United States of America, Plaintiff-appellee, v. Aldo Malatesta, Defendant-appellant, 447 F.2d 1365 (9th Cir. 1971)

Appellant asks that his conviction for failure to submit to induction be set aside because (1) 204 days elapsed between his first order to report and the final date when his refusal resulted in prosecution, and (2) the board should have reopened his classification as he made out a prima facie case for 1-Y classification.

His first claim is that the board is permitted extensions of only 120 days from the original order and if the extension is beyond that time there must be a new order under 32 CFR 1632.2. United States v. Lonidier, 427 F.2d 30 (9 Cir. 1970). We find here the delay chargeable to the board to be less than 120 days and delay occasioned by the registrant should not be considered in his favor in this context. United States v. Foster, 439 F.2d 29 (9 Cir. 1971), approved in United States v. Munsen, 443 F.2d 1229 (9 Cir. 6/11/71).

We cannot find from the record that appellant made out a prima facie case requiring the board to reopen and reclassify appellant 1-Y. United States v. Kohls, 441 F.2d 1076 (9 Cir. 1971).

Affirmed.