United States v. Ernest Stephen Brown

438 F.2d 1115 UNITED STATES of America, Appellee, v. Ernest Stephen BROWN, Appellant. No. 26352. United States Court of Appeals, Ninth Circuit. February 17, 1971. Michael S. N. Johnson (argued), San Francisco, Cal., for appellant. John G. Milano (argued), Asst. U. S. Atty., James L. Browning, Jr., U. S. Atty., Jerrold M. Ladar, Chief, Crim. Div., San Francisco, Cal., for appellee. Before HAMLEY and KILKENNY, Circuit Judges, and FERGUSON, District Judge * . HAMLEY, Circuit Judge: 1 Ernest Stephen Brown appeals from a judgment convicting him of refusing to submit to induction into the armed forces of the United States, in violation of 50 U.S.C. App. § 462. 2 On July 12, 1968, Brown was reclassified from II-S to I-A, and shortly thereafter was ordered to report for a physical examination on September 13, 1968. Brown so reported and was found to be qualified for military service. On December 19, 1968, he was ordered to report for induction on January 22, 1969. Brown reported to the induction center, but when he was called to take the symbolic step forward to signify his acceptance of induction, he declined to do so. 3 On this appeal, as in the trial court, Brown argues that when…

Ernest Stephen Brown appeals from a judgment convicting him of refusing to submit to induction into the armed forces of the United States, in violation of 50 U.S.C. App. § 462.

On July 12, 1968, Brown was reclassified from II-S to I-A, and shortly thereafter was ordered to report for a physical examination on September 13, 1968. Brown so reported and was found to be qualified for military service. On December 19, 1968, he was ordered to report for induction on January 22, 1969. Brown reported to the induction center, but when he was called to take the symbolic step forward to signify his acceptance of induction, he declined to do so.

On this appeal, as in the trial court, Brown argues that when he reported on his induction day, he was not accorded the kind of physical examination required by the applicable regulations and for this reason, he is not guilty of refusing to submit to induction. The Army regulation in question (AR 601-270, ch. 3, § III, par. 69 at 3-23 [1965]; AR 601-270 ch. 4, § II at 4-21 [1969]) provides that inductees who, like Brown, have previously been given a thorough medical examination will, on induction day have their medical records reviewed, including a…

In Briggs v. United States, 397 F.2d 370 (9th Cir. 1968), the case on which the majority relies, the inductee received no physical inspection whatsoever. Here, the appellant was not denied a physical inspection. The medical examiner reviewed appellant’s previous medical examination reports, observed the appellant and determined from his own observation and questioning that appellant was in the same physical condition as he was at the time of the original physical examination and was physically qualified for induction. In these circumstances, the failure to require appellant to remove his clothing did not invalidate the inspection. Dillon v. United States, 423 F.2d 1121 (9th Cir. 1970), controls on these facts. Nothing in the Selective Service Regulations requires that an inductee be remeasured as to height and reweighed at the time of the physical inspection.

Where, as here, the inductee has never applied for a conscientious objector classification from the Selective Service System, either prior to issuance of the induction order, after receipt of the order, or even subsequent to his refusal to submit to induction, he cannot urge conscientious objection as a defense to his…