(dissenting):
In our limited review of determining whether there is a basis in fact for a local board’s classification, I do not think that we should overlook and not correct possible manifest injustices. In this case the appeal board assigned no reason for its action, other than the overall con-clusory one that defendant was not entitled to be classified as a conscientious objector. The record as I read it shows that the board may have acted on concededly erroneous, and to my mind highly prejudicial, data- — -not simply that which was disputed but essentially correct. I would, therefore, overturn the conviction and remit to the local board for a redetermination of defendant’s proper classification on a proper record, whether he should again be ordered to report, and if so, for what type of service, etc., on a correct factual basis.
The facts the majority sufficiently states. The hearing officer’s report, which was favorable to defendant’s claim that he was a conscientious objector, was not made available to defendant. Some of the erroneous statements had had their genesis in erroneous statements in the report of the F.B.I. investigation. The recommendation of the Department of Justice that defendant be denied status as a conscientious objector repeated the F.B.I.’s erroneous statements as to the date verbatim. Again, defendant was given no opportunity to expose the errors before the Department.
The principal errors were two-fold: First, it was said, in both documents, that defendant, the son of a Methodist minister, did not join the church of his father’s faith until 1965, until he was 23 years of age. The fact is that he joined in 1955, when he was 13 years old.1 *667Second, the present minister of the church at Rich Square, North Carolina, where defendant’s father had formerly-been pastor, was erroneously reported in the Department’s report and recommendation as having said that defendant “was not an obviously religious individual and took no active part in the church activities other than attending at religious worship.” In fact, the statement was made by a member of the congregation at the home of his parents in Cordo-va, North Carolina, and there was no evidence to show that the informant had the special and specific knowledge that might be expected to be possessed by a spiritual leader, particularly since defendant was attending college in Raleigh, North Carolina, when the inquiry was made.
Reference need be made only to the statute defining a conscientious objector to be one “who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form” (emphasis supplied), 50 U.S.C.A. App. § 456(j), to show the highly prejudicial effect of these misstatements. One may be a conscientious objector without adherence to the beliefs of an organized religion, United States v. See-ger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed. 2d 733 (1965), but how damning, for a registrant of defendant’s singular background, is the data that he unduly postponed embracing the faith of his father and that he is known to a spiritual leader as “not an obviously religious individual.”
The report of the Department of Justice, recommending that defendant not be classified as a conscientious objector, may be read repeatedly, but in vain, for any clue as to the extent to which the recommendation rests, in whole or in part, upon the misstatements. From their nature, I can hardly suppose that they were ignored. Cf., Sicurella v. United States, 348 U.S. 385, 75 S.Ct. 403, 99 L.Ed. 436 (1955).
It is true that defendant was given the opportunity to correct the errors when the Department’s report and recommendation were in the hands of the Appeal Board and that he availed himself of this opportunity by writing to that body. But by then uneorrectable prejudice had intervened. If it is assumed that the Appeal Board believed defendant, it could not determine how the Department’s recommendation was thereby affected, and that recommendation continued as evidence of the greatest weight that the defendant’s claim should be denied. United States v. Purvis, 403 F.2d 555, 562 (2 Cir.1968); United States v. Gearey, 368 F.2d 144, 148 (2 Cir.1966). See, MacMurray v. United States, 330 F.2d 928, 930-931 (9 Cir.1964). It seems to me that akin to United States v. Purvis, supra, 403 F.2d at 562, and the implicit concept of Gonzales v. United States, 364 U.S. 59, 64, 80 S.Ct. 1554, 4 L.Ed.2d 1569 (1960), we should not permit defendant’s conviction to stand when he had no effective opportunity to rebut the misstatements which went to the heart of his claim. I incline to the view that due process requires no less.
Because we cannot determine with any reasonable assurance whether defendant was denied his claim of conscientious objection on an improper basis, I see no necessity of deciding whether the local board might properly have denied the claim, or, stated otherwise, whether there was a basis in fact for its action. Sicurella v. United States, supra. But the majority dwells on this aspect of the case, concluding that there was a threefold inconsistency in the history of de*668fendant’s actions; and I am accordingly-constrained to discuss them. I conclude that the majority builds on slender reeds.
Quoting the local board’s paraphrase of defendant’s remarks entered into his records, the majority states that defendant said that he had opposed war “since he was old enough to realize what war is.” By legerdemain to which I do not subscribe, this statement is deemed inconsistent with his failure to claim conscientious objector status until two and one-half years after he filed his classification questionnaire. Absent proof of the age of defendant to which he referred as the time when he realized what war is — and there is none, the conclusion does not flow from the premise.
To my mind, defendant sufficiently explained his participation in ROTC unless he is deemed not credible. Significantly, the local board made no specific credibility finding. Defendant participated in ROTC because he was a scholarship student at a particular university, was interested in a specialized field offered at few institutions of higher learning and ROTC was compulsory at the one he selected. Other than minimal training, he played in the ROTC band. He explained his participation on the ground that he “knew of no way that the military establishment could benefit from my attending class, and so did not actively oppose 'the requirement.” Cf., United States v. Borisuk, 206 F.2d 338 (3 Cir.1953).
That only two of the eleven people who knew defendant well who were interviewed remembered his saying anything in opposition to participation in war does not demonstrate any inconsistency in defendant’s position. That a registrant is outspoken on the subject may be of significance, although there is the danger, if this is made the test, of generating self-serving statements rather than expressions of true conscience; that he is silent, or nearly silent, is of none. In a question so strictly a matter of conscience, infrequent expression, if not total silence, of one’s views is not so startling or unusual as to constitute negative evidence of the bona, fides of sincerity in the absence of proof of inconsistent expression of more conventional views. The point is that some people having acute and deep personal feelings speak freely and even proselytize, others do not; but the individual’s conduct, unless it is internally inconsistent, is no measure of the depth of his sincerity.
I respectfully dissent.
. The correct date was in the defendant’s Selective Service file transmitted to the Department of Justice. That the correct date was ignored is the only inference *667that can be drawn from the fact that the date was incorrectly statéd in the F.B.I. report and the Department's report and recommendation to the Appeal Board. This double repetition foreclosed any claim of typographical error. While no one knows wliat was in the hearing officer’s report because the report is apparently not available, the possibility that the F.B.I. and the Department of Justice both made identical errors but the hearing officer did not is too remote to be considered.