MR. JUSTICE DOUGLAS delivered the opinion of the Court.This case presents an important question under the Military Selective Service Act of 1967, 62 Stat. 604, as amended, 65 Stat. 75, 81 Stat. 100.Petitioner registered with his Selective Service Local Board and was classified I-A.  Shortly thereafter, he received a II-S (student) classification.  In a little over a year, he notified the Board that he was no longer a student, and was classified I-A.  Meanwhile he had asked for an exemption as a conscientious objector.  The Page 396 U. S. 297 Board denied that exemption, reclassifying him as I-A, and he appealed to the State Board.  While that appeal was pending, he surrendered his registration certificate and notice of classification by leaving them on the steps of the Federal Building in Minneapolis with a statement explaining he was opposed to the war in Vietnam.  That was on October 16, 1967.  On November 22, 1967, his appeal to the State Board was denied.  On November 27, 1967, he was notified that he was I-A.On December 20, 1967, he was declared delinquent by the local board.  On December 26, 1967, he was ordered to report for induction on January 24, 1968.  He reported at the induction center, but, in his case, the normal procedure of induction was not followed.  Rather, he signed a statement, "I refuse to take part, or all, [sic] of the prescribed processing."  Thereafter he was indicted for willfully and knowingly failing and neglecting "to perform a duty required of him" under the Act.  He was tried without a jury, found guilty, and sentenced to four years' imprisonment.  283 F. Supp. 945.  His conviction was affirmed by the Court of Appeals.  406 F.2d 494.  The case is here on a petition for a writ of certiorari.  394 U.S. 997.IAmong the defenses tendered at the trial was the legality of the delinquency regulations which were applied to petitioner.  It is that single question which we will consider.By the regulations promulgated under the Act, a local board may declare a registrant to be a "delinquent" whenever he"has failed to perform any duty or duties required of him under the selective service law other than the duty to comply with an Order to Report for Induction (SSS Form No. 252) or the duty to comply Page 396 U. S. 298 with an Order to Report for Civilian Work and Statement of Employer (SSS Form No. 153). . . ."32 CFR § 1642.4.  In this case, petitioner was declared a delinquent for failing to have his registration certificate (SSS Form No. 2) and current classification notice (SSS Form No. 110) in his personal possession at all times, as required by 32 CFR §§ 1617.1 and 623.5, respectively.The consequences of being declared a delinquent under § 1642.4 are of two types:  (1) Registrants who have deferments or exemptions may be reclassified in one of the classes available for service, I-A, I-A-O, or I-O, whichever is deemed applicable.  32 CFR § 1642.12.  (2) Registrants who are already classified I-A, I-A-O, or I-O, and those who are reclassified to such a status, will be given first priority in the order of call for induction, requiring them to be called even ahead of volunteers for induction.  32 CFR § 1642.13.  The latter consequence deprives the registrant of his previous standing in the order of call as set out in 32 CFR § 1631.7. [Footnote 1]The order-of-call provision in use when petitioner was declared "delinquent" [Footnote 2] is set out in 32 CFR § 1631.7(a).  The provision lists, in order, six categories of registrants, and provides that the registrants shall be selected and ordered to report for induction according to the order of those categories.  The first category is delinquents; the next category is volunteers; the other four categories consist of nonvolunteers.  Page 396 U. S. 299 In this case, the petitioner was in the third of the six categories at the time he was declared to be a "delinquent."  By virtue of the declaration of delinquency, he was moved to the first of the categories which meant, according to the brief of the Department of Justice, that"it is unlikely that petitioner, who was 20 years of age when ordered to report for induction, would have been called at such an early date had he not been declared a delinquent."If a person who is ordered to report for induction or alternative civilian service refuses to comply with that order, he subjects himself to criminal prosecution.  See 32 CFR §§ 1642.41, 1660.30.There is no doubt concerning the propriety of the latter criminal sanction, for Congress has specifically provided for the punishment of those who disobey selective service statutes and regulations in § 12 of the Military Selective Service Act of 1967, 50 U.S.C.App. § 462 (1964 ed., Supp. IV).  The question posed by this case concerns the legitimacy of the delinquency regulations, which were applied to the petitioner, so as to deprive him of his previous standing in the order of call.IIThere is a preliminary point which must be mentioned, and that is the suggestion that petitioner should have taken an administrative appeal from the order declaring him "delinquent," and that his failure to do so bars the defense in the criminal prosecution.The pertinent regulation is 32 CFR § 1642.14, which gives a delinquent who "is classified in or reclassified into Class I-A, Class I-A-O or Class I-O" three rights:(a) the right to a personal appearance, upon request, "under the same circumstances as in any other case";(b) the right to have his classification reopened "in the discretion of the local board"; and Page 396 U. S. 300(c) the right to an appeal "under the same circumstances and by the same persons as in any other case."  (Emphasis added.)The right to a personal appearance "in any other case" is covered by 32 CFR § 1624.1(a).  That section gives the right to "[e]very registrant after his classification is determined by the local board," provided a request is made therefor within 30 days.  (Emphasis added.)  The action taken against this petitioner, however, did not involve classification.  The term "classification" is used exclusively in the regulations to refer to classification in one of the classes determining availability for service, e.g., I-A, I-O.  See 32 CFR pt.s. 1621-1623.  "Delinquency" is not such a classification, and a registrant is "declared" a delinquent, not "classified" as a delinquent.  See 32 CFR pt. 1642.The right to reopen his classification is also irrelevant to petitioner, as he is not attacking his classification, but only his accelerated induction.The right to appeal "as in any other case" is covered by 32 CFR § 1626.2(a).  That section provides that "[t]he registrant . . . may appeal to an appeal board from the classification of a registrant by the local board."  (Emphasis added.)Again, since petitioner was not classified in conjunction with his delinquency, but only had his induction accelerated, it would mean that he did not have the right to an appeal under the regulations. [Footnote 3]  We are not advised in Page 396 U. S. 301 any authoritative way that this interpretation of the regulations is contrary to the administrative construction of them or to the accepted practice. [Footnote 4]IIIWe come then to the merits.  The problem of "delinquency" goes back to the 1917 Act, 40 Stat. 76, as shown in the 396 U.S. 295app|>Appendix to this opinion.  The present "delinquency" regulations with which we are concerned stem from the 1948 Act, 62 Stat. 604.The regulations issued under the 1948 Act were substantially identical to the present delinquency regulations, 32 CFR pt. 1642.  Nothing in the 1948 Act or in any prior Act makes reference to delinquency or delinquents.  The regulations purport to issue under the authority of § 10 of the 1948 Act.  Section 10, however, relates neither to selection (§ 5) nor to deferments and exemptions (§ 6), but simply to the administration of the Act as delegated to the President:  "The President is authorized -- (1) to prescribe the necessary rules and regulations to carry out the provisions of this title."  62 Stat. 619. Page 396 U. S. 302The delinquency provisions of 32 CFR pt. 1642 survived the Military Selective Service Act of 1967 largely intact.  Again, however, there is nothing to indicate that Congress authorized the Selective Service System to reclassify exempt or deferred registrants for punitive purposes and to provide for accelerated induction of delinquents.  Rather, the Congress reaffirmed its intention under § 12 (50 U.S.C.App. § 462 (1964 ed., Supp. IV)), to punish delinquents through the criminal law.It is true, of course, that Congress referred to "delinquents" in § 6(h)(1), 81 Stat. 102, 50 U.S.C.App. § 456(h)(1) (1964 ed., Supp. IV):"As used in this subsection, the term 'prime age group' means the age group which has been designated by the President as the age group from which selections for induction into the Armed Forces are first to be made after delinquents and volunteers."(Emphasis added.)  This reference concerns only an order-of-call provision which institutes a call by age groups, 32 CFR § 1631.7(b), a provision which has never been used.  This casual mention of the term "delinquents," moreover, must be measured against the explicit congressional provision for criminal punishment of those who violate the selective service laws, 50 U.S.C.App. § 462 (1964 ed., Supp. IV), the congressional provision for exemptions and deferments, 50 U.S.C.App. § 456 (1964 ed., Supp. IV), and congressional expressions emphasizing the importance of an impartial order of call, 50 U.S.C.App. § 455 (1964 ed., Supp. IV); H.R.Conf.Rep. No. 346, 90th Cong., 1st Sess., 9-10.  Thus it was that the Solicitor General stated in his brief in Oestereich v. Selective Service Board, No. 46, O.T. 1968, 393 U. S. 233:"It is difficult to believe that Congress intended the local boards to have the unfettered discretion Page 396 U. S. 303 to decide that any violation of the Act or regulations warrants a declaration of delinquency, reclassification and induction. . . ."Brief for the United States 54.  Judge Dooling stated in United States v. Eisdorfer, 299 F. Supp. 975, 989:"The delinquency procedure has no statutory authorization and no Congressional support except what can be spelled out of the 1967 amendment of 50 U.S.C.App. § 456(h)(1). . . .  The delinquency regulations, moreover, disregard the structure of the Act; deferments and priorities of induction, adopted in the public interest, are treated as if they were forfeitable personal privileges."Oestereich involved a case where a divinity school student with a statutory exemption and a IV-D classification was declared "delinquent" for turning in his registration certificate to the Government in protest against the war in Vietnam.  His Board thereupon reclassified him as I-A.  After he exhausted his administrative remedies, he was ordered to report for induction.  At that point, he brought suit in the District Court for judicial review of the action by the Board.  We held that, under the unusual circumstances of the case, pre-induction judicial review was permissible prior to induction, and that there was no statutory authorization to use the "delinquency" procedure to deprive a registrant of a statutory exemption.  We said:"There is no suggestion in the Legislative history that, when Congress has granted an exemption and a registrant meets its terms and conditions, a Board can nonetheless withhold it from him for activities or conduct not material to the grant or withdrawal Page 396 U. S. 304 of the exemption.  So to hold would make the Boards free-wheeling agencies meting out their brand of justice in a vindictive manner.""Once a person registers and qualifies for a statutory exemption, we find no legislative authority to deprive him of that exemption because of conduct or activities unrelated to the merits of granting or continuing that exemption."393 U.S. at  393 U. S. 237.The question in the instant case is different, because no "exemption," no "deferment," no "classification" in the statutory sense, is involved.  "Delinquency" was used here not to change a classification, but to accelerate petitioner's induction from the third category to the first, and it was that difference which led the Court of Appeals to conclude that what we said in Oestereich was not controlling here.Deferment of the order of call may be the bestowal of great benefits, and its acceleration may be extremely punitive.  As already indicated, the statutory policy is the selection of persons for training and service "in an impartial manner."  50 U.S.C.App. § 455(a)(1) (1964 ed., Supp. IV).  That is the only express statutory provision which gives specific content to that phrase.  That section does permit people registered at one time to be selected "before, together with, or after" persons registered at a prior time.  Moreover, those who have not reached the age of 19 are given a deferred position in the order of call.  But those variations in the phrase "in an impartial manner" are of no particular help in the instant case, except to underline the concern of Congress with the integrity of that phrase.We know from the legislative history that, while Congress did not address itself specifically to the "delinquency" Page 396 U. S. 305 issue, it was vitally concerned with the order of selection, as well as with exemptions and deferments.  Thus, in 1967, a Conference Report brought House and Senate together against the grant of power to the President to initiate "a random system of selection" -- a grant which, it was felt, would preclude Congress from "playing an affirmative role" in the constitutional task of "raising armies."  H.R.Conf.Rep. No. 346, supra, at 9-10.  It is difficult to believe that, with that show of resistance to a grant of a more limited power, there was acquiescence in the delegation of a broad, sweeping power to Selective Service to discipline registrants through the "delinquency" device.The problem of the order of induction was once more before the Congress late in 1969.  Section 5(a)(2) of the 1967 Act, 50 U.S.C.App. § 455(a)(2) (1964 ed., Supp. IV), provided:"Notwithstanding the provisions of paragraph (1) of this subsection, the President in establishing the order of induction for registrants within the various age groups found qualified for induction shall not effect any change in the method of determining the relative order of induction for such registrants within such age groups as has been heretofore established and in effect on the date of enactment of this paragraph, unless authorized by law enacted after the date of enactment of the Military Selective Service Act of 1967."While § 5(a)(2) gave the President authority to designate a prime age group for induction, it required him to select from the oldest first within the group.  S.Rep. No. 91-531, 91st Cong., 1st Sess., 1.  The Act of November 26, 1969, 83 Stat. 220, repealed § 5(a)(2) Page 396 U. S. 306 pursuant to a request of the President that a random system of selection be authorized.  See S.Rep. No. 91531, supra, at 3-4; H.R.Rep. No.91-577, 91st Cong., 1st Sess., 2, 9. [Footnote 5]  The random system has now been put in force. [Footnote 6]  It applies, of course, only prospectively.  But its legislative history, as well as the concern of the Congress that the order in which registrants are inducted be achieved "in an impartial manner," emphasizes a deep concern by Congress with the problems of the order of induction, as well as with those of exemptions, deferments, and classifications.While § 5(a)(1) provides that "there shall be no discrimination against any person on account of race or color," 50 U.S.C.App. § 455(a)(1) (1964 ed., Supp. IV), there is no suggestion that, as respects other types of discrimination, the Selective Service has freewheeling authority to ride herd on the registrants using immediate induction as a disciplinary or vindictive measure.The power under the regulations to declare a registrant "delinquent" has no statutory standard, or even guidelines.  The power is exercised entirely at the discretion of the local board.  It is a broad, roving authority, a type of administrative absolutism not congenial to our law-making traditions.  In Kent v. Dulles, 357 U. S. 116,  357 U. S. 128-129, we refused to impute to Congress the grant of "unbridled discretion" to the Secretary of State to issue or withhold a passport from a citizen "for any substantive reason he may choose."  Id. at  357 U. S. 128.  Where the Page 396 U. S. 307 liberties of the citizen are involved, we said that "we will construe narrowly all delegated powers that curtail or dilute them."  Id. at  357 U. S. 129.  The Director of selective Service described the "delinquency" regulations as designed "to prevent, wherever possible, prosecutions for minor infractions of rules" during the selective service processing. [Footnote 7]  We search the Act in vain for any clues that Congress desired the Act to have punitive sanctions apart from the criminal prosecutions specifically authorized.  Nor do we read it as granting personal privileges that may be forfeited for transgressions that affront the local board.  If federal or state laws are violated by registrants, they can be prosecuted.  If induction is to be substituted for these prosecutions, a vast rewriting of the Act is needed.  Standards would be needed by which the legality of a declaration of "delinquency" could be judged.  And the regulations, when written, would be subject to the customary inquiries as to infirmities on their face or in their application, including the Page 396 U. S. 308 question whether they were used to penalize or punish the free exercise of constitutional rights.Reversed
U.S. Supreme CourtGutknecht v. United States, 396 U.S. 295 (1970)Gutknecht v. United StatesNo. 71Argued November 20, 1969Decided January 19, 1970396 U.S. 295SyllabusWhile petitioner's I-A Selective Service classification was on appeal from the local board's denial of his application for exemption as a conscientious objector, petitioner surrendered his registration certificate and classification notice by leaving them, along with a statement against the war in Vietnam, on the steps of the federal building.  The State Board denied the exemption and classified petitioner I-A.  He was thereafter declared delinquent by his local board for failing to retain his registration and classification papers in his possession at all times as required by the Selective Service regulations.  Pursuant to the regulations promulgated under the Military Selective Service Act of 1967, a local board may declare a registrant a "delinquent" for failure to perform duties required by the Selective Service law.  A registrant in I-A status who is declared delinquent is, under 32 CFR § 1642.13, assigned first priority in the order of induction call, depriving him of his previous standing in the order of call.  Petitioner was ordered to report for induction about a month after he had been declared a delinquent.  In view of petitioner's age (20), it is unlikely that he would have been called at that time for induction had he not been declared a delinquent.  Following petitioner's refusal on the designated date to be processed for induction, he was indicted and later convicted for willfully and knowingly failing "to perform a duty required of him" under the Act.  His conviction was affirmed on appeal.  Petitioner attacks as invalid the Selective Service regulations accelerating the induction of one declared to be a delinquent.Held:1. Petitioner's failure to appeal administratively from the order declaring him delinquent does not deprive him of standing to contest his conviction, as the regulations conferring hearing rights apply to those contesting classifications made by local boards, and not to those like petitioner whose delinquency rests on undisputed facts, or to those whose induction has merely been accelerated.  Pp.  396 U. S. 299-301.2. The delinquency regulations under which petitioner was punitively deprived of the order-of-call preference accorded to Page 396 U. S. 296 him are not authorized by the Act, and are therefore void.  Pp. 301-308.(a) Congress intended to punish delinquents through the criminal law, and not through a delinquency procedure, which has no statutory sanction.  Pp. 302-303.(b) Deferment of the order of call may bestow great benefits, and its acceleration may be extremely punitive.  Pp. 304-306.(c) The power under the Selective Service regulations to declare a registrant "delinquent" lacks statutory standards or guidelines, without which the legality of a delinquency declaration cannot be judged.  Pp. 306-308.406 F.2d 494, reversed.