McKart v. United States/Concurrence Douglas

Mr. Justice DOUGLAS, concurring.

The principle of Oestereich v. Selective Service System Local Board No. 11, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402, should dispose of this case. There a registrant was plainly entitled to a statutory exemption from service because he was a divinity student. Yet he was denied the exemption because, having burned his draft card, he was classified as a 'delinquent' by Selective Service. He challenged that action in a civil suit for pre-induction review; and we granted relief.

This is not a suit for pre-induction review, but a defense tendered in a criminal prosecution. This statutory exemption is as clear as the one in Oestereich. The 'sole survivin' son of a family whose father had been killed in action is exempt and there can hardly be any argument that petitioner is such a 'son' though both his father and mother are dead. He is indeed the last male heir of the line and therefore one who Congress charitably decided should not be exposed to the chance of death in warfare.

If Oestereich could raise his claim to statutory exemption in a civil suit at a pre-induction stage, it follows a fortiori that petitioner can do so in a criminal prosecution for failure to obey the Act's mandate.

The truth of the matter is that it was the Selective Service Board that acted in a 'lawless' manner; and when its error is so egregious, it would be a travesty of justice to require a registrant-whether or not sophisticated-to pursue the administrative remedies that are designed for quite different categories of cases.