Petition for Writ of Certiorari — Schaack v. United States

SLED

2-15 is JUL 1 1972

MICHAEL ROBSK, JRC

3n the

Supreme Court of the Anited States

Ocroper Term, 1971

— —

aor erence _ae

ANDREW JOSEPH SCHAACK,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR i

SEVENTH CIRCUIT

Gzorce C. PontrKes

11 South LaSalle Street

Chicago, Illinois 60603

Attorney for Petitioner

The Scheffer Press, Inc.—(312) 263-6850

INDEX

PAGE

Citation to the Opinion Below .....c.c.cccccccsssesscesssssscsesceesees 1

RII icisscissiinsicla alicia i ai 1

ee II csincdkcciveescariinisins cnaiatdeciteinnesnisckcarecosiecsensocks 2

Constitutional Provisions Involved ......cccccccccccosccocscecccecee 2

I 2

Selective Service Regulations Involved .........cccccccceceseeee 3

eg ile heat ate Nee An on EE 3

Reasons for Granting the Wit ...........cccccsssssssesessseeceeees 6

ERAS SE aS MR OCTET 5 5, | aR Te 12

Appendices :

1—Opinion of the U.S. Court of Appeals ................ la

2—Judgment of the U.S. Court of Appeals ........ 6a

3—Opinion of the U.S. District Court ......0..00...0.. 7a

4—Selective Service Regulation Involved ........ . 10a

Cases

Bolling v. Sharpe, 347 U.S. 497 (1954) wu. 8

Boylan v. United States, 310 F.2d 493 (CA 9,

TIE cticsasiik icituliptlinhiteas tishiestetsdeisiaihnaballdaiaaupiniintagspide 9

Smith v. United States, 424 F.2d 267 (CA 6,

ITT histhchcaliaeelliieeiacissieiletalbineitaitaskariiabanbdaiababaeiarsnipaale 11

STATUTES Se

RI: Ts GND scesnaseicctnsctsonininvessuiincntastaseouions 2, 6, 10

MU TT, GID ccnsastcccncticicscesnasentncenenon 3, 5, 6, 7, 10

NC WY ON i ih eisoaienlecacnetall

ii

PAGE

REGULATIONS

TT FOI cis issscrsecescqhascecscsccscasecensssovsipbsnind 3, 6, 7, 10

SE CPE, TORE AE) .nccccccsecscccscocccccoseovessecosstecesonsisnbany 6

Unrtrep States ConsTITUTION

Amendment V to the United States Constitution ..

GR Sal I AEA ME BREN RTE EE 2,7, 9,9

OrHerR AUTHORITIES

U.S. Cong. and Admin. News, 84th Cong. 1955,

PPPTTTITITITI TIT)

In THE

SUPREME COURT OF THE UNITED STATES

Ocroser Term, 1971

No.

ANDREW JOSEPH SCHAACK,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

a

———

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIT

Petitioner, Andrew Joseph Schaack, prays that a Writ

of Certiorari issue to review the Judgment of the United

States Court of Appeals for the Seventh Circuit entered

on May 31, 1972, in the above entitled cause.

CITATION TO THE OPINION BELOW

The opinion of the United States Court of Appeals for

the Seventh Circuit, printed in Appendix attached hereto,

infra, pages la-Sa is unreported at present.

JURISDICTION

The opinion and judgment of the Court of Appeals

were filed and entered on May 31, 1972. This Petition for

eee Aultice a Cor, ae ot hr

cuiliinin

Writ of Certiorari will be timely filed on or before June

30, 1972.

The Jurisdiction of this Court is invoked under 28

U.S.C. Section 1254 (1).

QUESTION PRESENTED

Whether Section 456 (a) is in violation of due process

of law guaranteed by the Fifth Amendment to the Con-

stitution of the United States of America?

CONSTITUTIONAL PROVISION INVOLVED

Fifth Amerdment to the United States Constitution

provides in yertinent part:

“No person shall . . . be deprived of life, liberty or

property, without due process of es

STATUTES INVOLVED

Section 454 (b) 50 U.S.C. App. provides in material

part as follows: ,

“(b) Length of Service——Each person inducted into

the Armed Forces under the provisions of subsection

(a) of this section shall serve on active training and

service for a period of twenty-four consecutive months,

unless sooner released, transferred, or discharged in

accordance with procedures prescribed by the Secre-

tary of Defense (or the Secretary of the Treasury

with respect to the United States Coast Guard) or

as otherwise prescribed by subsection (d) of Section 4

of this Title. The Secretaries of the Army, Navy and

Air Force, with the approval of the Secretary of

Defense (and the Secretary of the Treasury with

respect to the United States Coast Guard), may

provide, by regulations which shall be as_ nearly |

uniform as practicable, for the release from training |

and service in the armed forces prior to serving the

_

periods required by this subsection of individuals

who volunteered for and are accepted into organized

units of the Army National Guard and Air National

Guard and other reserve components.”

Section 456 (a) 50 U.S.C. App. provides in material

part as follows:

“,. Any person who subsequent to June 24, 1948,

serves on active duty for a period of aot less than

eighteen morths in the armed forces of a nation with

which the United States is associated in mutual

defense activities as defined by the President, may

be exempted from training and service, but not from

registration, in accordance with regulations prescribed

by the President, except that no such exemption shall

be granted to any rerson who is a national of a coun-

try which does not grant reciprocal privileges to

citizens of the United States: .. .”

SELECTIVE SERVICE REGULATIONS INVOLVED

32 C.F.R. 1622.40, the pertinent text of which is here-

after set forth in the appendix hereto attached (pages

10a-14a).

STATEMENT OF THE CASE

The Petitioner was born in the Grand Duchy of Luxem-

bourg. (A. 51).’ Prior to the time that he served in the

Army of Luxembourg, he consulted with the American

Embassy in Brussels, Belgium, regarding his military

obligation in the United States, after immigrating to

the United States upon completion of military service in

Luxembourg. He was told by an official in the American

Embassy, “Well, since you are going to ke in the Army

before you leave towards the States, we do not think

“A” refers to Appendix in the Court of Appeals.

ells

that you will be drafted there.” However, that official

did not commit himself definitely on that question (A,

54-55). Thereafter, Petitioner served nine months of

active duty in the Army of Luxembourg (A. 19-22). Upon

completing that service, he immigrated to the United

States and registered with Illinois Selective Service Sys-

tem Local Board No. 71. After being ordered for induction

by Local Board No. 71, petitioner refused to submit to

induction on July 29, 1966 (A. 10). The United States

Attorney for the Northern District of Illinois returned

the file to Local Board No. 71 for it to consider whether

or not it would allow petitioner to return to Luxembourg,

given the circumstances under which he entered the United

States and registered with the Selective Service System.

Local Board No. 71 considered that possibility and refused

to grant such permission (A. 10). On February 26, 1968,

petitioner was ordered to report for induction on March

28, 1969. The petitioner reported for induction on that

date but refused to submit. (A. 7).

On July 31, 1969, an indictment was filed in the North-

ern District of Illinois, Eastern Division, charging the

Petitioner ANDREW JOSEPH SCHAACK, with the

offense of willfully and knowingly failing, neglecting and

refusing to submit to induction on March 28, 1968, pur-

suant to the order of his Local Board in violation of

Section 462, Title 50 App., U.S.C. The petitioner pleaded

not guilty to the indictment on November 19, 1965. On

November 19, 1970, the District Court denied the petition-

er’s motion for a judgment of acquittal, entered a finding

of guilty, imposed a sentence of eighteen months in the

custody of the Attorney General. A Notice of Appeal

was filed on November 25, 1970. (A. 2-4).

sil

a an

Petitioner argued below that Section 456(a), 50 U.S.C.,

App., was unconstitutional because it provided ‘hat an

in would be exempt from the military service in the

Armed Forces of the United States, only if he served

18 months of active duty with the Armed Forces of a

nation with which the United States is associated in

mutual defense, but provided no exemption for active

duty less than 18 months. The petitioner contended that

there was no rational basis for such classification and

that it, thereby violated petitioner’s right to equal pro-

tection of the laws as safeguarded by the due process

clause of the Fifth Amendment of the United States

Constitution. The District Court rejected that argument

and found that the minimum service of 18 months was

not arbitrary and capricious.

On appeal, the Seventh Cireuit Court of Appeals

afirmed with the following language:

“We hold that the classification has a rational basis

and is not invidiously discriminatory. We agree with

the district court finding of the congressional goals.

The congressional intentions were to implement our

own defenses by strengthening the defenses of our

allies, to maintain friendship with our allies, and to

further prudent diplomacy in our foreign affairs. We

think that these goals are of high legislative priority

and are clear from the enactment, and terms, of the

statute. How to achieve the appropriate balance in

serving these vital national interests clearly called

for legislative expertise.” C. 3a .?

*Footnote 2. refers to Appendix to Petition for Cer-

tiorari.

The Court is being asked to determine an important

question of Constitutional Law which it has yet to deter.

mine, namely: Is a requirement that petitioner serve 18

months in an Army associated with the United States

in mutual defense, in order for petitioner to obtain an

exemption from training and service in the United States

Armed Forces violative of petitioner’s rights to equal

protection as guaranteed by the Fifth Amendment to the

United States Constitution?

The length of military service which must be served

by a person inducted into the United States Armed Forces

is governed by Section 454(b), 50 U.S.C., App. It provides

a period of two years active duty for inductees with

lesser periods for persons in the National Guard or

Reserves.

Section 456(a), 50 U.S.C. App., gives the President

the authority to exempt persons from such active training

and service who have served in the Armed Forces of a

nation with which the United States is associated in

mutual defense activities.

Any registrant who falls into this category is cus-

iomarily placed in class IV-A by reason of 32 C.F.R,

Section 1622.40(4).

A reading of 32 C.F.R. Section 1622.40 reveals that the

registrant may be placed in Class IV-A under the follow-

ing circumstances:

1) If he is discharged for the convenience of the

service after serving a period of not less than six months

in a branch of the Armed Forces.

_—

2) If he has served honorably on active duty for a

period of not less than one year in one branch of the

Armed Forces.

3) If he served twenty-four months of active duty

in the Public Health Service.

4) If he served in certain types of reserves, having

completed eight years of satisfactory service after a

training of not less than three months.

5) If he served in certain National Guard units and

completed eight years, training for not less than three

consecutive months.

6) If he completed eight years of active service in

certain types of reserves with training of not less than

four consecutive months.

7) If he completed six years of satisfactory service

as a member of any reserve and has ceased to be a mem-

ber of that reserve.

The sole question in this cause is whether Section

456(a), as implemented by regulation 32 C.F.R. Section

1622.40, is unconstitutionally discriminatory in its applica-

tion to defendant and, thereby, violates defendant’s right

to due process as guaranteed by the Fifth Amendment

to the United States Constitution.

There is no question that the petitioner served in the

Army of Luxembourg from December 11, 1964 until Sep-

tember 4, 1965, a period of nine months. There is also no

question that the Grand Duchy of Luxembourg is a nation

with which the United States is associated in mutual

defense, since it ratified the Northern Atlantic Treaty

on June 27, 1949, 63 Stat., 2252, 1949. Had the defendant

served eighteen months active duty in the Luxembourg

wre wee

>

he

i

:

%

t

¥

:

4

.

*

*

&

t

e

E

%

:

é

.

4

.

#

Army, he would have been automatically entitled to ex.

emption in Class IV-A. The draftee in the Luxembourg

Army is required to serve only nine months. (A. 18-42)

These pages of the Appendix in the Seventh Circuit Court

of Appeals contain the documents regarding petitioner's

service in the Luxembourg Army and the documents

reflecting the loss of Luxembourg regarding conscription.

Petitioner contends that the distinction drawn by the

law between service for eighteen months and service for

nine months is arbitrary, capricious and not founded

on any legitimate public policy. For that reason, petitioner

maintains that this distinction is a discrimination in

violation of his right of equal protection as guaranteed

by the due process clause of the Fifth Amendment to the

United States Constitution.

The petitioner is not contending that Congress could

not require that all aliens be subject to the draft, regard.

less of whether or not they served in an allied army.

However, having decided to exempt from military service

those aliens who have served in an army of a nation

with which the United States is associated in mutual

defense, Congress cannot arbitrarily discriminate between

such aliens on the basis of the amount of time served,

unless there is a showing of some legitimate public policy

purpose to be served by such discrimination.

While the Fifth Amendment to the United States Con-

stitution, unlike the Fourteenth Amendment, does not

contain an express guarantee of the right of equal pro-

tection, the Supreme Court of the United States has

recognized that legislation may be so discriminatory

that it violates the due process clause of the Fifth Amend-

ment. Bolling v. Sharpe, 347 U.S. 497 (1954). The Ninth

—

Cirenit stated the matter well in Boylan v. United States,

310 F.2d 493 (CA 9, 1962):

“But while due process and equal protection cannot

be perfectly equated, discriminatory federal legisla-

tion may be so removed of any legitimate legislative

objective that it violates that basic fairness which

constitutes Fifth Amendment due process”. 310 F.2d

493 at 500.

It is the position of the petitioner in this cause that the

requirement of active duty for eighteen months in the

Armed Forces of a nation with which the United States

is associated in mutual defense is not supported by any

demonstrable legitimate legislative objective.

A review of the legislative history offers no clue as

to the legislative purpose for the eighteen month period.

That legislative history reads, in pertinent part, as fol-

lows:

. 8. The Senate Amendment also added a new

exemption from induction of any person who, sub-

sequent to June 24, 1948, served on active duty for

a period of not less than 18 months in the Armed

Forees of a nation with which the United States

is associated in mutual defense activities if the country

of such a person is a citizen grants the same privilege

to citizens of the United States. A similar proposal

was contained in the H.R. 9007 which passed the

House in the last Congress, but did not pass the

Senate. The House managers agreed to this portion

of the Senate amendment. . . .” U.S. Cong. and Admin.

News, 84th Congress, 1955, page 294.

Apart from the above passage, the legislative history

in no way reveals why the eighteen month period was

chosen by Congress.

—

—

Section 456(a) was amended in 1971 and the eighteen

month period was reduced to a twelve month period.

PL 92-129, Section 101(a)(11), September 28, 1971.

The conference report contains no discussion showing

the reasons for the reduction. The legislative history in

no way demonstrates that there was some legitimate basis

in public policy for an eighteen month period in 1955

and has now changed. This reduction without comment,

demonstrates the arbitrary nature of the requirement.

The arbitrary nature of this requirement is further

demonstrated by the variety of periods and service that

exempt registrants under 32 C.F.R. 1622.40. These are set

forth herein above, supra pages 6 and 7.

Congress itself requires 24 months service, but allows

the President of the United States to make a large num-

ber of exceptions to that rule. The President in 32 C.F.R,,

Section 1622.40, has set up a wide number of types and

‘lengths of service, both inside and outside the Armed

Forces, which satisfy the requirements under Section

454(b). Nothing in this entire scheme reveals a legitimate

legislative objective for denying exemption to the defen-

dant, simply because he served nine months in the Army

of Luxembourg rather than eighteen months.

The Seventh Circuit Court of Appeals stated that the

eighteen month requirement had a rational basis:

“The Congress’ intentions were to implement our own

defenses by strengthening the defenses of our allies,

to maintain friendship with our allies and to further

prudent diplomacy in our foreign affairs.” C. 3a.

| These appeal considerations provided a rational basis

for the exemption for aliens who have served in an ally

—_—

~~

Army. They do not, however, provide a rational basis

for the eighteen month requirement as opposed to any

other length of time or any period whatsoever.

In support of its decision, the Court below cited Smith

v. United States, 424 F.2d 269 (CA 9, 1970), cert. den.

400 U.S. 848. In that case, the Ninth Circuit Court of

Appeals found that exempting men less than 18-14 years

old and more than 26 years old from the draft had a

reasonable basis in public policy. There is ample physical

and emotional data derived from human experience which

renders that classification reasonable. Men less than 18-14

years of age or more than 26 years of age are simply

not fit for active duty in the military. No similar rational

basis is available for the eighteen month requirement

particularly when the law and regulation accept so many

different lengths and types of service in satisfaction

of the statutory requirement.

The Seventh Cireuit Court of Appeals also stated that

Congress had a rational basis for its time period, because

it had evidence before it that nine of the fifty seven

nations associated in military defense, had periods of

military services from fourteen months to twenty-four

months. This evidence cannot provide a rational basis

for two reasons. The first is that Congress had no evi-

dence of the periods of military service from forty-eight

other nations asscciated in military defense. The nine

hardly provided a representative sample. More important-

ly, it is the height of irrationality to subject aliens from

a country as large as Great Britain with a requirement

for a long service in the military and an alien from

Luxembourg with a much smaller requirement to the same

length of military service. To set the same standard

for nations so different, cannot be rational legitimate

distinction.

a

anti

Accordingly, Petitioner respectfully submits that this

Court should issue its Writ of Certiorari in order that

it may decide this important question of Constitutional

law.

CONCLUSION

For the reasons severally and collectively assigned

here it is respectfully prayed that this Court issue its

Writ of Certiorari to review the judgment of the Court

of Appeals for the Seventh Circuit.

Respectfully submitted,

Gerorce C. PonTIKEs

11 South LaSalle Street

Suite 600

Chicago, Illinois 60603

Attorney for Petitioner

— la —

APPENDIX

In Tue

UNITED STATES COURT OF APPEALS

For Tue Sevents Crircurr

SEPTEMBER TERM, 1971 January Session, 1972

No. 71-1142

J

Appeal from the

United States Dis-

Usiren States Or America, trict Court for the

Plaintiff-Appellee, Northern District

of Tllinois, Eastern

Ka - Division.

Axprew JosEPH ScHAACck, No. 61-CR-531

Defendant-A ppellant.

ALEXANDER J.

J Napou, Judge.

Arcuep January 14, 1972 — Decipep May 31, 1972

Before Hastines, Senior Circuit Judge, Kirey, Circuit

Judge, and Gorvon, District Judge.

Kuey, Circuit Judge. Defendant Schaack appeals from

his conviction of refusal to submit to induction.2 We

affirm.

The only issue raised by Schaack is the constitutionality

of that part of 50 U.S.C. App. §456(a)(1) which provides

‘District Judge Myron L. Gordon of the Eastern District of Wisconsin

is sitting by designation.

750 US.C. App. §462(a).

“=

es

that “any person who subsequent to June 24, 1948 serves

on active duty for a period of not less than eighteen

months in the armed services of a nation with which the

United States is associated in mutual defense activities

. .. may be exempted from training and service, but not

from registration.”

During 1964-65 Schaack, a native of Luxembourg,

served nine months in the Army of Luxembourg and

completed his military service there. In October, 1965,

he emigrated to the United States and thereafter regis.

tered with the Illinois Selective Service System. He was

subsequently ordered to report for induction on March

28, 1968. Schaack reported as ordered, but refused to

submit, and his indictment, trial and conviction followed.

After close of the evidence at the trial, Schaack’s at.

torney moved for an acquittal on the ground of denial of

due process because of alleged discrimination and arti-

trariness in the eighteen month requirement of $456(a) (1)

and because that requirement was not reasonably related

to any legitimate congressional purpose.

The district court denied the motion, finding that the

congressional purpose in the eighteen month limitation

was “undoubtedly the maintenance of our defense capa-

bilities” by strengthening the military force of our allies

without subjecting their military veterans emigrating to

this country to undue “double obligation of service;” and

that some “minimum length of service was necessary.”

350 U.S.C. App. §456(a) (1) provides in pertinent part:

Any ho subsequen

person w t to June 24, 1948, serves on active

duty for a period of not less than eighteen months in the armed

forces of a nation with which the United States is associated in

mutual defense activities as defined by the President, may be ex-

from and service, but not from registration, in

accordance with tions prescribed by the President, except that

no such exemption shall be granted to any person who is a national

of a country which does not grant reciprocal privileges to citizens

of the United States: Provided, That any active duty performed

prior to June 24, 1948, by a person in the armed forces of

allied with the United States during World War II and with

the United States is associated in such mu

shall be credited in the computation of such

The statute was amended in 1971 and the eigh

reduced to a twelve month period. PL 92-129, §101(a) (11),

28, 1971.

g&é

he

itt

—

‘ial

The court found no invidious discrimination in Congress’

setting the limitation at eighteen instead of nine months.

Schaack argues that the “eighteen months” provision

is an arbtirary classification and in violation of his Fifth

Amendment due process right. He argues here that the

eighteen month requirement is not supported by “any

demonstrable” legitimate congressional objective. THe

states that neither Congress in enacting §456(a)(1) nor

the President in promulgating the implementary regula-

tion 32 C.F.R. $1622.40(a)(4) has made a fair distinction

between the eighteen month limitation and his nine month

Luxembourg Army service and that the distinction is

invidiously discriminatory. No case deciding the precise

question before us has been cited or found, but we find

no merit in Schaack’s argument.

We hold that the classification has a rational basis

and is not invidiously discriminatory. We agree with the

district court finding of the congressional goals. The cor-

gressional intentions were to implement our own defenses

by strengthening the defenses of our allies, to maintain

friendship with our allies, and to further prudent diploma-

cy in our foreign affairs. We think that these goals are of

high legislative priority and are clear from the enactment,

and terms, of the statute. How to achieve the appropriate

balance in serving these vital national interests clearly

called for legislative expertise.

“The power of Congress to classify and conscript man-

power for military service is ‘beyond question.’” United

States v. O’Brien, 391 U.S. 367, 377 (1968). This power

extends to establishment of a “system of registration

for individuals liable for training and service” and to

requiring cooperation of individuals within the registra-

tion system. And the promulgation of regulations by the

President‘ with respect to registration and eligibility

classification is “a legitimate and substantial” aid in

making the system work. Id.

It is true that discrimination “may be so unjustifiable”

as to violate the Fifth Amendment due process right.

*50 US.C. App. §460(b) (1).

—

— 4g —

Bolling v. Sharpe, 347 U.S. 497, 499 (1954). The Ninth

Cireuit, however, in Smith v. United States, 424 F.9q

269 (9th Cir. 1970), cert. den. 400 U.S. 848, relied, inter

alia, upon Bolling v. Sharpe, supra, in rejecting a conten-

tion that the Selective Service Act violated the Fifth

Amendment due process clause in exempting “men under

1814 and over age 26” from the draft. The court stated

that the Fifth Amendment “merely requires” that all

legislative classifications have a reasonable basis.

32 C.F.R. $1622.40 has a wide range of Class IV-A

categories, with varying periods of prior service require.

ments which qualify registrants for exemption from

future service.°

The exemption provision of §456(a)(1) before us is

limited as follows: “except that no such exemption shall

be granted to any person who is a national of a country

which does not grant reciprocal privileges to citizens

of the United States.” The reciprocal qualification is

specified in this way: “. . . a nation with which the United

States is associated in mutual defense activities and which

grants exemption from training and service in its armed

forces to citizens of the United States who have served ©

. . in the armed forces of the United States... fora ©

period of not less than eighteen months.” 32 CFR.

§1622.40(a) (4).

5A reading of 32 C.F.R. reveals that a registrant may be placed in

Class IV-A under the following circumstances:

1. If he is discharged for the convenience of the service after

Se ee ee ee ne

2. iy he has served honorably on active duty for a period of not

less than one year in one branch of the armed forces.

3. If he served twenty-four months of active duty in the Public

Health Service.

4. If he served in cetrain types of reserves, having completed >

—- of satisfactory service after a training of not less than three

5. If he served in certain National Guard units and completed

eight years, training for not less than three consecutive —

6. If he conanited eight years of active service in certain types of

reserves with training of not less than four consecutive months.

7. If he completed six years of satisfactory service as a

of any reserve and has ceased to be a member of that reserve.

a

nisin

It is not disputed that until 1955, when the pertinent

provision of §456(a) was enacted,* there was no exception

or credit given for any person who had already served

in the armed forces of a foreign ally. In 1955 only Great

Britain and Turkey, of our fifty-nine associates in mutual

defense, required, as we do, twenty-four months of military

service. The range of service then required in most of

the other fifty-seven associate nations was from fourteen

to eighteen months.

We think that, for the reasons given, it was clearly

within the political function of Congress to require that

a person serve eighteen months in the armed forces of a

foreign ally in order to qualify for the exemption under

§456(a)(1). We cannot say that the congressional classifi-

eation did not have a rational basis.

We hold therefore that neither the relevant provisions

in §456(a)(1) nor those in 32 C.F.R. $1622.40(a) (4)

violate due process.

AFFIRMED.

we

IN THE

UNITED STATES COURT OF APPEALS

For Tue SeventH Circuit

SepremBer TERM, 1971 January Session, 1972

ae

No. 71-1142

Unirep States Or AMEnriIca,

Plaintiff-A ppellee, 3

Vv.

ANDREW JOSEPH SCHAACK,

Defendant-Appellant.

4

May 31, 1972

Appeal from the

United States Dis.

trict Court for the

Northern District

of Illinois, Eastern

Division.

No. 61-CR-531

ALEXANDER J.

Napout, Judge.

This cause came on to be heard on the briefs and

transcript of the record from the United States District

Court for the Northern District of Illinois, Eastern Di-

vision and was argued by counsel.

On consideration whereof; it is ordered and adjudged

by this Court that the judgment of the said District Court

in this cause appealed from be and the same is hereby

affirmed, in accordance with the opinion of this court filed

this day.

— 7a —

In THE

UNITED STATES DISTRICT COURT

For Tue Norruern District or Inuiwois

Eastern Drvision

Usrrep States Or America,

Plaintiff,

v. P No. 69 CR 531

Axprew JOSEPH ScHAack,

Defendant. J

MEMORANDUM ORDER

This is a prosecution for failure to submit to induction

in the armed forces as ordered. Following the close of

evidence at his trial defendant has moved for an acquittal

_ aiming that the denial of exemption from induction 4

under section 456(a) or 50 U.S.C., App., as applied to him, 4

Violates his right to due process of law. The pertinent 4

part of the section provides that:

. Any person who subsequent to June 24, 1948,

serves on active duty for a period of not less than

eighteen months in the armed forces of a nation with

which the United States is associated in mutual de-

fense activities as defined by the President, may be

exempted from training and service, but not from

registration, in accordance with regulations prescribed

by the President, except that no such exemption

shall be granted to any person who is a national

of a country which does not grant reciprocal privileges 4

to citizens of the United States: .. . e

Defendant is a citizen of Luxembourg and has served £

with the armed forces of that nation on active duty for e:

a period of nine months, the period of service required a

of draftees. Luxembourg meets the requirements of a

“mutual defense nation” as set out in the section. Local

=a

Board Memorandum 76. Defendant was den‘ed classifica.

tion as IV-A, the class in which registrants who meet the

requirements of §456(a) are placed, pursuant to 32 C.F.R,

1622.40(a)(4), due to the fact that he served but nine

months rather than the required eighteen months on active

duty. The issue thus presented to this court is whether

the distinction drawn by Congress between active service

for eighteen months and nine months is arbitrary, capri.

cious and not reasonably related to any legitimate legis.

lative purpose, so that the distinction constitutes a dis.

crimination violative of the basic equa! protection of law

required by the due process clause of the Fifth Amend-

ment.

While the Fifth Amendment does not expressly guar-

antee equal protection of the law as does the Fourteentl.

Amendment, a discrimination may be so arbitrary and

unjustifiable as to be violative of due process of law. If

a legislative classification is not reasonably related to any

proper governmental objective and imposes a burden that

constitutes an abritrary deprivation of liberty, it violates

due process. Bolling v. Sharpe, 347 U.S. 497 (1954). Under

the above standards, this court is of the opinion that see.

tion 456(a) as applied to the defendant does not violate

the due process clause.

Defendant argues that the requirement of eighteen

months rather than nine months is arbitrary and capri

cious. Defendant indicates that in Class IV-A are placed

those registrants who are, by virtue of different minimum

lengths of service, deemed to have completed their obliga-

tion, and that requiring defendant to serve 18 months for

no reasonable relationship to the required lengths of ser-

vice for inclusion of other registrants in Class IV-A.

It was the President’s intent as manifested in 32 C.FR,

1622.40 to exempt from further service those individuals

who have completed some minimum length of service de -

pending on the nature of their particular situation. This

court cannot agree that these different lengths of service

for each type of registrant in Class IV-A are arbitrary.

—

in

Rather it is apparent that the President carefully consid-

ered the different nature of service rendered by individuals

who may qualify for Class IV-A and set the minimum

length of service requirement for such a classification

accordingly. Thus, a member cf the Public Health Service

who does not serve in the armed forces must serve two

while a reservist must complete an eight year tour

which includes at least three months training. A member

of the armed forces who serves honorably on active duty

may qualify after one year’s service while one discharged

for the convenience of the service need only serve six

months. The nature and value of the service rendered is

the determining factor for the length which the individual

must serve in order to qualify for classification as IV~A.

The same is true in the defendant’s case. CongieSs has

determined that after some minimum length of service in

the armed forces of a mutual defense nation the individual

should be relieved from an obligation of further service

in our armed forces. The value of defendant’s service in

a foreign armed forces to our defense efforts has appar-

ently been considered in the setting of the requirement of

eighteen months service on active duty. The weight to

be assigned to a requirement of eighteen months service

as opposed to a lesser amount is a task for Congress, not

this court. The purpose that Congress was trying to effec-

tuate by this section is undoubtedly the maintenance of our

defense capabilities through the strengthening of our allies

as well as relieving registrants from double obligation of

service. Finding that some minimum length of service is

necessary, this court can not say that requiring eighteen

months service is unreasonably related to effectuating such

purpose.

Nor can the fact that minimum service required by

Congress was set at eighteen months can be said to be arbi-

~trary and capricious. Some minimum length of service

had to be set, even if it was only one day’s service. It

is true that there is no real distinction between serving

seventeen months and twenty-nine days or eighteen months.

ae

=

But some line had to be drawn, and the distinction be

tween one day before and one day after is bound to be

arbitrary. But it is not the type of arbitrariness tha

would constitute a violation of equal protection or dye

process, for a rational scheme supports it; some minimum

standard had to be fixed, a cut off point had to be deter.

mined.

In accordance with the foregoing, defendant’s motion for

acquittal at the close of the evidence is hereby denied.

Enter:

/s/ Alexander J. Napoli

United States District Judge

Dated: November 19, 1970

CLASS IV

1622.40 Class IV—A: Registrant Who Has

Service; Sole Surviving Son—(a) In Class IV-A shall be

placed any registrant who falls within any of the follow.

ing categories:

(1) A registrant who subsequent to September 16,

1940, was discharged or transferred to a reserve com-

ponent of the Armed Forces for the convenience of

the Government after having served honorably on

active duty for a period of not less than six months

in the Army, the Air Force, the Navy, the Marine

Corps, or the Coast Guard.

(2) A registrant who has served honorably on

active duty after September 16, 1940, for a period of

not less than one year in the Army, the Air Force,

the Navy, the Marine Corps, or the Coast Guard.

(3) A registrant who has served on active duty

for a period of not less than twenty-four months as

a commissioned officer in the Environmental Science

Services Administration or in the Public Health Ser-

vice, provided that such period of active duty in th

Public Health Service as a commissioned reserve off-

cer commencing after the date of enactment of the

Military Selective Service Act of 1967 shall have been

—_—

performed by the registrant while assigned to staff

any of the various offices and bureaus of the Public

Health Service including the National Institutes of

Health, or while assigned to the Coast Guard, or the

Bureau of Prisons of the Department of J ustice, or

the Environmental Science Services Administration.

(4) A registrant who has served on active duty

subsequent to June 24, 1948, for a period of not less

than eighteen months in the armed forces of a nation

certified by the Department of State to be a nation

with which the United States is associated in mutual

defense activities and which grants exemption from

training and service in its armed forces to citizens of

the United States who have served on active duty in

the Armed Forces of the United States subsequent

to June 24, 1948, for a period of not less than eighteen

months: Provided, That in computing such eighteen-

month period, there shall be credited any active duty

performed by the registrant prior to June 24, 1948,

in the armed forces of a country allied with the United

States during World War II and with which the

United States is associated in such mutual defense

activities: And provided further, That all information

which is submitted to the local board concerning the

registrant’s service in the armed forces of a foreign

nation shall be written in the English language.

(5) A registrant who after becoming a member of

a unit of the Ready Reserve of a reserve component

of the Armed Forces by enlistment prior to August 1,

1963, under the provisions of section 262 of the Armed

Forees Reserve Act of 1952, as amended, has continued

to serve satisfactorily as such member or as a member

of another reserve component, the Army National

Guard, or the Air National Guard, as the case may be,

and who has completed eight years of such satisfac-

tory service during which he has performed an initial

period of active duty for training of not less than

three months.

— 194 —

(6) A registrant who after becoming a member of

an organized unit of the Army National Guard or

the Air National Guard by enlistment or appointment

prior to attaining the age of 18 years and 6 months

and prior to September 3, 1963, has continued to serve

satisfactorily as such member or as a member of

another reserve component, the Army National Guard,

or the Air National Guard, as the case may be, and

who has completed eight years of such satisfactory

service during which he has performed active duty for

training with an armed force for not less than three

consecutive months.

(7) A registrant who after becoming a member

of the Ready Reserve of any reserve component of

the Armed Forces, the Army National Guard, or the

Air National Guard by enlistment or appointment on

or after September 3, 1963, and prior to attaining

the age of 26 years, has served satisfactorily as such

member or as.a member of another reserve compo-

nent, the Army National Guard, or the Air National

Guard, as the case may be, and who has completed

six years (or eight years if so obligated under the

provision of section 6(d)(1) of the Military Selective

Service Act of 1967) of such satisfactory service dur-

ing which he has performed active duty for training

with an armed force for not less than four consecutive

months.

(8) A registrant who after completion of six years

of satisfactory service as a member of one or more

reserve components of the Armed Forces has ceased

to be a member of any reserve component of the

Armed Forces.

(9) A registrant, other than a registrant referred

to in subparagraph (5) or (6) of this paragraph,

who has completed six years of satisfactory service

as a member of one or more of the Armed Fores

including the reserve components thereof. .

(10) A registrant who is the sole surviving so

of a family of which the father or one or more sons

—_

win ani

or daughters were killed in action or died in line of

duty while serving in the Armed Forces of the United

States, or subsequently died as a result of injuries

received or disease incurred during such service:

Provided, That no registrant shall be placed or re-

tained in Class IV—A under the provisions of this

subparagraph (i) if he volunteers for induction, or

(ii) during the period of a war or national emer-

gency declared by the Congress after July 7, 1964.

(b) For the purpose of computation of periods of

active duty referred to in subparagraphs (1), (2), or (3),

of paragraph (a) of this section, no credit shall be allowed

for—

(1) Periods of active duty training performed as

a member of “a ‘reserve component pursuant to an

order or call to active duty solely for training pur-

poses ;

(2) Periods of active duty in which the service

consisted solely of training under the Army special-

ized training program, the Army Air Force college

training program, or any similar program under the

jurisdiction of the Navy, Marine Corps, or Coast

Guard.

(3) Periods of active duty as a cadet at the United

States Military Academy, United States Air Force

Academy, or United States Coast Guard Academy, or

as a midshipman at the United States Naval Academy,

or in a preparatory school after nomination as a prin-

cipal, alternate, or candidate for admission to any of

such academies ;

(4) Periods of active duty in any of the Armed

Forces while being processed for entry into or sepa-

ration from any educational program or institution

referred to in subparagraphs (2) or (3) of this para-

graph; or

(5) Periods of active duty performed by medical,

dental, or allied specialists in student programs prior

to receipt of the appropriate professional degree or

in intern training.

_—

(6) Periods of active duty of members of the

Reserve of the Public Health Service commencing after

the date of enactment of the Military Selective Service

Act of 1967 other than when assigned to staff any of

the various offices and bureaus of the Public Health

Service, including the National Institutes of Health,

or the Coast Guard or the Bureau of Prisons of the

Department of Justice, or the Environmental Science

Services Administration.

Packet No. 67-11

27 November 1970