BARTCHY v. UNITED STATES, 132 F.2d 348

HOLMES, Circuit Judge. Appellant, a registrant under the Selective Training and Service Act of 1940, 50 U.S.C.A. Appendix, § 301 et seq., was found guilty of knowingly failing to keep* his local draft board advised at all times of the address where mail would reach him, in violation of

Section 11 of the Act. The only decisive question is whether there was substantial evidence to support the finding of the court below, the case having been tried without a jury. These are the determinative facts, as-to which there is no dispute: Prior to-February 4, 1942, appellant had been placed in Class 1A by his local draft board,, and had passed his pre-induction physical' examination. On or about that date he was advised by the board that he probably would be inducted within twenty-five or thirty days.

On February 10, 1942, appellant wrote to his local board and stated that he was that day shipping as a seaman aboard a named merchant vessel; that he would return within two weeks; and that he could be reached by mail addressed in care of the National Maritime Union in Houston, Texas. He did not ship aboard the vessel named, giving as his-reason therefor the belated discovery that the ship was to take a three-month voyage, and that he could not be absent from Houston more than twenty days in view of his draft status.

The following day he shipped aboard another merchant vessel, bound for New York; and the Union was advised to forward his mail to the offices of the Union in New York City. Prior to this voyage appellant had never worked as a seaman, but he claimed occupational deferment as a seaman in the merchant marine in his letter of February 10, 1942, to-the local board. Upon his arrival in New York on February 20, 1942, appellant called at the Union offices, but no mail had yet arrived for him.

He signed off the vessel on which he had come, and did not attempt to secure passage on any other returning to Houston; but, on February' 25th, he shipped aboard a vessel being repaired in Hoboken, N. J., for a foreign voyage. He remained aboard this ship from February 25, 1942, until March 11, 1942, during which time he did not communicate in any way with the Union offices in New York or with his draft board.

He testified that it was his intention, in the event he received no communication from his draft board prior to the sailing time of the vessel, to ship on the voyage in foreign commerce from which he would not return for several months. Meanwhile, on February 20, 1942, the draft board mailed to appellant a notice to report for induction on March 4, 1942. This notice was forwarded to the offices of the Maritime Union in New York, but was returned unopened to the draft board with a letter advising that appellant had sailed upon a foreign voyage prior to the arrival of the notice.

The local board notified the Federal Bureau of Investigation of appellant’s delinquency, and he was taken into custody in New York on March 11, 1942, shortly before the vessel on which he had signed was scheduled to begin its foreign voyage.

Article 641.3 of the selective service regulations, promulgated under

Section 10 of the Selective Training and Service Act of 1940, places an affirmative duty upon eyery registrant under the Act to keep his local draft board advised at all times of the address where mail will reach him. The finding of the court below that appellant failed in the discharge of this duty is supported by substantial evidence.

Moreover, appellant’s conduct in shipping aboard a vessel bound in foreign commerce, with the acknowledged intent to absent himself from the United States for a period of several months if he received no communication from his draft board before the sailing date, and his failure to contact the Union or the local board at any time during the crucial two-weeks period when his notice of induction was due, supports the inference that he not only failed to do what was required of him to effectuate the communication of notice but also affirmatively endeavored to avoid delivery of the communication.

The judgment is affirmed. 50 U.S.C.A. Appendix, § 311.