Unites States of America v. Gary Lee Aufdenspring

439 F.2d 388 UNITES STATES of America, Plaintiff-Appellee, v. Gary Lee AUFDENSPRING, Defendant-Appellant. No. 25811. United States Court of Appeals, Ninth Circuit. March 11, 1971. Neil F. Horton (argued), Johnston, Klein & Horton, Oakland, Dal., for appellant. Alan H. Friedman, Asst. U.S. Atty. (argued), Robert L. Meyer, U.S. Atty., David R. Nissen, Chief, Crim. Div., Richard H. Kirschner, Asst. U.S. Atty., Los Angeles, Cal., for appellee. Before CHAMBERS, JERTBERG and MERRILL, Circuit Judges. PER CURIAM: 1 Appellant was convicted of refusing to submit to induction into the Armed Forces of the United States, in violation of 50 U.S.C. App. 462. 2 Appellant was classified I-A by his local board on July 22, 1964, and so notified. On October 24, 1966, he was ordered to report for induction on November 22, 1966. He did report but his induction was held in abeyance pending determination of his acceptability. 3 On November 25, 1966, appellant requested the local board to send him a conscientious objector form (SSS Form 150). On December 5, 1966, he returned the completed form to his local board. 4 On April 5, 1967, the Department of the Army informed the National Director of…

(concurring) :

It seems to me that when a board decides to give a registrant a little grace at or after induction day, it would be better to formally vacate the existing induction notice. I believe it would lead to clearer thinking on the procedural steps to be observed thereafter.

I am not advocating more grace. There should be a cutoff date after which the registrant would have to go into the army and thereafter he could follow the established procedures to get out.

But holding a fellow half in and half out leads to trouble. On the facts of this case, I concur.

Appellant was convicted of refusing to submit to induction into the Armed Forces of the United States, in violation of 50 U.S.C. App. § 462.

Appellant was classified I-A by his local board on July 22, 1964, and so notified. On October 24, 1966, he was ordered to report for induction on November 22, 1966. He did report but his induction was held in abeyance pending determination of his acceptability.

On November 25, 1966, appellant requested the local board to send him a conscientious objector form (SSS Form 150). On December 5, 1966, he returned the completed form to his local board.

On April 5, 1967, the Department of the Army informed the National Director of Selective Service that a neuro-psychiatric evaluation would be required before a final determination could be made on appellant’s acceptability for induction into the Armed Forces. The California Headquarters of Selective Service notified appellant’s local board of this development, and requested the board to forward to the California Headquarters the appellant’s complete file after the re-examination. The local board informed appellant that his induction had not been completed “pending clearance of your record” and that…