Gerald Robert Sheridan, Appellant, v. United States of America, Appellee, 483 F.2d 169 (8th Cir. 1973)

In a trial to the court¹  without a jury Gerald Robert Sheridan was convicted of failure to report for and submit to induction into the Armed Forces of the United States in violation of Title 50 U. S.C. App. Sec. 462. He received a two-year sentence, with 18 months thereof suspended. A timely appeal followed.

Sheridan registered with Local Board No. 105 in Duluth, Minnesota, on March 28, 1969, and received a I-S-H classification at that time as he was still in high school. On June 21, 1969, he was classified I-A and was sent the usual notice of classification and notice of his right to a personal appearance and appeal. He took no appeal at that time. On June 30, 1969, he submitted a current information questionnaire in which he indicated that he would be at Creighton University, Omaha, Nebraska for the fall 1969 school year. On July 23, 1969, he wrote to the board and indicated that he did not believe that his I-A classification was correct, that he was entitled to a student deferment. He requested a personal appearance, "unless this can be cleared up through the mail." The local board sent him SS Form 104, which is used to request a student deferment, requested him to submit it to the board "when [he became] a full-time student," and told him that the college should forward SS Form 109. Neither of these forms was returned to the board.

However, on October 13, 1969, the board received a card from Creighton University, signed by Sheridan, advising the board that Sheridan was enrolled as a full-time student and that he might expect to graduate in June 1973. His file remained dormant for one year. In October 1970, he was ordered to and did report for a physical examination. He was found medically acceptable for induction. On November 30, 1970, the board received a student certificate from the college of St. Scholastica, Duluth, Minnesota. Sheridan also filed at that time the SS Form 104 seeking a student deferment. In the form he indicated that he was asked not to return to Creighton because of his poor scholastic performance and that he had earned only nine credits toward his ultimate graduation during the preceding year; 180 credits were required for graduation in the program he was taking.

On December 21, 1970, the board advised Sheridan that it had reviewed his file and determined that there was no justification for changing his classification from I-A. On January 28, 1971, he was ordered for induction.²  This induction date was postponed until March 30, 1971, at which time he refused induction.

Sheridan contends that he was denied due process in the board's refusal to grant him a student deferment in December 1970.

The statutory authority for the granting of student deferments during the period at issue is set forth in Title 50 U. S.C. App. Sec. 456(h) (1).³  Pursuant to the authority and mandate of this section the Selective Service adopted, and had in effect during the period of time when Sheridan's request for deferment was considered, a regulation pertaining to student deferments. 32 C.F.R. Sec. 1622.25.⁴ 

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It is the responsibility of the registrant to request a student deferment, 32 C.F.R. Sec. 1622.25(a), and to submit evidence that he is entitled to such a deferment. 32 C.F.R. Sec. 1622.25(d); United States v. Wilbur, 427 F.2d 947, 949 (9th Cir.), cert. denied, 400 U.S. 945, 91 S. Ct. 250, 27 L. Ed. 2d 250 (1970). We need not decide, however, whether the unofficial notification by the college, even though signed by Sheridan, was sufficient to request the student deferment as the District Court held that, even if the reclassification were required at the time the local board received the card in 1969, the board's failure to reclassify in 1969 furnished no defense to the offense charged.⁵ 

The District Court thus, in effect, treated Sheridan as having a de facto II-S classification for the 1969 school year, which classification was subsequently lost by his poor scholastic performance. The question we here consider is whether or not the board's failure to classify Sheridan II-S in 1969 could furnish him a defense to the 1971 induction order and subsequent prosecution. The actual effect of the board's failure to properly classify Sheridan in 1969 was that the board did not have to reclassify him I-A in 1970 when he was no longer eligible for the student deferment. This had the effect of denying Sheridan a personal appearance and an appeal from the reclassification.

It is clear that Sheridan was not entitled to a student deferment at the time he applied for it in December 1970. The statute provided for a deferment only for those students who were then "satisfactorily pursuing a full-time course of instruction." 50 U.S.C. App. Sec. 546(h) (1). The regulation previously quoted provides that in order to be satisfactorily pursuing a course of study the student must have completed a proportional number of credits during the prior 12-month period (academic year) to complete his degree within the normal period of time. Normally, for a four-year program, a registrant would be expected to earn 25 per cent of his credits during the first year; Sheridan had earned only 5 per cent.

Even though we assume that the board improperly failed to grant Sheridan a deferment during his first year of college (as was argued at the trial) based only on the card which Creighton University sent to the board, he was not entitled to have the deferment continued during his second year as his "pursuit" was no longer satisfactory. This Court has previously determined that procedural errors which do not result in "substantial prejudice" are no defense to an otherwise lawful induction order. United States v. Chaudron, 425 F.2d 605, 608 (8th Cir.), cert. denied, 400 U.S. 852, 91 S. Ct. 93, 27 L. Ed. 2d 89 (1970). Like the trial court, we cannot see how the board's failure to classify Sheridan II-S for the 1969-70 school year could have resulted in prejudice. He was not ordered for induction during the academic year for which such a deferment would have been effective. During the year of his induction he applied for the deferment and his application was considered by the board. Had he possessed, during the prior school year, a student deferment, he would have lost it for failure to satisfactorily pursue his course of instruction. United States v. Rundle, 413 F.2d 329 (8th Cir. 1969),⁶  the only authority cited by Sheridan, is distinguishable from the instant case. That opinion shows that Rundle's selective service file reflected a series of changes in classification from I-A to II-S and back throughout Rundle's academic career, apparently due to Rundle's failure to pay his college fees when due. At the time the induction notice was sent, May 5, 1967, Rundle was classified I-A. Immediately thereafter the board received a notice from the college that he was a full-time student. Rundle refused induction and was prosecuted and convicted of the draft offense, based on the May 5, 1967 order for induction.

A majority in Rundle viewed its facts as presenting a mandatory reopening situation and, since a reopening would have automatically required the cancellation of the induction order upon which the prosecution was based, 32 C. F.R. Sec. 1625.14, found prejudice. In the instant case no mandatory reopening situation existed that would have required the cancellation of any outstanding orders for induction pursuant to the regulations. 32 C.F.R. Sec. 1625.14. Here, the registrant did not present facts concerning his satisfactory pursuit of his course of instruction that would have justified a change in the registrant's classification. 32 C.F.R. Sec. 1625.2. The board, therefore, properly refused to reopen the registrant's classification. 32 C.F.R. Sec. 1625.4.

The cases discussed by the dissent present factual situations where the registrant presented a prima facie entitlement to the board. We do not view these as analogous to the instant case because of the undisputed evidence in this case that the defendant was no longer entitled to the deferment. In Mulloy v. United States, 398 U.S. 410, 90 S. Ct. 1766, 26 L. Ed. 2d 362 (1970), the leading case where the defendant had made a prima facie showing but was denied a reopening by the board, the Court recognized that the classification need not be reopened if the truth of the new allegations, establishing the prima facie case, was "conclusively refuted by other reliable information in the registrant's file." Mulloy v. United States, supra at 416, 90 S. Ct. at 1771. Here no prima facie case was made. No refutation was even required. The registrant's own application on its face shows he did not qualify for a II-S for the 1970 school year. Under these circumstances the registrant would not be entitled to the procedural rights of a personal appearance and an appeal.

Many of the other cases cited in the dissent involved the situation present in United States v. Pickett, 460 F.2d 1255 (8th Cir. 1972). In those cases, all occurring after the Selective Service had ceased to defer graduate students, the registrants had received notices of induction while enrolled in school. The courts held that they were entitled to a I-S deferment until the end of the school year as provided by statute. The boards, however, only postponed their induction until the end of the school year. First, the prima facie showing that they were entitled to a deferment was sufficient to trigger the requirement that their files be reopened, and thus have all outstanding orders of induction canceled. This in itself would have been sufficient to prevent any prosecution on the void orders. The courts went on to hold that while the registrants were under the induction notices they were prevented from seeking any other form of deferment, such as conscientious objector or occupational deferments, and this sufficed to show prejudice in the procedure followed by the boards. Unlike the registrants in those cases, however, Sheridan was not under induction orders during the period following the board's procedural error, if it can thus be characterized. Sheridan was retained in a I-A classification, but received no notices of induction during his first year of college at Creighton, or until five weeks after the board refused to change his classification on December 21, 1970.

The board's procedure did not prejudice the presentation of his conscientious objector claim. Sheridan could have presented this claim at any time prior to the induction notice. He further had time to present his claim subsequent to the board's action in December and prior to his induction notice of January 28. He did not even request SS Form 150 until after receipt of the induction notice, indicating that his was a late maturing claim which would not have been presented at a hearing in December.

Sheridan asks this Court to hold that he had established a prima facie case which would warrant the reopening of his classification on the showing that it was still possible for him to graduate by the end of his fourth year without regard to the number of credits which he earned in the first year. To do so would be to disregard the statutory scheme established by Congress which authorized the Executive Branch to determine what would constitute satisfactory pursuit of a course of study. In determining eligibility for a continuing deferment for university or college attendance, a check of the past year's performance of a student at that university is a reasonable guide to determine his progress. When he fails to meet the schedule of credits required by the regulations, his basis for scholastic deferment vanishes.

In conclusion, we think the dissent's reference to the board's action in not classifying Sheridan II-S during the 1969 school year as "callous" merits discussion. Sheridan informed the board during the summer of 1969 that he intended to enroll at Creighton for his collegiate studies. He received from the board its SS Form 104, which he was instructed to complete after enrolling in college, and SS Form 109, which Creighton was required to complete and forward. Sheridan could not be placed in II-S until he actually commenced his course of instruction. Had he then used the proper forms that had been previously sent to him, the board undoubtedly would have placed him in II-S for that school year. He carried the burden of making a proper request and demonstrating to the board his entitlement to the scholastic deferment. United States v. Wilbur, supra. This he did not do, but Creighton itself sent a facsimile type form, signed by Sheridan, showing his enrollment. We are not overly concerned on matters of form and would probably hold that Creighton's form was sufficient notification, if properly brought to the attention of the board. Although this form was placed in Sheridan's file, it was not recognized by the board's clerical personnel as the normally-used form to request a II-S deferment. The clerical personnel failed to realize the significance of Creighton's facsimile form. This miscue does not demonstrate a callous disregard of the registrant's rights. The District Court recognized and treated the registrant as having a de facto deferment for the 1969 school year. If his induction order had been issued in that school year, he would have been prejudiced by the failure of the board not to recognize the significance of the Creighton form, and we would hold that any induction order issued during that year was invalid.

However, it was incumbent upon Sheridan, in order to maintain a II-S deferment from year to year, to provide the board with information showing a satisfactory pursuit of a full-time course of instruction during the prior year. This he did not do on the basis of his record at Creighton, and, therefore, he was not entitled to a deferment for the 1970-71 school year. Since clearly under the regulations Sheridan had not satisfactorily pursued a course of instruction during the prior year, the board properly refused his request of November 30, 1970, for a II-S deferment. Under these facts, he was not prejudiced. Even at this stage, Sheridan could have applied for a C-O classification. He, however, waited until after the induction order was issued on January 28, 1971, to apply for a C-O classification.

We think his induction order at that time was valid. When he refused to be inducted, another person had to be called in his place. We fail to see how he was ill treated. He alone made his decision not to be inducted and to suffer the consequences. If it be the law that every procedural action or step taken by a board must be perfect in all respects in order to issue a valid order of induction, then any error gives rise to a defense against an induction order. However, not every defect in processing a registrant's file should be a defense to an induction order. A registrant who has received substantially fair consideration of his claim and has been given the opportunity to receive deferments accorded under the law to those in like situations should be amenable to the induction laws. Whether or not he chooses to respond to the obligations of that law is a matter for his own decision.

The judgment is affirmed.

LAY, Circuit Judge (dissenting).

I would reverse.¹ 

In the host of selective service cases which have been passed upon by the courts in recent years, this becomes the only decision which holds that a local draft board may justify by subsequent events postponement of a registrant's induction in lieu of granting him his rightful statutory deferment. The concomitant denial of due process flowing from the registrant's loss of his right to a personal appearance and an administrative appeal not only is contrary to the law of this circuit but the law everywhere else. See, e. g., United States v. Rundle, 413 F.2d 329, 332-334 (8 Cir. 1969); Davis v. United States, 410 F.2d 89, 95-96 (8 Cir. 1969); United States ex rel. Vacca v. Commanding Officer, Ft. Hamilton, 446 F.2d 1079, 1083 (2 Cir. 1971); United States v. Feldman, 437 F.2d 888, 889 (9 Cir. 1971); United States v. Zablen, 436 F.2d 1075 (9 Cir. 1971); Magaro v. Cassidy, 426 F.2d 137, 141-142 (5 Cir. 1970); Nestor v. Hershey, 138 U.S.App.D.C. 73, 425 F.2d 504, 523-526 (1969); United States v. Turner, 421 F.2d 1251, 1252-1253, 1256 (3 Cir. 1970); United States v. Freeman, 388 F.2d 246, 249-250 (7 Cir. 1967), rehearing denied en banc (1968); Miller v. United States, 338 F.2d 973, 976-977 (9 Cir. 1967); Stain v. United States, 235 F.2d 339, 343 (9 Cir. 1956); Olvera v. United States, 223 F.2d 880, 883-884 (5 Cir. 1955), overruled on other grounds, Robertson v. United States, 404 F.2d 1141 (5 Cir. 1968), reversed on other grounds, 417 F.2d 440 (5 Cir. 1969); United States v. Vincelli, 215 F.2d 210, 213 (2 Cir. 1954), rehearing denied 216 F.2d 681; United States ex rel. Berman v. Craig, 207 F.2d 888, 890-892 (3 Cir. 1953); United States ex rel. Mulford v. Commanding Officer, 338 F. Supp. 1120, 1124 (E.D.N.Y. 1971); Waguespack v. Tarr, 317 F. Supp. 448, 451-452 (E.D. La. 1970); Weppler v. Hershey, 308 F. Supp. 447, 448-449 (N. D. Ill. 1969); Williams v. Hershey, 307 F. Supp. 409, 411-412 (W.D. Wis. 1969); Turley v. Selective Service System, Local Board No. 134, 301 F. Supp. 845, 853-854 (C.D. Cal. 1969). Cf. Mulloy v. United States, 398 U.S. 410, 416-418, 90 S. Ct. 1766, 26 L. Ed. 2d 362 (1970); Simmons v. United States, 348 U.S. 397, 75 S. Ct. 397, 99 L. Ed. 453 (1955); United States v. Bender, 469 F.2d 235, 239 n.5 (8 Cir. 1972); United States v. Pickett, 460 F.2d 1255 (8 Cir. 1972); McLain v. Selective Service Local Board No. 47, 439 F.2d 737, 739 n.3 (8 Cir. 1971); United States v. Kelly, 473 F.2d 1225, 1227-1228 (9 Cir. 1973); United States v. Fry, 203 F.2d 638 (2 Cir. 1953); United States v. Schmidt, 313 F. Supp. 456, 460 n.2 (D. Minn. 1970); United States v. Walsh, 279 F. Supp. 115, 121 (D. Mass. 1968).

The majority finds that the Board's failure to grant Sheridan a II-S deferment in 1969 resulted in no prejudice to him. The "no prejudice" thesis is premised on the fact that Sheridan satisfactorily completed only nine hours of study his first year of enrollment at Creighton University and therefore his subsequent enrollment in the fall of 1970 at St. Scholastica College would have no longer entitled him to a II-S classification.²  It is then reasoned that the Board would have had to reclassify Sheridan as I-A in any event and therefore the Board's "procedural irregularity" in failing to properly grant his lawful deferment in 1969 was a mere technicality resulting in no prejudice. As indicated, the main difficulty with such hindsight reasoning is that it is contrary to the overwhelming case law in the country. Numerous courts have held that an unlawful denial to reopen is not mooted because a registrant is no longer a student or otherwise fails to qualify for a student deferment. See, e.g., United States v. Rundle, 413 F.2d 329 (8 Cir. 1969); Nestor v. Hershey, 425 F.2d 504, 523-526 (D.C. Cir. 1969); United States ex rel. Mulford v. Commanding Officer, 338 F. Supp. 1120, 1124 (E.D.N. Y.1971); Waguespack v. Tarr, 317 F. Supp. 448, 451-452 (E.D. La. 1970); Weppler v. Hershey, 308 F. Supp. 447, 448-449 (N.D. Ill. 1969); Williams v. Hershey, 307 F. Supp. 409, 411-412 (W. D.Wis.1969); Turley v. Selective Service System, Local Board No. 134, 301 F. Supp. 845, 853-854 (C.D. Cal. 1969). Cf. United States v. Zablen, 436 F.2d 1075 (9 Cir. 1971). Contra Robinson v. Hershey, 2 SSLR 3191 (7 Cir. 1969). Subsequent events should never determine the loss of substantive rights flowing from a denial of procedural fair dealing. Such reasoning constitutes a dangerous precedent.

In Mulloy v. United States, 398 U.S. 410, 90 S. Ct. 1766, 26 L. Ed. 2d 362 (1970), the Supreme Court emphasized the importance of the procedural safeguards incorporated in the reopening of a registrant's classification. The petitioner in Mulloy presented a credible claim for a conscientious objector exemption to his Local Board, but the Board refused to reopen his classification although they permitted him to appear. The Court said:

"Because of the narrowly limited scope of judicial review available to a registrant, the opportunity for full administrative review is indispensable to the fair operation of the Selective Service System. Where a prima facie case for reclassification has been made, a board cannot deprive the registrant of such review by simply refusing to reopen his file. . . .