(dissenting).
I cannot agree with my colleagues. The command of the statute is clear and precise:
“Nothing contained in this title shall be construed to require any person to be subject to combatant training and service in the armed forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form. * * * ” 50 U.S.C.Appendix, § 456 (j), 65 Stat. 75, 83, 86.
The Trial Court’s findings of fact are clear and precise on this point:
“The Court is of the opinion and so finds that the defendant became a minister and a conscientious objector on or before May 9, 1959, prior to the mailing of the Order to Report for Induction on August 25, 1959, * *
The Appellant registered on September 14, 1954. He was classified 1-A on April 23, 1957. On August 12, 1959, the Board sent him a current information questionnaire. On August 25, 1959, he was ordered to report for induction on September 9, 1959. On September 2, 1959, the Appellant requested a reopening of his classification and that a Conscientious Objector Form 150 be sent him for filing. • The form was properly completed and filed on September 14, 1959. In the interim the Board, acting upon advice of the State Director, postponed the Appellant’s induction until its “October call”. On September 19, 1959, the Board considered Appellant’s case and reached the conclusion that the new evidence submitted did not show a change of status subsequent to his induction notice resulting from circumstances over which Appellant had no control. He was ordered to report for induction on October 1, 1959.
I leave to the theologians the intriguing conclusion of both the Board and the Court that the registrant’s change of status did not result from circumstances over which the registrant had no control. Obviously, if he in good faith subscribed to his religious objections to military service as early as May 9, 1959, as the Court below found, then the only way he could control his then status was to abnegate his conscientious convictions. It seems to me that it was these very religious convictions which the statute clearly recognized and respected.
I do not believe the regulation (32 CFR § 1625.2) was intended to cover this situation. Keene v. United States, 266 F.2d 378 (10 Cir. 1959) is distinguishable because Keene was not a religious objector. To the extent that Keene holds that the Board’s revocation of his order to report dated August 25th did not toll the provisions of the regulation prohibiting reconsideration, I must disagree. The Board itself voluntarily set aside its order of August 25, 1959; thus the effective date of registrant’s order for induction was September 19, 1959, which was after the change of status took place and after the Board received notice and considered same.
Finally, I think registrant was entitled to be heard on the Board’s decision not to reconsider his status. In my view this Appellant’s only offense against the regulations was his failure to report his change of status within ten days after it occurred — on this record not later than May 9, 1959. Even this is in some doubt. A reading of Regulation 1625.1(b) with 1625.1(c) could make it apply only to those cases in which a registrant had been given a deferred status. United States v. Vincelli, 215 F.2d 210 (2 Cir. 1954) on petition for rehearing, 216 F.2d 681 (2 Cir. 1954). These regulations are not to be construed strictly against the registrant. United States ex rel. Berman v. Craig, 207 F.2d 888 at 891 *279(3 Cir. 1953); United States v. Greene, 220 F.2d 792 at 794 (7 Cir. 1955).
Even if one construes the exemption of the statute as not absolute but controllable by regulation, the regulation to be valid must be reasonable and reasonably applied. If we also assume that Beaver violated a reasonable regulation by failing to advise his local Board of a change of status, I think it unreasonable for the Board to stand on this and deny him reconsideration, in face of the conceded fact that he was a conscientious objector as early as May 9, 1959. At the Board meeting on September 19, when they had all the facts, it was arbitrary to slam the door in his face and refuse the exemption on a narrow and wooden interpretation of the rule about a “change of status”, which is of doubtful application anyway. The Board, it seems, was too intent on vindicating the rule, and too indifferent to the substantial rights of the defendant.
The statute gives this man exemption, the Army does not want him, the jail will not change his religious beliefs, nor will the will of the people to fight for their country be sapped by a generous adherence to the philosophy behind this law. United States v. Underwood, 151 F.Supp. 874 (E.D.Pa.1955). See also the language of Mr: Justice Frankfurter’s dissent dealing with another aspect of this law.
“Considering the traditionally high respect that dissent, and particularly religious dissent, has enjoyed in our view of a free society, this Court ought not to reject a construction of congressional language which assures justice in cases where the sincerity of another’s religious convictions is at stake and where prison may be the alternative to an abandonment of conscience. The enemy is not yet so near the gate that we should allow respect for traditions of fairness, which has heretofore prevailed in this country, to be overborne by military exigencies.” (1952) United States v. Nugent, 346 U.S. 1 at page 12, 73 S.Ct. 991, at page 997.
I would reverse the judgment because the Appellant is clearly within the category of those exempt by the statute.