416 F2d 443 United States v. Scott

416 F.2d 443

UNITED STATES of America, Plaintiff-Appellee,
v.
Peter Jerry SCOTT, Defendant-Appellant.

No. 23516.

United States Court of Appeals Ninth Circuit.

Sept. 17, 1969.

J. B. Tietz (argued), Los Angeles, Cal., for appellant.

Michael Lightfoot (argued), Asst. U.S. Atty., Wm. Matthew Byrne, Jr., U.S. Atty., Robert L. Brosio, Asst. U.S. Atty., Crim. Div., Arnold G. Regardie, Asst. U.S. Atty., Los Angeles, Cal., for appellee.

Before HAMLEY, BROWNING, and ELY, Circuit Judges.

PER CURIAM:

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1

Scott appeals his conviction for refusal to submit to induction under the Universal Military Training and Service Act, 50 U.S.C. App. 462. Seven days after his local board issued an order of induction, Scott requested a Special Form for Conscientious Objectors, SSS Form No. 150. The board immediately complied with this request. It sent him the form by special delivery mail, but since there were then only eight days remaining before his induction date, he was directed to return the completed form within twenty-four hours. Scott failed to return the form within the specified period. In fact, he never returned it. In this appeal, he contends that the fixing of the abbreviated period requires reversal.

2

At the time of Scott's request, local boards generally followed the practice of allowing registrants ten days for completing and returning Conscientious Objector Forms; however, there was no regulation which prescribed a specified period. In the circumstances, we cannot accept Scott's contention that his board acted arbitrarily or exceeded the bounds of allowable discretion.

3

Scott also contends that the letter by which he requested the Conscientious Objector Form did, of itself, constitute a 'prima facie' claim for exemption, requiring the board to reopen his classification file. See Petrie v. United States, 407 F.2d 267 (9th Cir. 1969). As previously stated, the letter was not sent until after Scott had received his notice to report for induction. Even if we assume that the letter, quoted in the margin,1 constituted a timely claim, it was nothing more than a request for the SSS Form No. 150. In his letter, the registrant did not pretend to recite facts which might have constituted such a 'prima facie' claim as would require reopening and consequent interruption of the Selective Service process.

4

Affirmed.

1

The letter in question was dated June 27, 1967, and was addressed to Local Board No. 94. It reads:

'Please postpone my induction date of July 5, 1967. Please send me the SSS Form 150 for Conscientious Objectors. Thank You.'