United States v. George Llewellyn Jones, III

ADAMS, Circuit Judge (dissenting).

Although this is admittedly a close case, I am of the belief that the information contained in the SSS Form 150 submitted by Jones to his local board, when considered with his supplemental letter, was sufficient to constitute a prima facie claim of conscientious objection under 50 U.S.C. App. § 456 (j). Accordingly, I am constrained to dissent.

In Scott v. Commanding Officer, 431 F.2d 1132 (3rd Cir. 1970), this Court held that when a local board is presented with a prima facie case of conscientious objection, it must re-open the registrant’s classification unless it gives its reasons for not doing so. The rationale for this rule is manifest. The federal courts have a very narrow scope of review of local board actions — in general, being limited to a determination whether there exists a basis in fact for the refusal of the local board to classify the registrant as he requested. See 50 U.S. C. App. § 460(b) (3); Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567 (1946). Were a board not required to state its reasons when faced with prima facie papers for classification to a different category, a court would be impelled to embark on a fishing expedition to ascertain the basis, thereby reducing even further its already limited scope of effective review. See United States v. Neamand, 452 F.2d 25, at 30 (3rd Cir., No. 71-1252, Nov. 16, 1971); United States v. Stephens, 445 F.2d 192 (3rd Cir. 1971); United States v. Crownfield, 439 F.2d 839 (3rd Cir. 1971).

Scott has been interpreted as requiring a statement of reasons by the draft board to support a denial of a conscientious objector claim when a prima *631facie case is submitted. In the absence of such a statement, a subsequent induction order is not valid. United States v. Stephens, supra, United States v. Crownfield, supra, United States v. Speicher, 439 F.2d 104 (3rd Cir. 1971). It is significant in this regard that the Congress, in the Draft Extension Act, Pub.L. 92-129 (1971), recognized the importance of the local board’s issuing a statement of reasons when it denies a claim, by requiring it, when requested by the registrant, to state reasons. Because Scott is retroactive under United States v. Speicher, supra, its holding must be applied to this direct appeal from a criminal conviction even though all the proceedings before the local board had concluded prior to the date of the Scott decision.

It is clear that an indictment for violation of 50 U.S.C. App. § 462 is based on the registrant’s response to local board action — the order to report for induction — occurring prior to trial. When the defendant challenges the validity of the indictment, it follows that if the local board action were invalid, the indictment should be dismissed. If a trial is nonetheless held the evidence adduced there cannot cure the defect. As was stated in United States v. Brown, 436 F.2d 1317, 1319 (3rd Cir. 1971) (en banc):

“[W]e do not believe that appellant was required to prove a sufficient case for IV-D classification during his criminal prosecution. The determination whether appellant was entitled to a ministerial exemption was to be made initially by the Selective Service System acting in compliance with its own regulations — not by the district court in a criminal prosecution.”

See United States v. Stephens, supra, 445 F.2d at 197; United States v. Speicher, supra, at 439 F.2d 108-109. We therefore should be limited in our consideration of the validity of Jones’ indictment and the underlying local board order to the contents of Jones’ Selective Service file — the relevant portions being his Form 150 and supplemental letter.1

Section 6(j) of the Selective Service Act of 1967, 50 U.S.C. App. § 456(j), exempts from combatant military training and service any person “who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form.” An individual desiring classification as a C.O. must meet three basic tests: (1) He must be opposed to secular war in any form, Gillette v. United States, 401 U.S. 437, 91 S.Ct. 828, 28 L.Ed.2d 168 (1971); Sicurella v. United States, 348 U.S. 385, 75 S.Ct. 403, 99 L.Ed. 436 (1955); (2) His opposition to war must be founded on traditional religious beliefs or on a personally developed belief which occupies the same place in his life as the beliefs of a member of a recognized religion, Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970); and (3) He must be sincere, Witmer v. United States, 348 U.S. 375, 75 S.Ct. 392, 99 L.Ed. 428 (1955).1a Therefore, when a registrant presents evidence to the local board which, if true and uncontradieted, would satisfy the specified criteria, he has established a prima facie case of conscientious objection. See Mulloy v. United States, 398 U.S. 410, 416-417, 90 S.Ct. 1766, 26 L.Ed.2d 362 (1970); United States v. Neamand, supra, 452 F.2d at 28, n. 3; United States v. Stephens, supra, 445 F.2d at 197-98 (Aldisert, J., concurring); United States v. Burlich, 257 F.Supp. 906, 911 (S.D.N.Y.1966). with this proposition, the majority and I do not disagree. Rather, we differ on the import of the statements contained in the papers submitted by Jones to his local board.

*632One additional point requires discussion prior to undertaking an analysis of the application for conscientious objector status. Jones, although a college graduate, is not a lawyer. Neither the local board nor a federal court should expect him to be fully versed in the law or the use of its special language. Therefore, an inarticulate expression of a view necessary to establish a prima facie case should not be sufficient in itself to defeat an otherwise valid claim.

“Few would quarrel, we think, with the proposition that in no field of human endeavor has the tool of language proved so inadequate in the communication of ideas as it has in dealing with the fundamental questions of man’s predicament in life, in death or in final judgment and retribution.”2

The strict standards applied to pleadings in an adversary action have no place when either the local board or a court considers documents submitted by a non-lawyer in what is essentially a non-adversary proceeding.3 In fact, this Court has held that in evaluating such written documents submitted by a registrant to his local board, we “should [consider] not only the materials themselves, but also the legitimate connective inferences which could fairly and plainly [be] drawn therefrom.” United States v. Stephens, supra, 445 F.2d at 195.

Applying the above rule of construction, Jones did meet his burden of establishing a prima facie case. Notwithstanding the portion of the trial transcript referred to by the majority 4, Jones’ Form 150 met the first of the three tests specified above by making reasonably clear that he is opposed to war in any form.4a In response to Question 1 of Series II of the Form 150, Jones states, “The use of force is capable of subduing but never of gaining, and is destructive in every form . . . The immorality of war and my belief in its inadequacies are cause enough to make it impossible for me to participate in or reinforce any such actions.” He additionally wrote, when answering Question 2, “These beliefs do not allow me to participate in any manner in the Armed Forces of this nation or any other.” Although Jones never parrots the phrase, the obvious inference to be drawn from these words is that Jones is opposed to “participation in war in any form.” Although the majority finds that Jones was opposed only to the war in Vietnam, after a careful reading of his Form 150 and supplemental letter, I can find no such selective opposition. This factual dispute serves to highlight the difficulty encountered when we attempt to decide a draft case when the local board has not stated its reasons for denying a claim for conscientious objector status. As a court of appeals, we should not be required to act as finders of fact. Rather, it is our duty to apply the law to a given set of facts, a task which we cannot properly accomplish without a statement of reasons.

That Jones' opposition to war was based on religious training and belief within the meaning of Welsh v. United *633States, supra and thus met the second criterion is equally apparent. Jones’ parents and their families are “highly religious people.” From his childhood until age eighteen, he regularly attended chui’ch. When he went away to college, he began to develop his own religious views. Jones stated that he recognized “some form of supreme being [which], as of yet has not been clearly defined.” His opposition to war in any form appears to be based on his religion, and it can be readily inferred from his statement that his religion occupies the place in his life necessary to satisfy the test of Welsh.

Doubt as to Jones’ sincerity — the third prong — seems to be the true basis, however, for the majority’s holding that he failed to make out a prima facie case. Jones had been a member of Air Force ROTC during his freshman year at college — five years prior to the filing of his Form 150 — but he resigned when he “found the program incompatible with [his] general way of life.” He added that, “This represented my first experience with the military philosophies. My reasons for not continuing with the program were not the same as those which I presently hold in opposition to war, for at the time I really had had no cause or opportunity to develop such a belief.” Jones’ views had not begun to crystallize when he was a freshman, and this fact should not operate to east doubt on his sincerity. See Scott v. Commanding Officer, supra, 431 F.2d at 1136.

More troublesome, however, is the effect of Jones’ application to Naval Officer Candidate School [O.C.S.] in February, 1968. He stated in his Foimi 150 that “these beliefs have been established for a few years now.” Reading this phrase out of context,5 as I respectfully submit the majority does, it might be tempting to conclude that Jones’ views had crystallized prior to his applying for a commission in the Navy. In addition, reliance is placed on Jones’ statement that as late as May, 1968 — when his application to O.C.S. was rejected — he “probably would have refused [the commission] anyway.” Thus, reasons the majority, although Jones claimed to be a conscientious objector to February, 1968, he could not have been sincere because after his views crystallized he applied for a commission in the Armed Forces.

The Supreme Court in Witmer v. United States, supra, dealt with a sincerity question similar to that posed by the majority here. The facts of Witmer, however, are clearly distinguishable from this ease. In Witmer, the registrant stated that he desired classification as an agricultural worker based on an assertion that, “ T will increase production year after year, and contribute a satisfactory amount for the war effort and civilian use.’ ” Id. 348 U.S. 378, 75 S.Ct. 394. He also stated, in the same questionnaire, that he was a conscientious objector. At an interview regarding his C.O. claim, Witmer stated that “ ‘the boy who makes the snow balls is just as responsible as the boy who throws them.’ ” Id. 380, 75 S.Ct. 395. Thus, Witmer’s file contained an inescapable contradiction — that one who was willing to stay home to help the war also objected to war in any form. This inconsistency “cast considerable doubt on the sincerity of [his] claim.” Id. 383, 75 S.Ct. 396, and his conviction was therefore affirmed.

Had Jones stated that for several years prior to the filing of his C.O. application, he was completely opposed to war in any foi'm, we might have a case analogous to Witmer. Instead, Jones wrote that “certain of his beliefs” had been held for a number of years. A careful reading of Jones’ Form 150 shows that the belief to which he refers is “that the use of force when dealing with others is wrong.” This belief is not required in order to qualify as a conscientious objector. Thus, Jones did not state that he had been a C.O. at the time he applied to O.C.S. *634Instead, Jones stated that the application to O.C.S. was a test of his developing C.O. attitude. During his senior year at college, he “held only a ‘gut reaction’ against participation in war.” By the time Jones presented his Form 150 to the local board, he asserted, “[T]he beliefs I hold at present are now my true beliefs. . . . ” (Emphasis added.)

The conclusion which must be drawn from these statements is that Jones’ C.O. views were beginning to crystallize during his years at college and finally did so when he applied for the 1-0 classification. Although his application to O.C.S. might cast some doubt on his sincerity, it is nonetheless also consistent with the view that he had not yet crystallized his C.O. feeling and therefore does not amount to the clear contradiction found in Witmer. Absent such a contradiction, there is nothing in the papers which Jones filed to demonstrate that he was other than sincere.6

Because Jones, in his Form 150 and supplemental letter, has carried his burden of establishing a prima facie case, and the local board did not state its reasons for denying him 1-0 classification, I would reverse Jones’ conviction and dismiss the indictment. United States v. Neamand, supra; United States v. Stephens, supra; United States v. Speicher, supra; United States v. Crown-field, supra; Scott v. Commanding Officer, supra. Such a result neither would declare Jones to be a C.O. nor would it relieve him of his obligation to his country. Rather Jones would still be in a I-A status with an application for a 1-0 classification pending. His local board would then have the responsibility of interviewing him again to determine the validity of his C.O. claim. If it found him to be entitled to 1-0 status, Jones would be required to perform two years of alternate service. If the local Board denied his claim, it would state its reasons 7 and reprocess Jones for induction.

. We are so limited because the record gives us no indication of what transpired at Jones’ personal appearance. Of course, one reason for this lack of information is the Board’s failure to state its reasons for denying the C.O. claim.

. Clay v. United States, 403 U.S. 698, 700, 91 S.Ct. 2068, 29 L.Ed.2d 810 (1971) sets forth these guidelines.

. United States v. Seeger, 380 U.S. 163, 174, 85 S.Ct. 850, 858, 13 L.Ed.2d 733 (1905).

. Selective Service Regulations do not permit counsel to be present during the registrant’s personal appearance, 32 C.F.R. § 1024.1(b). Bee United States v. Sturgis, 342 F.2d 328, 332 (3rd Cir. 1905).

. Even though, in a colloquy with the District Court, Jones lawyer stated that he considered Jones to be a selective conscientious objector, Gillette v. United States, 401 U.S. 437, 91 S.Ct. 828, 28 L.Ed.2d 108 (1971), the holding of United States v. Brown, supra, makes any such statement at trial irrelevant for the purposes of this decision.

. While there might have been some information in the file on which the board could have relied to deny the claim, when faced with an otherwise prima facie case, the board is required to state its reasons for the denial. See text supra at 1-2. Logic would indicate that a statement of opposition to aggressive war is not inconsistent with opposition to war in any form — a view made clear by the remainder of Jones’ Form 150.

. After reading Jones’ entire selective service file, it becomes clear that he did not intend to convey the meaning which the majority draws from this statement. See discussion infra, text at n. 6.

. New Selective Service Regulations enacted pursuant to § 22 of the Draft Extension Act, Pub.L. 92-129 (1971), require a statement of reasons from the local board when its decision is adverse to the claim of the registrant. 32 C.F.R. § 1625.4.

. While the local board might have had good reason for denying his application beyond Jones’ views as expressed on paper, their failure to state reasons precludes us from speculating as to possible bases for the denial.