Selective Service Litigation and the 1961 Statute

AuthorBy Colonel William L Shan
Pages02

The major difficulties that h m e plagued the Selective Service Sustem in the mat three wars. varticrlarlu con-

. .

*The opinioni and cmciumne preaented am thore of the ruthor and do not necessarily repire~enr the v i e w of The Judge Advocate General's Sehaol or any other gaiernmental ~gency

**Colonel. JAGC. ARXG ( R e t ) , Deputy Attorney General of CPllfornia; member of the bar af the State of Calliornis: A.B., LL.B., Stanfold Uni-vmity and Law School

'Act of 30 Tun 1967 hlb L. No. 90-40, 5 l(1). 81 Stat. 100, amsnd(nl

50 u s.C App 5 46lIa) (19641 feodihed at 50 U.S.C.

APP. 5 451(a) (SUPP. IV 1969)) For the original text of the 1948 Act, aee 62 Stet. 604 (1948).

:Id, at f 1(12), 81 Stat. 105, omendmg 50 U.S.C.

App. 5 467(cI (1660leodified at 60 U.S.C.

APp. 8 467(c) (SUPP. IV, 1989)).

statute or the regulations to improve or refine procedures. In particular, It will be recommended that at the last stage of the administrative appellate process, the Presidential level, a registrant-appellant should be permitted to have legal counsel to advance his interests

  1. CLASSIFICATIOSS AND SUMERICAL STRENGTH

    The following table shows on a national basis the total number of registrants together with those shown in each Selective Service classification, and also develops the various mdwidual manpower classifications within the Selective Service System as of 31 December 1968.'

    Cb.. SYmbar

    Total .. . .. . . I-A and I-A-0

    Single or married after 26 Auguet 1966 Examined and qudifiedSot examinedInduction OT examination postponed Ordered far induction or examination Pending reelasiihcarion . .Peraanal appearance and appeals ~n p r 0 c e B IDelinquents

    Examined and qualifiedSot examinedInduetian or examination postponed Ordered for induction or examination Pending retlasSihCatLOn .Personal appearance and appesla

    Delinquents

    Married on or before 26 August 1065

    I" pmeeas26 years and older with liability extended Under 18 Yeala of ageI-Y Qualified only I" an emergencyI-C (Induitedi

    1.0 sot examined 1.0 Examined and qlalihed . 1-0 Mlarried, 19 to 26 years Of BKe I-W (At vorklI-W (ReleaaediI-D Members of B relel~e component I-s StstOfDl? ICollegel

    I-s S~afufoig (High Sehoali

    -.

    3 SELECTIII S ~ V I C E jo. 18. no 2. Feb. 1960, st 4. 34

    36,966,712

    1,446,391

    161,lii 363,044

    11,666

    126,980 143,636

    69,136 28.422

    13.126 5.466

    126 661 1,104

    120,596

    416,820

    486,631 2,446,080

    7,032 3,467

    662 6,402 9,262 949,186

    14,712 406,094

    23s

    2,849,989

    Selective Service

    CLnV H"rn*..

    11-A Oeeupational deferment (except

    AgrlCYitYral) 355,296 11-A Apprentice 48,811 11-C Agri~ultu~sldeferment 23,004 11-S Student deferment 1,179,630 111-A Dependency deferment 4,126,064 IV-A Completed service: Sole ~urviving

    SO" 2,936,255

    IV-B Offieiale 81 IV-C Aliens 18,231 IV-D Miniatern, divinrty students 101,315 IV-F Not auaiifled 2 339 os1

    ~, , ~

    V-A Over age liability 16,551,553

    The next table' reflects the manvower call8 from the Devartment of Defense to the Selective Service System for the &ea1 year 1968.

    Jan".V 34,000

    Febmav 23,300 March 41,000 April 48,000 May 44,000 J""e 20,000 July 16,000 Augllit 18,300

    October 13,800

    December 17,500

    Total 295,100

    September 12.200

    November 10,000

    ~

    The total 299.000 men called for the calendar year 1968 represents a slight increase over the 298,559 registrants called during the fiacal year 1967."

    The numerical strength of the armed forces on 31 October 1968, based upon a Department of Defense computation, was 3,464,160 men and women. The division among the services was as follows: Army, 1,496,011; Navy, 763,253; Xarine Corps, 308,356; and Air Force, 896,560.' This was a decrease of 38,633

    'Data extracted from SELECTWE

    SERYICL,

    1965, i d 1s It bhauid be understood That the men delivered to an Armed Forces Examination far Induction Stallan (AFES) in any month will exceed the number of men $peeifled in the csii for that month. BP It /Q foreseen that B certain number of individuals will be rejected for physical and other rea~oni For example, foT the flies1 YDPT 1961, the eslle were for 288,900 men: 345,622 regiatranta were delrvered to AFES io? Induction: 298.559 men were Inducted. See 1867 DIR. OFSELECTWE

    SECWCE Ah". REP.

    3 1561 DIR. OF SELECTIVE SFRYlCE ANN. Rm.

    'Sacramento Union, 13 Dee. 1568, at 8.

    30.

    individuals from the 30 April 1968 comblned strength of 3,492,793.'

    The following dataS show total Selective Service calls, deliveries, and inductions for the fiscal years 1960-1967:

    F d Yes, c4, DdlOrn ildut- 1964 69,500 130,119 90.549 1961 58,000 86,274 61,010 1962 141,500 194,937 167,465 1963 70,000 98,971 11,744 1984 145,000 190,496 150,608 1965 101,300 131,590 103,326 1866 336,530 399,419 346,481 1961 288,900 345.622 298.559

    Total .. 1377,044

    The very extent of the Selective Service operation suggests the probability of some delinquency in registration. The Department of Zustice is responsible for bringing violators of the statute to trial in the federal courts. During fiscal year 1966, although the Department investigated 26,830 cases, it obtained only 333 convictiona; for fiscal year 1967, there were 29,128 investigations leading to 763 convictions; during the period 1 July to 31 December 1967, 13,859 cases were investigated.with a result of 324 convictions? The low number of convictions results from the effort of the Department of Justice to induce delinquents to accept their obligations under the statute. Despite technicai delinquencies, a registrant i s encouraged to complete the Sektire Service process and not to persist in his infraction.

    111. SIGKIFICANT LEGISLATION AND LITIG.4TIOK OF PRIOR YEARS A. THE ACT OF 17 MAY 1917Congress enacted, an 17 May 1917, "An Act to Authorize the President to Increase Tempararily the lIilitars Establishment of the United States," commonly known as the Selective Service Act of 1917.'o There was recognized an obligation to perform military service from the time of the beginning of the war. The statute was conceived as a means of raising an arms and. inci- .Smmrm SERVICE. v01. 18. no. 7, SUI 1966, at 4

    '1961 DIR 01 SELECINE SERVICE

    AFI Rm 30.'FIRST SEMI-ANNUAL REPORT OF THE DIRECTOR. 1 Jul.-31 DPC. 1967, at 11. The failure ai a registrant to repart far induction muet have been "willful." %.a,, with criminal Intent, and not inadvertent in order to support L eonvietion. United Ststes Y. Rabb, 394 F I d 230 (3d Cn 1956)

    "Ch. 15, 40 Stat. 16 (1911)

    Selective SeIvic0 dentally, a navy." The operational details of the system were not set forth within the statute, but were to be promulgated as regulations by the President. There was to be one local board of three n'viliens in each county. No board membe?. wa8 to be ad-soeieted with the military. The local boards were to register, classify, defer, cause to be physically examined, and transport the registrants. Claims for deferment because of occupation were made to a district board of five members chosen on the basis of their knowledge of occupational conditions. Males between the ages 21-30 were required to register, Exempted were certain legislative, executive and judicial officers of the federal and state governments; regular or duly ordained ministers of religion and divinity students in recognized schools: and members of any well-recognized sect whose principles forbade its members to participate in war in any form."

    B. THE SELECTIVE DRAFT LAW CASES

    AND RELATED CASES

    In the Selective Draft Law Cases," the 1911 Selective Service law was upheld as constitutional. The Court reasoned that Congres8 in the exercise of its power to declare war and to raise and support armies may exact military duty at home and abroad from citizens. The Court Baw no illegal delegation of federal power to state officials nor an improper vesting of legislative or judicial authority in administrative officers. The first amend. ment restriction upon the establishment of a religion or an interference with free exercise of religion was not thwarted by 81-lowing exemption to the members of certain religious sects.

    "SELECTWE SERY~CE SYSTEM

    MOROC%~PH

    Ilo. 16, PROBLEMB

    OF SELEETWE

    46 (19521 [hereafter cited 88 Sm.

    SERY P m ~ m ~ s l ,

    "Ch 15, 40 Stat. 76-83 (1917). During the e o u m Of the war, nearly 24,0W,000men, aged la46 years, were registered in civilian boards located in 4,600 communities. 2,810,296 registrants were inducted into the military reniee (SEL. SEW. SYS. MONODRAPH No, 1, BACKDROUND

    OF SEL&CT~

    SERYlCE 31 (1947)), 01 67 per cent of the tatsl war strength (U.S. DEP'T OF ARMY ROTC MANUAL

    KO. 145-20, AMERICAN MIL~TARI Pmcl 1607-1963, at 339 (1956)).

    "245 U.S. 366 (1918). The Federal Enrollment Act Of 3 Mar. 1363, eh. 75, 12 Stat. 781, wae upheld m B state court in Kneedlei V. Lane, 46 Pa.238, 296 (1863). by a 3-2 decision. The Confederate Conscription Aet of 16 Apr. 1862 (Const. & Stats. CSA, 1st Cong., 1st Sess., eh. 31 (1862)) Wae UP'held ~n nu me mu^ deeiriana, ineludlng Barber Y. Irwin, 34 Ga. 28 (1864) deffers Y. Fmr, 33 Ga. 347 (1862); Simmons v Miller, 40 Miss. 19 (18641: Ex parte Coupland, 26 Tex. 387 (1862); Burrough. Y. Peyton, 57 Vs. (16 Gratt.) 470 (1864).

    S I

    S ~ Y I C E

    Military duty was not regarded as repugnant to the thirteenth amendment prohibition upon involuntary servitude.

    The 1917 Act vas held not to violate due process," nor to constitute an unlawful delegation of le~iislatire power to the Secretary of War,' nor to constitute CIBSSlegislation or improper discrimination between classes of persons 1t The federal c o u d were not deprived of a right to pass upon exemptions, as the local boards did not exercise Judicial functions.'. The local boards were not to be considered courts, although the hoards possessed quasi-judicial paweis 1' >loreover, the law was not an infrlngement upon states' rights. as an invasion of the reserved powers of the states, nor was it an interference with the police power of the staLe.'8 A registrant was not compeiled to be a witness against himself because he was required to exhibit a registration...

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