United States of America, Plaintiff-appellee, v. Andrew Joseph Schaack, Defendant-appellant, 466 F.2d 762 (7th Cir. 1972)

Defendant Schaack appeals from his conviction of refusal to submit to induction.²  We affirm.

The only issue raised by Schaack is the constitutionality of that part of 50 U.S.C.App. Sec. 456(a) (1) which provides that "any person who subsequent to June 24, 1948 serves on active duty for a period of not less than eighteen months in the armed services of a nation with which the United States is associated in mutual defense activities . . . may be exempted from training and service, but not from registration."

During 1964-65 Schaack, a native of Luxembourg, served nine months in the Army of Luxembourg and completed his military service there. In October, 1965, he emigrated to the United States and thereafter registered with the Illinois Selective Service System. He was subsequently ordered to report for induction on March 28, 1968. Schaack reported as ordered, but refused to submit, and his indictment, trial and conviction followed.

After close of the evidence at the trial, Schaack's attorney moved for an acquittal on the ground of denial of due process because of alleged discrimination and arbitrariness in the eighteen month requirement of Sec. 456(a) (1)³  and because that requirement was not reasonably related to any legitimate congressional purpose.

The district court denied the motion, finding that the congressional purpose in the eighteen month limitation was "undoubtedly the maintenance of our defense capabilities" by strengthening the military force of our allies without subjecting their military veterans emigrating to this country to undue "double obligation of service;" and that some "minimum length of service was necessary." The court found no invidious discrimination in Congress' setting the limitation at eighteen instead of nine months.

Schaack argues that the "eighteen months" provision is an arbitrary classification and in violation of his Fifth Amendment due process right. He argues here that the eighteen month requirement is not supported by "any demonstrable" legitimate congressional objective. He states that neither Congress in enacting Sec. 456(a) (1) nor the President in promulgating the implementary regulation 32 C.F.R. Sec. 1622.40(a) (4) has made a fair distinction between the eighteen month limitation and his nine month Luxembourg Army service and that the distinction is invidiously discriminatory. No case deciding the precise question before us has been cited or found, but we find no merit in Schaack's argument.

We hold that the classification has a rational basis and is not invidiously discriminatory. We agree with the district court finding of the congressional goals. The congressional intentions were to implement our own defenses by strengthening the defenses of our allies, to maintain friendship with our allies, and to further prudent diplomacy in our foreign affairs. We think that these goals are of high legislative priority and are clear from the enactment, and terms, of the statute. How to achieve the appropriate balance in serving these vital national interests clearly called for legislative expertise.

"The power of Congress to classify and conscript manpower for military service is 'beyond question.' " United States v. O'Brien, 391 U.S. 367, 377, 88 S. Ct. 1673, 1679, 20 L. Ed. 2d 672 (1968). This power extends to establishment of a "system of registration for individuals liable for training and service" and to requiring cooperation of individuals within the registration system. And the promulgation of regulations by the President⁴  with respect to registration and eligibility classification is "a legitimate and substantial" aid in making the system work. Id.

It is true that discrimination "may be so unjustifiable" as to violate the Fifth Amendment due process right. Bolling v. Sharpe, 347 U.S. 497, 499, 74 S. Ct. 693, 98 L. Ed. 884 (1954). The Ninth Circuit, however, in Smith v. United States, 424 F.2d 267, 269 (9th Cir. 1970), relied, inter alia, upon Bolling v. Sharpe, supra, in rejecting a contention that the Selective Service Act violated the Fifth Amendment due process clause in exempting "men under 18 1/2 and over age 26" from the draft. The court stated that the Fifth Amendment "merely requires" that all legislative classifications have a reasonable basis.

32 C.F.R. Sec. 1622.40 has a wide range of Class IV-A categories, with varying periods of prior service requirements which qualify registrants for exemption from future service.⁵ 

The exemption provision of Sec. 456(a) (1) before us is limited as follows: "except that no such exemption shall be granted to any person who is a national of a country which does not grant reciprocal privileges to citizens of the United States." The reciprocal qualification is specified in this way: ". . . a nation with which the United States is associated in mutual defense activities and which grants exemption from training and service in its armed forces to citizens of the United States who have served . . . in the armed forces of the United States . . . for a period of not less than eighteen months." 32 C.F.R. Sec. 1622.40(a) (4).

It is not disputed that until 1955, when the pertinent provision of Sec. 456(a) was enacted,⁶  there was no exception or credit given for any person who had already served in the armed forces of a foreign ally. In 1955 only Great Britain and Turkey, of our fiftynine associates in mutual defense, required, as we do, twenty-four months of military service. The range of service then required in most of the other fifty- seven associate nations was from fourteen to eighteen months.

We think that, for the reasons, given, it was clearly within the political function of Congress to require that a person serve eighteen months in the armed forces of a foreign ally in order to qualify for the exemption under Sec. 456(a) (1). We cannot say that the congressional classification did not have a rational basis.

We hold therefore that neither the relevant provisions in Sec. 456(a) (1) nor those in 32 C.F.R. Sec. 1622.40(a) (4) violate due process.

Affirmed.