Syllabus.

McKART v. UNITED STATES.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT.

No. 403. Argued February 27, 1969.-Decided May 26, 1969.

Petitioner had been classified IV-A (sole surviving son status). When the Selective Service Board learned of the death of petitioner's mother, it reclassified him I-A (available for military service), on the theory that the IV-A classification became improper when the "family unit" ceased to exist. Petitioner did not appeal the reclassification. Upon his failure to report as ordered for his pre-induction physical examination, he was declared a delinquent. He failed to report for induction as ordered and was indicted for such failure and tried. His only defense was that he was improperly denied a sole surviving son exemption. The District Court held that defense unavailable because petitioner had failed to exhaust the administrative remedies provided by the Selective Service System. Petitioner was convicted and the Court of Appeals affirmed. Held:

1. Petitioner was entitled to exemption from military service, as the termination of the "family unit" was not intended by Congress to warrant ending the sole surviving son exemption under § 6 (0) of the Selective Service Act. Pp. 189-192.

2. Petitioner's failure to appeal his classification and his failure to report for a pre-induction physical examination do not foreclose his challenging the validity of his classification as a defense to criminal prosecution for refusal to submit to induction. Pp. 192-203.

(a) Though the doctrine of exhaustion of administrative remedies is applied in a number of different situations, it is subject to numerous exceptions. P. 193.

(b) The exhaustion doctrine must be tailored to fit the peculiarities of the administrative system Congress created. At the heart of the Selective Service System are the local boards which register and classify those subject to the Selective Service Laws, from whose action the registrant has the right of appeal. P. 195.

(c) Although the Act as it stood when petitioner was tried provided that local board decisions were "final," a registrant

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charged with failure to report can raise the defense that there was "no basis in fact" for his classification. See Estep v. United States, 327 U. S. 114, 123. P. 196.

(d) This case does not involve premature resort to the courts (since all administrative remedies are now foreclosed), but failure to have utilized the particular administrative process of appeal. Pp. 196-197.

(e) When petitioner was reclassified the statute did not require the registrant to raise all his claims before an appeal board. P. 197.

(f) Determining whether petitioner is entitled to the sole surviving son exemption (which is solely a matter of statutory interpretation) requires no particular expertise on the appeal board's part as many Selective Service questions do, and judicial review would not be significantly aided by that kind of additional administrative decision. Pp. 197–199.

(g) Failure to require exhaustion of administrative remedies in this case will not significantly encourage registrants to bypass available administrative remedies at the risk of criminal prosecution. Pp. 199–200.

(h) Petitioner is not being prosecuted for his failure to report for physical examination and such failure does not bar him from challenging the validity of his classification as a defense to his criminal prosecution. Falbo v. United States, 320 U. S. 549, distinguished. Pp. 201-203.

395 F. 2d 906, reversed and remanded.

George C. Pontikes argued the cause for petitioner. With him on the briefs was Marshall Patner.

Francis X. Beytagh, Jr., argued the cause for the United States. With him on the brief were Solicitor General Griswold, Assistant Attorney General Wilson, Beatrice Rosenberg, and Leonard H. Dickstein.

MR. JUSTICE MARSHALL delivered the opinion of the Court.

Petitioner was indicted for willfully and knowingly failing to report for and submit to induction into the

Armed Forces of the United States. At trial, petitioner's only defense was that he should have been exempt from military, service because he was the "sole surviving son" of a family whose father had been killed in action while serving in the Armed Forces of the United States. The District Court held that he could not raise that defense because he had failed to exhaust the administrative remedies provided by the Selective Service System. Accordingly, petitioner was convicted and sentenced to three years' imprisonment. The Court of Appeals affirmed, with one judge dissenting. United States v. McKart, 395 F. 2d 906 (C. A. 6th Cir. 1968). We granted certiorari. 393 U. S. 922 (1968).

I.

The facts are not in dispute. Petitioner registered with his local Selective Service board shortly after his 18th birthday and thereafter completed his classification

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1 "Any. person . . . who in any manner shall knowingly fail or neglect or refuse to perform any duty required of him under or in the execution of this title. or rules, regulations, or directions made pursuant to this title . . . shall, upon conviction in any district court of the United States of competent jurisdiction, be punished by imprisonment for not more than five years or a fine of not more than $10,000, or by both such fine and imprisonment . . . ." Selective Service Act of 1948, § 12, 62 Stat. 622, as amended, now § 12 of the Military Selective Service Act of 1967 (see 81 Stat. 100, §1 (a)), 50 U. S. C. App. § 462 (1964 ed., Supp. III).

2 "Except during the period of a war or a national emergency declared by the Congress after the date of the enactment of the 1964 amendment to this subsection [July 7, 1964], where the father or one or more sons or daughters of a family were killed in action or died in line of duty while serving in the Armed Forces of the United States, or subsequently died as a result of injuries received or disease incurred during such service, the sole surviving son of such family shall not be inducted for service under the terms of this title . . . unless he volunteers for induction." Selective Service Act of 1948, §6 (o), 62 Stat. 613, as amended, 50 U. S. C. App. § 456 (o).

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questionnaire. On that form he indicated that he was "the sole surviving son of a family of which one or more sons or daughters were killed in action . . . while serving in the Armed Forces of the United States . . . ." On February 25, 1963, petitioner's local board placed him in Class I-A, available for military service; he made no attempt to appeal that classification."

On March 23, 1964, he was ordered to report for a pre-induction physical, but failed to do so. He was declared a delinquent and ordered to report for induction on May 11, 1964. He failed to report, but instead wrote a letter to his local board indicating that his moral beliefs prevented him from cooperating with the Selective Service System. The local board replied by sending petitioner the form for claiming conscientious objector status. The board also referred to petitioner's indication in his original questionnaire that he was a sole surviving son and requested further information on that subject.

On May 20, 1964, petitioner returned the blank form, stating that he did not wish to be a conscientious objector. In response to the board's request for information about his claim to be a sole surviving son, petitioner indicated that his father had been killed in World War II. The local board, after consulting the State Director, again wrote petitioner requesting more information about his father. Petitioner supplied some of the information. The local board forwarded this information to the State

3 A registrant has the right to appear before his local board to contest his classification or to present new information to the board. 32 CFR §§ 1624.1, 1624.2 (1969). The board then determines whether or not to reconsider the registrant's classification. 32 CFR §§ 1624.2 (c), (d) (1969). Following the local board's decision, the registrant has the right to appeal to the state appeal board. 32 CFR §§ 1624.2 (e), 1625.13 (1969). A further appeal may be taken by the registrant to the National Selective Service Appeal Board only if one or more members of the state appeal board dissent from the board's decision. 32 CFR § 1627.3 (1969).

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Opinion of the Court.

Director, who requested the local board to reopen petitioner's classification: The board canceled his induction order and reclassified him IV-A, the appropriate classification for a registrant exempted as a sole surviving son. Petitioner remained in that classification until February 14, 1966.

Early in 1966, the local board learned of the death of petitioner's mother. After checking with the State Director, the board returned petitioner to Class I-A. The board rested this decision on the theory that a IV-A classification became improper when petitioner's "family unit" ceased to exist on the death of his mother. Petitioner was ordered to report for a pre-induction physical. He failed to report and was declared a delinquent and ordered to report for induction. He again failed to report and, after further investigation, his criminal prosecution followed."

II.

We think it clear that petitioner was exempt from military service as a sole surviving son. The sole surviving son exemption originated in the Selective Service Act of 1948, c. 625, § 6 (o), 62 Stat. 613. As originally enacted, that section provided exemption for the sole surviving son only "[w]here one or daughters of a family were killed in action . . . while

or more sons or

The Selective Service System Regulations require the local board to reopen a registrant's classification upon the written request of the State or National Director. 32 CFR § 1625.3 (a) (1969).

5 After petitioner failed to report for induction the second time, the State Director confirmed that petitioner's father had been killed in action and then requested advice of the National Director. The latter replied that "inasmuch as there is no family, it is not believed that [petitioner] would qualify for sole surviving son status." This information was then communicated to the local board and the case referred to the local United States Attorney. Petitioner's indictment followed.