United States of America, Appellee, v. David B. Troutman, Appellant, 425 F.2d 261 (8th Cir. 1970)

The Supreme Court by a per curiam decision and order dated February 24, 1970, granted certiorari on our judgment affirming defendant's conviction for failure to report for induction in violation of 50 U.S.C.A. App. § 462. The Supreme Court vacated our judgment and remanded the case to us for consideration in light of Gutknecht v. United States, 396 U.S. 295, 90 S. Ct. 506, 24 L. Ed. 2d 532, decided subsequent to our affirming opinion.

It clearly appears from our opinion reported at 410 F.2d 810 that defendant at the time he was ordered to report for induction was over twenty-six years of age. Assuming without so deciding that the I-A classification is valid, defendant would under the regulations fall in category 5 of I-A classification and consequently, apart from the Board's reliance upon the delinquency determination, defendant would not have to be included in the group required to report for induction at the time the order was entered.

Gutknecht squarely holds that the regulations accelerating induction by reason of delinquency have not been authorized by Congress and that delinquency cannot be made the basis for accelerated induction. Under the holding of the Supreme Court in Gutknecht, a reversal of the judgment of conviction is required.

The judgment of conviction is reversed and this case is remanded to the District Court to vacate the judgment of conviction and to dismiss the indictment.

Reversed and remanded.