459 F2d 1035 United States v. Brandt

459 F.2d 1035

UNITED STATES of America, Appellee,
Peter Christian BRANDT, Appellant.

No. 71-2747.

United States Court of Appeals,
Ninth Circuit.

April 27, 1972.

Gary A. Patton (argued), Santa Cruz, Cal., for appellant.

John F. Cooney, Jr., Asst. U. S. Atty. (argued), John G. Milano, Jerry Cimet, Asst. U. S. Attys., James L. Browning, Jr., U. S. Atty., San Francisco, Cal., for appellee.

Before KOELSCH, HUFSTEDLER, and GOODWIN, Circuit Judges.


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Peter Brandt was convicted of refusing to submit to induction into the Armed Forces, a violation of 50 U.S.C. App. Sec. 462, and he appeals.


He asserts that the order to report for induction was void because it was mailed to him more than one year after his qualifying physical examination. He was given the usual examination at the induction center and found qualified for induction, but he contends that this examination did not satisfy the relevant Selective Service and Army regulations. These points were all raised, and found insufficient to void the induction order, in United States v. Wendt, 452 F.2d 679 (9th Cir. 1971).


Brandt nonetheless urges that United States v. Baray, 445 F.2d 949 (9th Cir. 1971) requires reversal. In Baray, there was a prejudicial failure to reclassify the registrant after a physical examination had found him disqualified for service. No such facts are present in Brandt's case, and it presents no substantive points not concluded by United States v. Wendt, supra.


An alternate ground urged for reversal requires little discussion. Brandt failed to apply for conscientious-objector status, contending that to do so would be a useless act. He asserted that the local board had a reputation for granting CO classification under such rigorously limited circumstances that he would be wasting his time. This failure to seek, much less exhaust, an administrative remedy precludes Brandt's present challenge to the induction order.