December 16, 1971
Page 47350
REGULATIONS ON THE DRAFT
Mr. JAVITS. Mr. President, on November 22, 1971, the Senator from Massachasetts (Mr. KENNEDY) and I, joined by 18 of our colleagues, wrote Director Curtis Tarr of the Selective Service System to express our concern with the proposed regulations to implement the procedural rights of registrants guaranteed by the new draft law. In particular we noted several proposed changes governing personal appearances and appeals generally by registrants, which did not, in our opinion, comply with the letter and intent of the new statute.
By publication in the Federal Register of December 9, 1971, Director Tarr has implemented several new regulations. I am pleased to note that the majority of those regulations dealing with procedural rights of registrants, with which we were so deeply concerned, have not been made effective. Director Tarr has indicated that these will be reexamined and republished at a later date for public comment.
Mr. President, draft board decisions are frequently more important than court decisions in criminal cases. Underlying the draft should be the principles of administrative simplicity, efficiency and due process. For these reasons, I coauthored, along with Senator KENNEDY, amendments providing for procedural rights for registrants and prepublication requirements for regulations affecting registrants.
In enacting the new draft law the Congress sought to join with the President in seeking as fair and as equitable a draft system as possible, consistent with the normal guarantees of due process and the need for simplicity and efficiency. The decision by Director Tarr to revise many of the regulations comes as a welcome response to our letter of December 22, 1971, and demonstrates an awareness on the part of Selective Service that it is the responsibility of the Government to provide as fair and as equitable a draft system as possible.
I ask unanimous consent that the text of the letter written to Director Tarr on November 22, 1971, and an article published in the New York Times, commenting on the decision to revise many of the regulations, be printed in the RECORD.
There being no objection, the items were ordered to be printed in the RECORD, as follows:
PROPOSED CHANGES IN DRAFT WITHDRAWN
WASHINGTON, December 10 – The Selective Service System withdrew today several proposed changes in regulations governing the draft following complaints from local draft boards and the public.
The proposed changes had involved new procedures for appearances before local and appeal boards and the reopening of classifications. The system had also proposed a revision of the conscientious objector form.
Under the proposed changes a person appearing before a draft or appeal board would have been entitled to a minimum of 15 minutes. A registrant could present three witnesses in his behalf before the local board and none before the appeal board.
Many local boards had complained that the 15-minute minimum would allow registrants to tie up proceedings by filibustering, while some persons complained that the 15-minute period would be used as a time limit, making it more difficult to get deferments.
The Selective Service director, Curtis W. Tarr, said that no personal appearances or appeals would be heard until new regulations could be formulated.
This will take a minimum of six weeks because the law dictates that any regulations first be reviewed by a group of 10 Government agencies and then published in the Federal Register after which a 30-day period for criticism is mandatory. The action halts the induction of all men eligible for appeal hearings.
Under the proposals withdrawn today, draft boards would have been given the option of declining to reopen a registrant's classification even after the presentation of new evidence that could make him eligible for reclassification.
Selective Service also decided against issuing a revised conscientious objector form that would have required applicants for such status to answer 30 questions rather than four.
In addition, the system withdrew a change that would have limited registrants to 15 days for making an appeal of their classification from the time classification notices were mailed. They are now given 30 days. Many members of Congress said the 15-day limit violated the spirit of the new draft law by making it more difficult to get deferments for all except those who had them last June 30.
Draft provisions put into effect today included the ending of undergraduate student deferments except for those eligible during the last quarter or semester of the 1970-71 academic year.
Also, non-immigrant aliens are now not required to register and no immigrant alien is subject to induction until after one year of residence in the United States. In the past, non-immigrants, with certain exceptions, were required to register and were eligible for induction after they had resided in United States for one year.
DRAFT CALL FILLED
WASHINGTON, December 10. – Drafting of men into the armed forces stopped today until at least late next month. The drafting of men was halted for the usual Christmas-New Year holiday, and Selective Service said the November-December draft call of 10,000 has been filled.
Meanwhile, the Army announced that thousands of first-term draftees and volunteers due for discharge next year would be released up to six months early to bring Army strength down to 892,000 by June 30 as ordered by Congress. It was believed that the reductions would affect about 60,000 G.I.'s.
The discharges will be mandatory except for those men and women who indicate in writing that they plan to re-enlist for a second term, the Army said. The new policy is effective immediately and will remain in effect until June 30.
U.S. SENATE,
Washington, D.C.,
November 22, 1971.
Dr. CURTIS W. TARR,
Director, Selective Service System,
Washington, D.C.
DEAR DR. TARR: As you know, we were active in seeking to assure the procedural rights of registrants in the recent legislation extending the draft. Therefore, we have examined with great interest the regulations which you have proposed to implement the new provisions. There are a number of provisions of the regulations about which we are particularly concerned, and which we would urge you to revise.
First, under section 1626.2, the time for filing an appeal from the decision of a local board begins to run on the date the local board mails Form SSS 110 to the registrant. While this date may be reasonable in the case of registrants who receive the Form only after a personal appearance (if one has been requested) pursuant to section 1624.1 (b) and section 1624.6(b), it is clearly unreasonable as to registrants who receive Form SSS 110 first and who subsequently request a personal appearance before the local board but are unsuccessful.
In this latter case no new Form SSS 110 is mailed after the decision of the local board; rather, a letter is then sent to the registrant informing him of the decision under section 1624.5. In such case the time for requesting an appeal should not begin to run until the mailing of the letter notifying the registrant of the local board's decision not to reclassify him.
Otherwise the registrant is being asked to appeal from a decision prior to its taking place. Such a situation would appear to deprive the registrant of traditional due process guarantees for full administrative review of Selective Service decisions.
Second, the time limits for taking appeals and requesting personal appearances at various stages in classification proceedings have been reduced to 15 days from mailing of the classification notice. Formerly, the time allowed was 30 days. We believe that the proposed reduction in time from 30 days to 15 days within which a registrant must exercise his procedural rights may result in many registrants losing them because they will not be aware of the change. Registrants are not trained legal personnel and are not used to deadlines which can cut off substantial rights involving life and liberty. Also, practically speaking, 15 days does not leave enough time for mail communications to arrive and still leave a registrant an adequate time within which to prepare his response. We also note that no provision is allowed for overseas registrants or other registrants living great distances from their local boards. Formerly, an overseas registrant was allowed 60 days to exercise his appeal rights, yet under the proposed regulations he will have the same 15 days as the registrant living near his board. In view of the fact that 60 days was considered necessary under the old regulations, we do not believe that 15 days is enough time now.
Third, we are deeply concerned that the recent discontinuance of the practice of issuing to registrants classified I-A a copy of Selective Service Form 217 advising him of various procedural rights will result in a denial of substantial rights in that registrants will not have access to the information which they need to protect their rights. The proposed regulations do not provide for the issuance of such a form. We would urge you to consider reinstating this practice – and issuing the form both in English and in Spanish – in order that a registrant's rights will be explained to him in non-legal and readily understandable language at a time when he can still exercise those rights.
Fourth. section 1624.4(e) prohibits representation of registrants by anyone acting as an attorney or legal counsel before a local board. A similar provision is contained in section 1627.4(d) concerning appeals to the National Selective Service Appeal Board.
While it is true that the provision in the Senate bill which would have permitted a registrant to be accompanied by counsel before his local board was struck by the conferees, and is thus not included in the law, there is no evidence that Congress intended to prohibit local boards, in their discretion., from permitting a registrant to be accompanied by an attorney to advise him. Thus, we would hope that the regulations would be revised to at least permit local and appeal boards, in their discretion, to allow registrants to be accompanied by an attorney of their choice.
Alternatively, the regulations might be clarified so as to make clear that it is "representation" rather than mere accompaniment, that is prohibited.
In this regard, we are particularly surprised at learning that you have abolished the government appeal agents. Much of the opposition to the enactment of a right to counsel was based on the availability of government appeal agents. Yet now that source of assistance has been removed without any provision made for the appeal agent function to be filled in another way. We would hope you would reconsider this decision, grant more opportunities for legal representation, or transfer the standing to request reopening and the appeal powers of the government appeal agent to the advisors to registrants.
Also, relatives and employers are denied their previous standing under the proposed new regulations to make any request for classification or appeal in behalf of a registrant. We would hope that this might be reconsidered.
Fifth, under section 1626.1, appeal is permitted only from classification into classes 1-A, 1-A-0, or 1-0, although the registrant is entitled to be placed in the "lowest" class for which he is qualified. For example, a registrant who qualifies both as a surviving son (eligible for 4-G) and divinity student (2-D) is harmed if placed in the latter category, since 2-D is a "deferment" extending draft liability from age 26 to 35 while 4-G, an "exemption" does not extend liability.
Sixth, the prepublication requirements of section 13(b) have not been followed, particularly with regard to the recent issuance of amendments to Local Board Memorandum 99. It was the intention of the Senate, and the legislative debate so demonstrates, that regulations requiring prepublication including LBM's, guidelines such as those present in Form 150, and all those directives that have significant impact on the registrants, including letters to the state directors (LASD). For instance, the LBM 99 amendment establishes multiple "extended priority groups." Also LASD(00-23) establishes a II-A deferment for doctors based on "community essentiality." It was our intention that all of these directives be considered as "regulations" requiring prepublication and an opportunity for comment.
Seventh, we are concerned that a traditional appeal route for reconsideration by the appeal board "when either the Director of Selective Services deems it to be in the National interest or necessary to avoid an injustice" has been removed by the deletion of section 1626.61.
Eighth, we are concerned that the proposed regulations fail to carry out the understanding of the Committee of Conference with regard to the decision of the U.S. Supreme Court in Ehlert v. United States, 402 U.S. 99. The Conference Report on page 22 notes that local boards have discretionary authority in unusual circumstances to consider claims for conscientious objector status after the mailing of an induction order. However, the proposed regulations, in section 1621.11, specifically forbid a local board from issuing Selective Service Form 150 after the mailing of an induction order, thereby implying that the board may not consider a claim for conscientious objector status arriving at the board after the mailing of the induction order.
Finally, sections 1622.22(b) and 1622.25(a) provide for continuing student deferments for students at junior colleges and for students in a regular four year college respectively. However, no provision is made for a junior college student eligible for a deferment under section 1622.22(b) to transfer to a four year program and thereby retain his deferment under section 1622.25(a). Thus, the registrant in a junior college for two years who transfers to a four year school to complete his bachelor's program is accorded different treatment than the registrant who began his study at the four year school, although both will finish their studies at the same time.
Such different treatment was not, in our judgment, intended by Congress. Rather, the intent was to continue existing classification practices for all students enrolled in school during the 1970-1971 academic year.
We believe that the debate on the draft extension bill and the conference and committee reports accompanying the bill clearly indicate a Congressional intent to assure a fair and equitable draft system with protection of due process to registrants while assuring the efficient operation of the Selective Service System. We believe that reconsideration of these regulations would be in keeping with that intent.
Sincerely,
Edward M. Kennedy, Clifford P. Case, Quentin N. Burdick, Philip A. Hart, George McGovern, Frank E. Moss, Gaylord Nelson, Ted Stevens, John V. Tunney, Gale W. McGee.
Jacob K. Javits, Frank Church, Hubert H. Humphrey, Daniel K. Inouye, Walter F. Mondale, Edmund S. Muskie, Richard S. Schweiker, Adlai E. Stevenson III, Harrison A. Williams, Jr., Thomas J. McIntyre.