Administrative Law: Standing in the Draft

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If a young man's opposition to induction and a trip to Viet Nam is strong enough, he should have little trouble getting his day in court. He need only refuse to be drafted, like Muhammad Ali, or burn his draft card, like David O'Brien, whose conviction has just been upheld by the Supreme Court. These days, such actions are almost sure to bring prosecution and a chance to argue the case before a judge and jury. But what of the average draftee who feels he should be either reclassified or excused from service, yet shies away from deliberate violation of the law?

He stands before his local draft board very much like a man on trial. But unlike an ordinary defendant, he is, in effect, guilty until proved innocent—that is, he is 1A until he can demonstrate that he deserves to be deferred. Moreover, draft boards, made up of well-intentioned but often legally untrained pillars of the community, are not courts of law. They are federal administrative agencies charged with producing a quota of inductees each month, and they have wide latitude in deciding when, why and who shall go.

Hard Time. Some matters are rigidly prescribed, such as a requirement that a man be given at least 30 days to appeal a 1A classification, but many others have purposely been left to the virtually unfettered discretion of local boards. Recent changes in the draft have removed most graduate students and many so-called "critical-skills" workers from their semi-automatic deferred status. But even before the change, local boards were not absolutely required to grant deferments, and now a deferment can still be issued if a board is persuaded that there is a "community need."

A man claiming conscientious-objector status usually has a particularly hard time. Relatively few boards seem to know or care that the Supreme Court significantly broadened the qualifications three years ago. Now a man need only possess beliefs that prompt his objection to all wars and that "occupy the same place in his life as the belief in a traditional deity." But even if he knows how to raise that argument legally, home-town board members may well pay no attention because they think that such a test is much too easy.

Wedge in the Door. Along with draft-board ignorance of Selective Service regulations, the draftee often suffers from the fact that he has little recourse to the courts. He can get his classification reviewed by a higher draft board; but in order to get out of the draft-board system and into the federal courts, he is likely to find he must wait until he is actually called into military service. Once sworn in, he can file a habeas corpus action to get out; if he loses, he is already in uniform and stuck. If, like Muhammad Ali, he refuses to be inducted in the first place, he risks up to five years and a $10,000 fine after trial as a draft dodger.* In San Francisco two weeks ago, a federal district court did rule that a potential draftee need not wait until induction before he challenges his classification in the court, but that ruling is still to be tested in higher courts.