426 F.2d 286 | 4th Cir. | 1970
Concurrence Opinion
(concurring) :
Although I dissented in United States v. Broyles, 423 F.2d 1299 (4 Cir. 1970),
However, even without the binding authority of the majority decision in Broyles, I would have no reason to disagree with the court’s decision today that the registrant here made out a prima facie case of entitlement — to the. 1-0 classification and there is nothing in the registrant’s file to provide a basis in fact for the local board’s denial of the desired classification. The factors which prompted my dissent in Broyles simply are not present here.
Lead Opinion
When defendant registered with his local board he claimed to be a conscientious objector opposed to participation in war in any form and opposed to noncombatant training and service in the Armed Forces. The board first gave him a student deferment; and when he ceased to be a student, the board classified him I-A-O. Defendant appealed his I-A-0 classification, urging that he should have been classified I-O. His claim was rejected and he was ordered to report for induction and assignment to noncombatant duty. Neither in notices to him nor in the board’s minutes was any reason stated why defendant’s claim to be classified 1-0 was denied.
Defendant’s selective service file established a prima facie case of entitlement to a 1-0 classification. It follows that the failure to assign any reason for its rejection renders invalid the conviction for failure to report for induction based upon the invalid classification. United States v. Broyles, 423 F.2d 1299 (4 Cir. 1970); United States v. James, 417 F.2d 826 (4 Cir. 1969). Defendant was entitled to acquittal.
Reversed.
