421 F2d 697 United States v. Powell

421 F.2d 697

UNITED STATES of America, Appellee,
Robert Allen POWELL, Appellant.

No. 23670.

United States Court of Appeals Ninth Circuit.

Jan. 7, 1970.

Kent Ten Brink (argued), Los Angeles, Cal., for appellant.

David Wallen (argued), David H. Fox, Robert A. Browning, Robert L. Brosio, Asst. U.S. Attys., Wm. Matthew Byrne, Jr., U.S. Atty., Los Angeles, Cal., for appellee.

Before BARNES and ELY, Circuit Judges, and PLUMMER,1 District judge.


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This appeal follows Powell's conviction for having refused to submit to induction into the Military Service. 50 U.S.C.App. 462.


Powell's claim to conscientious objector status was considered by his local board and rejected. He was classified 1-A, eligible for military service, and advised of that fact. He was also advised by his local board of his right to appeal his classification, but he failed to avail himself of that right. The District Court held that since Powell did not exhaust the administrative remedies available to him, he could not challenge the board's classification in the courts. The precise question was under consideration by our court, en banc, at the time of oral argument of the case at hand. We have now resolved it, and our disposition is fatal to Powell's appeal. Lockhart v. United States, 420 F.2d 1143 (9th Cir. Dec. 18, 1969) (en banc).




Honorable Raymond E. Plummer, United States District Judge, District of Alaska, sitting by designation