United States v. Ward, Crim. No. 13095.

• Decision Date: 16 November 1973
• Docket Number: Crim. No. 13095.
• Citation: 366 F. Supp. 347
• Parties: UNITED STATES of America, Plaintiff, v. Stephen Bowles WARD, Defendant.
• Court: U.S. District Court — District of Hawaii

366 F. Supp. 347

UNITED STATES of America, Plaintiff, v. Stephen Bowles WARD, Defendant.

Crim. No. 13095.

United States District Court, D. Hawaii.

November 16, 1973.

Thomas P. Young, Asst. U. S. Atty., Harold M. Fong, U. S. Atty., Honolulu, Haw., for plaintiff.

John S. Edmunds, Honolulu, Haw., for defendant.

DECISION AND ORDER DISMISSING INDICTMENT

SAMUEL P. KING, District Judge.

Defendant Stephen Bowles Ward moves to dismiss an indictment charging him with failure, neglect and refusal to be inducted into the Armed Forces in violation of 50 U.S.C. App. § 462. Defendant contends that under the applicable statute he was entitled to a I-S deferment as a matter of right because he received his induction notice while he was a full time student. He also alleges that because the local board erred in not granting him a I-S deferment, he was denied the right to have his file reopened for consideration of new facts.

The facts in this case are not in dispute. Defendant entered college in 1964 and was granted a II-S deferment in March of that year. On April 4, 1968, he was reclassified I-Y and a month later was ordered to report for a physical examination. Defendant was found acceptable for induction and mailed a statement to that effect on January 9, 1969. He was subsequently reclassified I-A and on April 15, 1969, was ordered to report for induction on May 16, 1969. Prior to induction the University of California informed the local draft board by letter received on April 24, 1969, that the registrant was enrolled as a full time graduate student slated to receive his degree on June 14, 1969, and requested that he not be inducted prior to that date. Rather than reclassify the defendant, the board merely postponed defendant's induction, and later rescheduled induction for November 18, 1969. Subsequent to that postponement the board received a letter from a Dr. Harvey Paley describing defendant's medical condition which, in the doctor's opinion, disqualified the defendant from military service. Notwithstanding the receipt of this letter, the board took no action to reopen his file for consideration of new facts. On November 18, 1969, defendant failed to report for his induction.

Defendant places reliance on § 6(i) of the Selective Service Act of 1967 which mandates a deferment of any individual ordered to report for induction who was at the time pursuing a full time course of instruction "until the end of such academic year." 32 C.F.R. 1622.15(b) implements § 6(i) with an identical mandate directing that such a student be given a I-S deferment.

The Government argues that defendant cannot invoke § 6(i) since he falls within the exceptions provided by § 6(i)(2). The pertinent portion of paragraph (2) states:

Any person who while satisfactorily pursuing a full time course of instruction . . . is ordered to report for induction under this title, shall, upon the facts being presented to the local board, be deferred . . . . Provided, That (1) any person who has heretofore had his induction postponed under the provisions of section 6(i)(2) of this section; (2) or any person who has heretofore been deferred as a student under section 6(h) of such Act former subsection (h) of this section; (3) or any person who hereafter is deferred under the provision of this subsection, . . ., shall not be further deferred . . . in class I-S.¹

The Court takes note that the Selective Service Act of 1948 remained in effect only until June 19, 1951, when the Universal Military Training and Service Act of 1951 (65 Stat. 75) was enacted containing the above-quoted provision. The purpose of the 1951 Act was to deny further deferments to those who had been deferred under subsection 6(h) and 6(i) of the 1948 Act, since the 1948 Act had contained no extension of liability to age 35 for those so deferred. Since the 1951 and subsequent Acts have provided for such extended liability, there was no reason to apply the first two clauses of the exclusion proviso prospectively — a single I-S deferment could no longer result in a registrant escaping military service. Clearly, the first two exclusions set forth above apply only to those who received a II-S or a I-S between 1948 and 1951. See 1 Selective Service Law Reporter 4041 (1968). There, it is noted that the 1967 Act provides for an absolute right to a I-S for persons ordered for induction during an academic year with four specific exceptions:

first, those who have had undergraduate II-S deferments since July 1, 1967 paragraph 6(h)(i); second and third, those who had a II-S or a I-S deferment between 1948 and 1951 paragraph 6(i)(2); and fourth, those who obtain a I-S under the current Act paragraph 6(i) (2). (1 SSLR 4042)

Defendant Ward does not fall within any of the exceptions mentioned above. He received his II-S classification after the passage of the 1951 Act and before the enactment of the 1967 Act. Thus, defendant Ward was entitled to the I-S deferment provided by § 6(i) and 32 C.F.R. 1622.15(b). Postponement of the induction date, as was done here, is not equivalent to a reclassification. The issuance of an induction order based on an erroneous classification is invalid. See United States v. Brandt, 435 F.2d 324, 327 (9th Cir. 1970); Franks v. United States, 216 F. 2d 266 (9th Cir. 1954); Goety v. United States, 216 F.2d 270, 272 (9th Cir. 1954); United States v. Ward, 445 F.2d 261 (9th Cir. 1971). Defendant's local draft board erred in not reclassifying him I-S on the date they postponed his induction. Accordingly, the induction order sent to defendant was based on an erroneous classification and is therefore invalid.

The second issue presented by defendant's motion to dismiss involves his right to have his file reopened for consideration of new facts presented to the board. The prejudice resulting from the premature issuance of an induction order is...