United States of America, Plaintiff-appellee, v. Roger Talbot Alvarado, Defendant-appellant, 444 F.2d 255 (9th Cir. 1971)

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U.S. Court of Appeals for the Ninth Circuit - 444 F.2d 255 (9th Cir. 1971) June 21, 1971

Norman Leonard, of Gladstein, Andersen, Leonard & Sibbett, San Francisco, Cal., for defendant-appellant.

James L. Browning, Jr., U. S. Atty., F. Steele Langford, Chief, Crim. Div., John G. Milano, Asst. U. S. Atty., San Francisco, Cal., for plaintiff-appellee.

Before ELY, WRIGHT and KILKENNY, Circuit Judges.


Alvarado appeals his conviction for refusing induction into the armed forces in violation of 50 U.S.C. App. § 462. We affirm.

On April 21, 1967, Alvarado was mailed an order to report for induction on May 10, 1967. Thereafter, on April 27 he requested a copy of Selective Service Form 150 in order to claim a I-O deferment as a conscientious objector. The local board supplied the form, considered it upon return and concluded that re-opening was not required.

(1) Alvarado's contention that the local board's consideration of his request amounted to re-opening under Miller v. United States, 388 F.2d 973 (9th Cir. 1967) is without merit since the local board must give some consideration to his showing before it can determine whether it amounts to "circumstances beyond his control." 32 C.F.R. § 1625.2. See United States v. Price, 427 F.2d 162, 163 (9th Cir. 1970); United States v. Bowen, 423 F.2d 266, 267 (9th Cir. 1969).

(2) His claim that the local board was required to re-open because he made a prima facie showing is foreclosed by Ehlert v. United States, 402 U.S. 99, 91 S. Ct. 1319, 28 L. Ed. 2d 625 (1971).