United States of America, Appellee, v. Milwood W. C. Hughes, Jr., Defendant-appellant, 490 F.2d 597 (2d Cir. 1974)

Milwood W. C. Hughes, Jr., appeals from a judgment of conviction for failure to report for induction into the armed forces, 50 U.S.C. App. 462(a), after a non-jury trial in the United States District Court for the Southern District of New York, Irving Ben Cooper, J., 364 F. Supp. 310 (1973). Appellant was sentenced as a young adult offender to six months in prison and 18 months probation thereafter.

Appellant's basic claim is that the failure of appellant's local board to act upon his allegedly timely request for reclassification vitiated the induction order. Appellant, a permanent resident alien from British Honduras, was supposed to report for induction on July 16, 1970. A few days prior to that date, appellant allegedly returned to British Honduras and mailed to his local board a letter requesting reclassification under 32 C.F.R. 1622.42(c)¹  as an alien 'who has departed from the United States.' The letter was dated July 14, but was not received by the local board until July 20. The stated reason for the departure was that appellant's 'kid brother is ill,' thus creating an 'emergency.' While the record hardly justifies this characterization, but does make clear appellant's evasive tactics, we need not tarry over his good faith or lack of it. Although the circumstances were curious,²  we may assume, as did Judge Cooper, that the letter was actually mailed before July 16. However, we agree with the trial judge that the controlling date is when the request for reclassification was actually received by the local board. United States v. Baldridge, 454 F.2d 403 (1st Cir. 1972); United States v. Daniell, 435 F.2d 834 (1st Cir. 1970) (per curiam), cert. denied, 401 U.S. 982, 91 S. Ct. 1201, 28 L. Ed. 2d 334 (1971).

The claim that Local Board Memorandum No. 72³  requires a different result is without merit. That Memorandum clearly applies only to specified situations where the registrant's response is triggered by board action and restricted to specified time limits.⁴  United States v. Baldridge, supra, 454 F.2d at 404-405. Here, Hughes presumably was not responding to the induction order, but to his brother's alleged illness. Since appellant's request for a change in classification was received by the local board after the date scheduled for his induction, he was required to obey the induction order. It may be that a situation will arise where an unusual delay in the mails or some other equitable circumstance would raise due process questions if a mailed request for reclassification was therefore received too late to be considered. See id.; Blades v. United States, 407 F.2d 1397, 1399 n. 1 (9th Cir. 1969). But this is far from such a case.

Judgment affirmed.