United States v. Joseph Alan Schmall

Appellant was convicted of refusing induction in violation of 50 U.S.C. App. § 462. He seeks reversal on two grounds.

1. The regulations provide that “A local board of three or more members shall be appointed . . ..” 32 C.F.R. § 1604.52 (a). It is stipulated that only two of the normal complement of three members had been appointed to appellant’s local board when his claim for student deferment was rejected and he was classified I-A. Since both members joined in the action, however, appellant can suggest no prejudice. Cf. United States v. Gasca, 449 F.2d 1288 (9th Cir. 1971); United States v. Reeb, 433 F.2d 381, 383-84 (9th Cir. 1970).

2. On August 21, 1967, appellant filed an SSS form “Request for Undergraduate Student Deferment.” On January 25, 1968, the board rejected appellant’s request and classified him I-A. A week later, on February 22, the board received a second “Request for Undergraduate Student Deferment” from appellant dated January 31. The board took no action on this communication. Appellant contends that the board should have treated it as a notice of appeal from the order rejecting appellant’s claim for a student deferment and classifying him I-A.

The…

(dissenting in part):

I am unable to agree that SS Form 104 (Request For Undergraduate Deferment), filed by the registrant with his Local Board, constituted a notice of appeal from his I-A classification.

The Local Board did not consider the Request as a notice of appeal and did not forward registrant’s file to the Appeals Board, which it normally would have done if Schmall had only indicated that he desired to appeal. The District Judge did not regard the Request as a notice of appeal; neither would I, for it plainly is not. All that the form purported to be was a request for student deferment.

A chronology of the proceedings before the Local Board follows.

A request for an undergraduate student deferment was filed by Schmall with the Local Board on August 21, 1967, and was accompanied by a current information questionnaire indicating that Schmall at that time was enrolled at Solano College. Under date of December 8, 1967, the Board wrote to Schmall as follows:

On January 8, 1968, the Local Board received a Student Certificate (SS Form 109) from California State College at Hayward, to the effect that Schmall had entered upon and was satisfactorily pursuing a full time course…

452 F.2d 468 UNITED STATES of America, Plaintiff-Appellee, v. Joseph Alan SCHMALL, Defendant-Appellant. No. 71-1807. United States Court of Appeals, Ninth Circuit. Dec. 13, 1971. Rehearing Denied Jan. 11, 1972. Phillip B. Ziegler (argued), Berkeley, Cal., for defendant-appellant. John F. Cooney, Jr. (argued), James Bruen, Asst. U. S. Attys., San Francisco, Cal., for plaintiff-appellee. Before WEICK, * BROWNING, and WRIGHT, Circuit Judges. PER CURIAM: 1 Appellant was convicted of refusing induction in violation of 50 U.S.C. App. Sec. 462. He seeks reversal on two grounds. 2 1. The regulations provide that "A local board of three or more members shall be appointed . . .." 32 C.F.R. Sec. 1604.52(a). It is stipulated that only two of the normal complement of three members had been appointed to appellant's local board when his claim for student deferment was rejected and he was classified I-A. Since both members joined in the action, however, appellant can suggest no prejudice. Cf. United States v. Gasca, 449 F.2d 1288 (9th Cir. 1971); United States v. Reeb, 433 F.2d 381, 383-84 (9th Cir. 1970). 3 2. On August 21, 1967, appellant filed an SSS form "Request for Undergraduate Student…