UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE
v.
THOMAS EUGENE POTTER, DEFENDANT-APPELLANT
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The court held that a local draft board's actions cannot be challenged based on the residential qualifications of its members, as it is considered a de facto board.
Appellant was convicted for refusing induction into the armed forces. His defense was that his classification and induction order were invalid due to …
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PER CURIAM.
We consider a motion to affirm the judgment below on the grounds that it is manifest that the questions on which the decision of the cause depends are so unsubstantial as not to need further argument. 6th Cir. R. 8.
Appellant was convicted for refusal to submit to induction into the armed forces of the United States, in violation of 50 U.S.C.App. § 462. His only defense is that his 1-A classification and the order to report for induction were invalid because all the members of his local board did not reside in the area in which the board had jurisdiction, and that there were eligible persons who were available and willing to serve. 32 C.F.R. § 7604.52 (b) (1970). He relies on United States v. Cabbage, 430 F. 2d 1037 (6th Cir. 1970).
We observe that this residential requirement has been eliminated by executive order from the current regulations, 32 C.F.R. § 1604.52(b) (1971), and that the District Court was advised that, since the Cabbage decision, board membership in that judicial district has been reconstituted. We also observe that in United States v. Hart, 449 F. 2d 340 (6th Cir. 1971), we held that the action of a local board cannot be challenged on the ground of the lack of proper residential qualifications of some of its members. We held that such a board is a de facto board whose action is not subject to collateral attack. Since this appeal is clearly controlled by the decision in Hart, the motion to affirm is granted.
Affirmed.
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Citator
Cited By
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GEE v. Colonel James M. Smith, 479 F.2d 642 (5th Cir. 1973)
Authorities Cited
- United States v. Cabbage, 430 F.2d 1037 (6th Cir. 1970)
- United States v. Hart, 449 F.2d 340 (6th Cir. 1971)