422 F2d 1327 United States v. Thomas

422 F.2d 1327

UNITED STATES of America, Plaintiff-Appellee,
Craig Malone THOMAS, Defendant-Appellant.

No. 24749.

United States Court of Appeals, Ninth Circuit.

February 9, 1970.

Richard Weinstein (argued), San Francisco, Cal., for defendant-appellant.

Paul G. Sloan (argued), Asst. U. S. Atty., Cecil F. Poole, U. S. Atty., San Francisco, Cal., for plaintiff-appellee.

Before BARNES, BROWNING and WRIGHT, Circuit Judges.


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Craig Malone Thomas appeals from a judgment finding him guilty of violating 50 U.S.C.App. § 462, refusal to submit to induction. The induction order upon which he was convicted resulted from his having been processed as a "delinquent" for "failure to cooperate and complete" his Armed Forces physical examination following his classification as I-A. We reverse.


In Gutknecht v. United States, 396 U.S. 295, 90 S.Ct. 506, 24 L.Ed.2d 532 (dec. Jan. 19, 1970,) the delinquency regulations used here were held to be unauthorized by statute. See also Breen v. Selective Service Local Board No. 16, 396 U.S. 460, 90 S.Ct. 661, 24 L.Ed.2d 653 (dec. Jan. 26, 1970). For the reasons given in Gutknecht, supra, we hold that Thomas did not fail to exhaust his administrative remedies. Finally, having classified him delinquent, it must be assumed absent a showing to the contrary that the board followed the regulatory command (32 C.F.R. § 1642.13) and accelerated his induction which, in turn, affected the registrant's substantial rights. United States v. Baker, 416 F.2d 202, 204-205 (9th Cir. 1969).