421 F2d 1332 United States v. Dyer

421 F.2d 1332

UNITED STATES of America, Plaintiff-Appellee,
Stephen Kent DYER, Defendant-Appellant.

No. 289-69.

United States Court of Appeals, Tenth Circuit.

Feb. 6, 1970.

Leonard W. D. Campbell, Asst. U.S. Atty. (James L. Treece, U.S. Atty., and Gordon L. Allott, Jr., Asst. U.S. Atty., on the brief), for appellee.

Elmer Lee Hamby, Denver, Colo., for appellant.

Before MURRAH, Chief Judge, and BREITENSTEIN and SETH, Circuit judges.


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A jury found defendant-appellant guilty of failure to report for induction into the armed forces of the United States in violation of 50 U.S.C. App. 462(a) and he was sentenced to an indeterminate term under the Youth Corrections Act. 18 U.S.C. 5010(b). He attacks the order of induction on the ground that he was unlawfully subjected to a punitive advancement in the order of call because of his delinquency. The recent decision in Gutknecht v. United States, 396 U.S. 295, 90 S.Ct. 506, 24 L.Ed.2d 532, requires a reversal of the judgment.


Defendant registered with his Selective Service Local Board and was given a II-S student deferment. On March 27, 1967, he was classified I-A because of a lack of certification of scholastic standing. He then completed and filed a conscientious objector form. Because of the receipt of a satisfactory scholastic certificate, the Local Board did not rule on the conscientious objector application but continued the II-S deferment until June 15, 1968. On May 16, 1968, the defendant notified the Local Board that he was sending his Selective Service card to the Department of Justice. On August 6, 1968, the Local Board classified him I-A and mailed him a notice of classification and advice as to his rights. The Local Board issued a delinquency notice on August 21 and notified defendant. On September 3, the defendant appeared before the Local Board for a personal appearance interview. At that time he said that he would not accept a I-O classification. The Local Board advised him of his rights of appeal. No appeal was taken and after the end of the appeal period, defendant was ordered to report for induction on October 23, 1968. He failed to report and was thereafter indicted.


Defendant was delinquent in failing to have his registration certificate and current classification notice in his personal possession at all times as required by the Selective Service Regulations, 32 CFR 1617.1 and 1623.5 respectively. The declaration of delinquency was proper under 32 CFR 1642.4. The consequence of this declaration was to deprive the defendant of his previous standing in the order of call. The pertinent regulation, 32 CFR 1631.7(a)(1), provides that delinquents who have attained the age of 19 years shall be selected first.


Gutknecht holds that the Selective Service Regulations which provide for punitive delinquency declaration and accelerated induction of the delinquents are not authorized by the Military Selective Service Act of 1967,62 Stat. 604, as amended 65 Stat. 75, 81 Stat. 100. Accordingly, the delinquency declaration and the order of induction which deprived the defendant of his previous standing in the order of call were unauthorized.