(dissenting):
I respectfully dissent from the opinion of the Court.
Appellant’s sole contention is that his classification of I-A, which made him available for military service, was unlawful because his local draft board refused to give proper consideration to his claimed eligibility for the classification of conscientious objector,
The chronology of events leading to appellant’s indictment is important to a determination of this issue. Appellant was registered with Local Board No. 2 in Huntington, West Virginia. He was classified II-S (student) in December, 1961, and was reclassified I-A (available for military service) in December, 1963. On February 14, 1966, appellant was ordered to report for induction on March 14, 1966. On March 2, 1966, the board received a letter from appellant stating that he believed he was qualified classification as a conscientious objector. Appellant requested that he be permitted to file Selective Service Form No. 150 (application for conscientious objector classification), that his classification be reopened, and that he be granted a hearing. The Board sent appellant the requested form and, prior to return of this form by appellant, sent his file to the state Director for a recommendation, Upon receipt of the Director’s recommendation that the classification not be reopened, the Board informed appellant on March 7 that the induction order would remain in effect. The Board received appellant's completed Form 150 on March 9, and on that date again informed him that his classification would not be reopened. On March 14, appellant appeared at the induction center and refused to submit to induction.
*55The record makes clear that the State Director’s recommendation, which was followed by the Board, and also the Board’s determination subsequent to the receipt of Form 150, were based on the following regulation promulgated under the Selective Service Act:
The local board may reopen and consider anew the classification of a registrant (a) upon the written request of the registrant, the government appeal agent, any person who claims to be a dependent of the registrant, or any person who has on file a written request for the current deferment in a case involving occupational deferment, if such request is accompanied by written information presenting facts not considered when the registrant was classified, which, if true, would justify a change in the registrant’s classification; or (b) upon its own motion if such action is based upon facts not considered when the registrant was classified which, if true, would justify a change in the registrant’s classification; provided, in either event, the classification of a registrant shall not be reopened after the local board has mailed to such registrant an Order to Report for Induction (SSS Form No. 252) or an tor to Report for Civilian Work and Statement of Employer (SSS Form No. 153) unless the local board first specifically finds there has been a change in the registrant s status re-suiting from circumstances over which the registrant had no control. 32 C.F.R. § 1625.2 (emphasis added).
It was the view of both the Director and the Board that conscientious objection which matures after an order to report for induction has been received is not “a change in the registrant’s status resultant from circumstances over which the registrant had no control.” Appellant contends, however, that conscientious objection which ripens after receipt of the notice is such a change, and that the failure of the Board to determine the time at which his conscientious objection matured renders his classification unlawful.1
Appellant relies primarily upon United States v. Gearey, 368 F.2d 144 (2d Cir. 1966), cert. denied, 389 U.S. 959, 88 S.Ct. 335, 19 L.Ed.2d 368 (1967), rehearing denied, 389 U.S. 1010, 88 S.Ct. 561, 19 L.Ed.2d 611 (1967). In Gearey, the court observed that the statute upon which a claim of conscientious objection is based, 50 U.S.C.App. § 456(j), contains no limitation with regard to the time in which the claim must be asserted:
Nothing contained in this title * * * shall be construed to require that any person 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 * * *_
The court held that despite the absence of a time limit in the statute, the regulation relied upon by the government in the instant case could, for reasons of effecient administration, validly preclude consideration of a claim of conscientious objection by one whose claim crystallized prior to his notice of induction. The court further held, however, that the maturing of a claim of conscientious objection subsequent to an induction notice is a circumstance over which a registrant has no control, basing this holding both upon its view of the psychology of conscientious objection and upon the policy *56of the conscientious objection provisions of the Selective Service Act. The court suggested, however, that “the belatedness of a claim may be a factor in assessing its genuineness.” 368 F.2d at 149-150.
Other courts have agreed that conscientious objection which matures subsequent to an induction notice is the kind of change in status which permits a classification to be reopened under the regulation. Keene v. United States, 266 F.2d 378 (10th Cir. 1959); United States v. Brown, 129 F.Supp. 237 (D.N.J. 1955). Still others have held that the regulation can in no way limit the availability of a claim of conscientious objection. United States v. Underwood, 151 F.Supp. 874 (E.D.Pa.1955); United States v. Crawford, 119 F.Supp. 729 (N.D.Calif.1954). On the other hand, the approach of Gearey has, on occasion, been specifically rejected. Boyd v. United States, 269 F.2d 607 (9th Cir. 1959); United States v. Schoebel, 201 F.2d 31 (7th Cir. 1953).
I am persuaded by the opinion in United States v. Underwood, supra, that regulation 1625.2 cannot foreclose consideration of a claim of conscientious objection whenever made because of the clear statutory language in 50 U.S.C. App. § 456(j) that no person conscientiously opposed to participation in war shall be subject to combatant training for service. If the statute is literally construed, the regulation cannot stand unless it is interpreted not to apply to claims of conscientious objection.
At the very least, if the regulation is applied to such claims for purposes of administrative efficiency, following Gearey, we should not rule as a matter of law that the maturing of a belief of conscientious objection is a circumstance over which a registrant has control. Appellant’s file contains no such finding and the record is devoid of any psychological testimony establishing that proposition. Indeed, it would seem that conscientious objection which one can turn off and on at will is not that state of conscience and belief described in the statute. Whatever the validity of the psychological speculations of the various courts which have considered this matter,2 it is clear that the maturing of conscientious objection is not under the control of a registrant to the same extent and in like manner of, for example, enlisting in the Army Reserve which might provide a basis for deferment. See Ex parte Hannig, 106 F.Supp. 715 (N.D. Calif.S.D.1952). In any event, the regulations must be interpreted to implement the policy of the Selective Service Act, and the careful protection afforded claims of conscientious objection by the Act requires, at the very least, that the regulations not be construed so as to limit unduly the assertion of these claims.
I do not understand United States v. Taylor, 351 F.2d 228 (6th Cir. 1965), upon which the majority relies, to dictate a contrary result. In Taylor, the contention was not advanced that the registrant’s conscientious objection arose subsequent to receipt of his induction order.
The majority opinion recites that no other court of appeals decision supports Gearey. However, Keene v. United States, 266 F.2d 378 (10th Cir. 1959), which the majority opinion cites, in referring to a change of status due to a change of conscience occurring after the induction notice was mailed, states at p. 384: “If such change did occur, the board erroneously refused to reopen and review and, an appeal lies therefrom by force of statute, although no provision in the Regulations is made therefor.”
The majority opinion also states that the Board was justified in holding that appellant’s evidence did not disclose a change in circumstances beyond his control. The fact of the matter is the Board *57made no such finding and refused to consider the contention on the ground that the regulations precluded re-opening the classification except for a change of circumstances over which he had no control and that conscientious objection apperceived after an order to report for induction is not such a change in status.
I also respectfully disagree with the majority’s interpretation of appellant’s request for reclassification as a conscientious objector. The opinion does not consider his communication dated March 9, which makes clear his contention in the following language: “There are several reasons why I feel that you should find that there has been a change in my status resulting from circumstances of which I had no control. But without a hearing it would be impossible for you to know these facts.”
I find no basis for the comment in the majority opinion that appellant’s objection to serving in an ROTC unit while in college is inconsistent with the subsequent maturing of an awareness of conscientious objection. Reference to his completed Form 150 indicates the following: “ROTC on West Va. State Campus because I was required and forced to join; I objected then, and would not join now if in the same situation under any circumstances.” This position is consistent with an evolving awareness of religious scruples which culminated in a matured, ripened conviction of conscientious objection after receipt of the induction notice. At the very least, appellant should have been afforded a hearing to determine whether there had been a bona fide change of status because of a change of conscience over which he had no control and occurring after the notice to report was mailed. Alternatively, since there is no suggestion that the Draft Board disbelieved appellant and since its decision was based upon its supposed and erroneous inability to regard the maturing of his conscientious objection as a circumstance beyond his control, the indictment should be dismissed. I would reverse.
. On November 4, 3966, Local Board No. 2, at the suggestion of its Appeals Agent, granted appellant a hearing with regard to the matter of whether any change in circumstances had taken place which would permit reopening of his classification. Appellant argues here that this hearing, held after his refusal to be inducted, is irrelevant to the legality of his classification at the time of induction. I -would find it unnecessary to pass on this contention, since it is clear from the testimony of the Board’s clerk at appellant’s trial that the Board at the November 4 hearing did not consider the question of the time at which appellant’s conscientious objection had matured,
. Religious literature is replete with examples of sudden conversions precipitated by crisis, e. g. Saul of Tarsus (later St. Paul) on the Road to Damascus and by apparently irrelevant events, e. g. Gotama Buddha under the Bohdi Tree.