Applicant, whose conscientious objector claim matured after
receipt of his induction notice, was convicted for refusing to
submit to induction. He thereafter sought modification of his
sentence to enable him to submit to induction and obtain from the
Army a ruling on his claim. He asserts Army regulations in force at
the time of his induction did not permit such in-service review,
and that the relief he seeks is implicitly authorized by Ehlert
v. United States, 402 U. S. 99
appeal now pending in the Court of Appeals concerns the propriety
of such a procedure.
Applicant should be released on his own
recognizance pending disposition of his appeal.
322 F. Supp. 852.
MR. JUSTICE Douglas, Circuit Justice.
Applicant Lopez was indicted and convicted for refusing to
submit to induction. He claimed at trial that he was entitled to a
hearing before his local board on his conscientious objector claim
which had matured after receipt of the induction notice. At the
time applicant received his order to report for induction, however,
the law in the Ninth Circuit did not allow the filing of an
application for exemption as a conscientious objector after an
induction notice had been issued. [Footnote 1
] We noted in Ehlert v. United States,
402 U. S. 99
(1971), decided after applicant's conviction, that the Army agreed
a draftee could have a hearing on such a claim after induction; and
we held that such a hearing, though post-induction, satisfied the
requirements of the Military
Page 404 U. S. 1214
Selective Service Act of 1967. Relying on this opinion, the
Court of Appeals affirmed Lopez' conviction.
Applicant claims, however, that Army regulations in force at the
time of his induction date did not permit him the post-induction
hearing to which we held Ehlert was entitled, [Footnote 2
] and he now seeks a modification of his
sentence which will enable him to submit to induction and to obtain
thereafter the Army's ruling on his conscientious objector claim.
The appeal now waiting argument in the Court of Appeals concerns
the propriety of such a procedure. The question seems to me a
substantial one, and applicant has proved himself to be
bail-worthy, as he has twice before been ordered released on his
personal recognizance in connection with this litigation. Pending
disposition of the appeal, applicant Lopez should be released on
his personal recognizance in the form and manner provided at an
earlier stage of this litigation.
It is so ordered.
Ehlert v. United States,
422 F.2d 332 (CA9 1970),
aff'd, 402 U. S. 402
99 (1971), which set forth the Ninth Circuit rule, was decided Feb.
2, 1970. Applicant received his notice of induction Mar. 3, 1970,
and failed to submit Mar. 17, 1970.
From Nov. 9, 1962, until Aug. 15, 1970, Army Regulation AR
635-20, � 3(b), provided that requests for discharge after entering
military service would not be favorably considered when based
"solely on conscientious objection which existed, but which was
not claimed prior to induction,
enlistment, or entry on
active duty or active duty for training."