# Petition for Writ of Certiorari — Schaack v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1972
- **Citation:** 409 U.S. 875

## Text

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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1016%3A1. Public record. Not legal advice.