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United States v. Melvin Harvey Tobias, 447 F.2d 227, 3rd Cir. (1971)
United States v. Melvin Harvey Tobias, 447 F.2d 227, 3rd Cir. (1971)
2d 227
return it to the board. Later he was mailed and requested to complete and return
a "Current Information Questionnaire" (Form 127). This too was ignored by the
registrant.
2
We have concluded that the naked request for a Form 150 does not qualify as a
"written statement claiming that [one] is a conscientious objector." Moreover,
because the registrant failed to complete and return the furnished Form 150,
"the board was entitled to proceed, as it apparently did, on the reasonable
assumption that no C.O. claim was being asserted," United States v. Silvera,
supra.
Appellant also contends that the local board was illegally constituted, because
three of the five members were not residents of the area in which the local
board had jurisdiction. Regulation 1604.52(c) then provided:1
The members of local boards shall be citizens of the United States who shall be
residents of a county in which their local board has jurisdiction and who shall
also, if at all practicable, be residents of the area in which their local board has
jurisdiction.
It was stipulated at trial that five members of boards other than the local board
in question resided within the area but were not members of this board.
Appellant's challenge to the constitution of his local board was first asserted as
an attack on his classification made in his defense to the criminal proceedings
below. At no time did the registrant so challenge his classification at any
administrative level of the Selective Service System.2 This failure to exercise
his right of appeal, and so to exhaust his available administrative remedies, bars
this subsequent attack. United States v. Zmuda, 423 F.2d 757, 761 (3 Cir.
1970); United States v. Grundy, 398 F.2d 744, 746 (3 Cir. 1968); DuVernay v.
United States, 394 F.2d 979, 981 (5 Cir. 1968), aff'd 394 U.S. 309, 89 S.Ct.
1186, 22 L.Ed.2d 306 (1969).
In United States v. Deans, 436 F.2d 596, 600 (3 Cir. 1971), this court said:
In McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194
(1969), the Supreme Court set forth a number of guidelines for the application
of the exhaustion doctrine in selective service cases. The Court began with the
premise that a registrant's failure to appeal his classification should not
foreclose all judicial review in a criminal case unless there is a compelling
governmental interest to be served in having the Selective Service System
decide the case before it reaches the courts. [emphasis supplied]
10
11
We hold that because appellant did not challenge the composition of the board
at any level in the selective service system, he was precluded from raising it for
the first time as a defense in this prosecution. We emphasize that we decide
only that a challenge to a local board on the ground that a majority of its
members are not residents of the area in which the local board has jurisdiction
may not be first asserted as a defense to criminal proceedings under the
circumstances presented by this record, i. e., where no specific allegation of
discrimination, bias, or prejudice has been lodged against the board.
12
Notes:
1
The members of local boards shall be citizens, male or female, of the United
States who shall be residents of the county in which their local board has
jurisdiction.
2
A registrant has the right to appear before his local board to contest his
classification, 32 C.F.R. 1624.1, 1624.2, and to appeal to the state appeal
board from an adverse decision, 32 C.F.R. 1624.2 (e), 1624.13. A further
appeal may be taken by the registrant to the National Selective Service Appeal
Board if one or more members of the state appeal board dissents from the
board's decision, 32 C.F.R. 1627.3
Military Selective Service Act of 1967, 10(b) (3). Local board areas are
established by the State Director of Selective Service, 32 C.F.R. 1604.51,
who is himself appointed by the President of the United States upon the
recommendation of the state's governor, 32 C.F.R. 1604.11. Local board
members are also appointed by the President upon the Governor's
recommendation, 32 C.F.R. 1604.52(b)
Appeals from board decisions are not limited to the registrant. The state director
or national director may appeal to the National Selective Service Appeal Board
from any determinations of the state appeal board, 32 C.F.R. 1627.1.
The Military Selective Service Act of 1967, like the present regulation, requires
only that "each member of any local board shall be a civilian who is a citizen of
the United States residing in the county or political subdivision corresponding
thereto in which such local board has jurisdiction. * * *" 50 App.U.S.C.
460(b) (3)