, Cal., for defendant-appellant.

James L. Browning, U. S. Atty., San Francisco, Cal., for plaintiff-appellee.

Before KOELSCH and CHOY, Circuit Judges, and POWELL^*, District Judge.

CHOY, Circuit Judge:

Lawrence Olson appeals his conviction for refusal to submit to induction. We affirm.

On October 11, 1966, Olson enrolled in Shasta Junior College and subsequently received a II-S student deferment. In 1967, he transferred to Cabrillo Junior College, and the II-S was continued. At the completion of his second year in college, his first at Cabrillo, Olson had completed 58½ units, which fell short of the 60 units required by Cabrillo for junior college graduation after two years.

In December, 1968, Olson's Local Board found that he was not "satisfactorily pursuing a full-time course of instruction" within the meaning of 32 C.F.R. sec. 1625.25¹ and reclassified him I-A. One day after the expiration of the thirty-day appeal period, Olson asked for an appeal and a personal appearance before the Board. The Board granted the appeal, but refused a personal interview. The I-A was upheld on appeal, and Olson was ordered to report for induction. He failed to do so, and was reordered to report. He did so, but refused to take the symbolic step forward. Olson was then indicted and convicted.

The Local Board was correct in revoking Olson's II-S and reclassifying him I-A. Olson enrolled in a two-year college in October, 1966, and in October, 1968, should have completed the full 60-credit program required to graduate. He did not. Olson had four years from 1966 to obtain his baccalaureate degree; the letter sent by Tahoe College in 1969, attesting that he was enrolled as a full-time third-year student at that institution and would graduate in 1971, confirmed that he could not do so.²

The Selective Service System recognizes that the four-year requirement need not be rigidly applied when a student transfers from a junior or community college to a four-year school. Local Board Memorandum No. 43, issued by the Director of Selective Service, provides:

"When a registrant transfers from a junior college or community college to a degree granting institution, and loses credit through no fault of his own, he may have less than the percent of course completion required in R(egulation) 1625.25(c). * * * The local board may, in its discretion, grant a II-S deferment for the first year after transfer. * * *"

But this Memorandum does not help Olson. First, the II-S deferment is discretionary with the Local Board. It need not be given. Second, the Memorandum applies only when a registrant transfers from a junior to a four-year institution and loses credit in that transition. Olson lost his credits in his move from Shasta Junior College to Cabrillo Junior College, or during his enrollment at either school. Finally, Olson has not proved that he lost his credits through no fault of his own.

Whether a student is "satisfactorily pursuing a full-time course of instruction" is a question of fact. In resolving that question, the main source of information and evidence is generally the college administration. "When a college cannot certify that the registrant is expected to graduate on time, certainly a local board would have a basis in fact for terminating the II-S deferment." Coleman v. Tolson, 435 F.2d 1062, 1064 (4th Cir., 1970). Olson could not graduate in time. The Local Board was correct in revoking his II-S. United States v. Brooks, 415 F.2d 502 (6th Cir., 1969).

There is no evidence in the record to indicate that the Board's refusal to reopen Olson's classification when it received the Tahoe College letter was punitive in...