Curbing the Boards

When David Earl Gutknecht laid his draft card at the feet of a federal marshal in Minneapolis during a Viet Nam War protest in 1967, Selective Service Director Lieut. General Lewis B. Hershey was not amused. After similar acts of defiance by other potential draftees, Hershey sent a memorandum encouraging local draft boards to discipline the protesters by accelerating their inductions as rapidly as Selective Service regulations would permit. Thereupon Gutknecht's draft board declared him "delinquent";* six days later he was jumped ahead of nondelinquent registrants and ordered drafted. He refused to submit and was convicted and sentenced to four years in prison.

In a unanimous decision, the Supreme Court has just reversed his conviction, declaring such discipline punitive and illegal. It was the court's second recent slap at vindictive draft boards. In December, 1968, it ruled that boards could not judge a man delinquent and then deprive him of statutory exemptions from military service such as those granted to divinity students. In the latest ruling, written by Justice William O. Douglas, the court said that Congress never intended to give the Selective Service "freewheeling authority to ride herd on the registrants, using immediate induction as a disciplinary or vindictive measure." The board's action, said Douglas, was "a type of administrative absolutism not congenial to our lawmaking traditions." Justice Potter Stewart and Chief Justice Warren Burger concurred, but on the narrower grounds that the draft board had violated Selective Service rules by starting Gutknecht's speedup before giving him a chance to challenge his delinquent status.

The court made it clear that the Government still can prosecute young men in court for violating the regulation that requires them to keep their cards. So Gutknecht is not off the hook. And like other young men currently "delinquent" for similar reasons, he is back in the status that he held before his act of defiance. Gutknecht was 1A.

* A designation applied to registrants for violations from failure to keep their draft cards to not reporting changes in address.

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