I. United States v. Whalen, 451 F.2d 755 (8th Cir. 1971), interpreting Ehlert v. United States, 402 U.S. 99, 91 S. Ct. 1319, 28 L.Ed.2d 625 (1971), holds that in most cases a local board is without authority to reopen a registrant's classification when a claim to C.O. status is first filed subsequent to registrant's notice to report for induction. It would appear, then, that the instant fact situation would fall within the purview of Whalen. If this were the case there would be a basis in fact for the appeal board decision to classify Ziobro I-A, because the C.O. claim could not have been properly before it. This, however, is not a case falling within the Whalen rule for two reasons.
The Supreme Court, in Ehlert v. United States, 402 U.S. 99, 91 S.Ct. 1319, 28 L.Ed.2d 625 (1971), clearly held that a draft board need not consider a claim of conscientious objection filed or asserted after a registrant has received a notice of induction. This Circuit has interpreted the Ehlert decision to mean that a local board does not even have the authority to consider such claims unless there exists an objective change in circumstances over which the registrant had no control. United States v. Whalen, 451 F.2d 755, 757 (8th Cir. 1971). See 32 C.F.R. § 1625.2 (1971).
The Supreme Court in Ehlert v. United States, 402 U.S. 99, 91 S.Ct. 1319, 28 L.Ed.2d 625 (1971) clearly states that a draft board need not consider a claim of conscientious objection filed or asserted after a registrant has received an induction notice. The Eighth Circuit has interpreted this ruling to mean that a local board does not even have the authority to do so, absent an objective change in circumstances over which the registrant had no control. United States v. Whalen, 451 F.2d 755, 757 (8th Cir. 1971). See 32 C.F.R. § 1625.2. Thus, in the instant case, the board was required, or even authorized, to consider only claims presented by appellant before his notice to report for induction, sent on October 8, 1971; claims presented after that date could not be considered by the board.
The board was required by 32 C.F.R. 1625.2 to first determine whether there had been a change in the registrant's status resulting from circumstances over which he had no control. Clearly the filing of a post induction order C.O. claim, in which beliefs had matured after notice to report for induction has been mailed, is not a change in the registrant's status resulting from circumstances over which he had no control. See Ehlert v. United States, 402 U.S. 99, 108, 91 S.Ct. 1319, 28 L.Ed.2d 625 (1971); United States v. Whalen, 451 F.2d 755, 757 (8th Cir. 1971). In fact, in Whalen we held that "the local board was without authority to reopen the classification . . . to determine his claim for c.o. status inasmuch as his claim was first filed subsequent to his notice to report for induction."
In addition, in many cases courts have recognized that, following a postponement of induction, the existing induction order remains in effect and the registrant may, by letter, be given a new date on which to comply with the order. E. g., United States v. Whalen, 451 F.2d 755 (8th Cir. 1971); United States v. Jenson, 450 F.2d 1258 (9th Cir. 1971); United States v. Watson, 442 F.2d 1273 (8th Cir. 1971); United States v. Evans, 425 F.2d 302 (9th Cir. 1970); see 32 C.F.R. § 1632.2(d). The facts in this case indicate that the Selective Service authorities have been especially careful to accord appellant the maximum opportunity to comply with his duty to report for induction.
Larson's prima facie case, if presented at all, followed, rather than preceded, the induction order. Accordingly, this case is controlled by Ehlert v. United States, 402 U.S. 99, 91 S.Ct. 1319, 28 L.Ed.2d 625 (1971), and United States v. Whalen, 451 F.2d 755 (8th Cir. 1971). In affirming this conviction, we delay execution of our mandate as we did in Whalen.
It is clear from the Supreme Court's decision in Ehlert v. United States, 402 U.S. 99, 91 S.Ct. 1319, 28 L.Ed.2d 625 (1971), that a draft board need not consider a conscientious objection claim filed or asserted after a registrant has received an induction notice, and indeed has no authority to do so absent an objective change in circumstances over which the registrant has no control. The Eighth Circuit succinctly summarized the Ehlert holding in United States v. Whalen, 451 F.2d 755 (8th Cir. 1971), by stating at 757: Defendant asserts that the holding in Ehlert was based on the assumption that a post induction notice conscientious objector claim could be heard in the military and that the then applicable Army regulations barred such a claim in this case.
These contentions of petitioner, and authorities (some of which are noted above) relied on in support thereof, are not applicable because, among other reasons, they do not take into account either the rule announced in Ehlert v. United States, 402 U.S. 99, 91 S.Ct. 1319, 28 L.Ed.2d 625, or the procedures provided by Local Board Memorandum 121, supra, which became effective as of June 1, 1971. See also, United States v. Whalen (C.A.8), 451 F.2d 755. Under the circumstances of this case petitioner was entitled, not to reopening of his classification by the Board, but, to application of Part IV of Local Board Memorandum No. 121, supra.
Ehlert seems to some extent to have been lost sight of in Birdsong. Apart from the above and in any event United States v. Whalen, 451 F.2d 755 (8th Cir. 1971), teaches that the local board has no authority or as it were jurisdiction to consider a post-induction notice claim of conscientious objection. It would seem to follow as an a fortiori that any refusal to accord a courtesy interview is therefore immaterial and there can be no denial of due process under the circumstances.
See United States v. Dell'Anno, 436 F.2d 1198, 1201 (9th Cir. 1971); United States v. Martinez, 427 F.2d 1358, 1360 (9th Cir.), cert. denied, 400 U.S. 879, 91 S.Ct. 122, 27 L.Ed.2d 117 (1970). See also United States v. Whalen, 451 F.2d 755, 757 (8th Cir. 1971). In Rodriguez, the registrant failed to report on his first induction date due to extremely bad weather.