United States v. Stetter

• Decision Date: 23 July 1971
• Docket Number: No. 30036.,30036.
• Citation: 445 F.2d 472
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ray Nevin STETTER, Jr., Defendant Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

445 F.2d 472 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Ray Nevin STETTER, Jr., Defendant Appellant.

No. 30036.

United States Court of Appeals, Fifth Circuit.

June 14, 1971.

Rehearing Denied July 23, 1971.

Ralph K. Helge, Pasadena, Cal., for defendant-appellant.

Seagal V. Wheatley, U. S. Atty., Reese L. Harrison, Jr., Asst. U. S. Atty., W.D. Tex., San Antonio, Tex., for plaintiff-appellee.

Before GOLDBERG and DYER, Circuit Judges, and GROOMS, District Judge.

GOLDBERG, Circuit Judge:

Defendant Ray Nevin Stetter, Jr. appeals from a judgment of conviction by the District Court for failure to submit to induction into the armed forces in violation of 50 U.S.C.A. App. § 462 (a). Stetter's appeal is one among a legion of Selective Services cases seeking a chink in the decisional armor of the Selective Service System. Finding in the record no basis in fact to support the denial of Stetter's request for a conscientious objector exemption, we reverse the judgment of conviction.

I.

Stetter was born on February 10, 1945, and, upon reaching the age of eighteen, registered with Selective Service System Local Board 9 in San Antonio, Texas. Pursuant to applicable regulations, defendant, at the time of registration, answered and returned the basic classification questionnaire (SSS Form 100). Although Series VIII of the questionnaire provided a space for one claiming conscientious objector status to sign his name, defendant left the space blank. Thereafter, upon entering college, defendant was given a student deferment. Defendant remained in class II-S (student deferment), or was eligible for that classification, from December, 1963, until October, 1967, when his Local Board reclassified him I-A (available for induction). However, upon learning that defendant was in technical school, the Local Board reclassified Stetter in class II-A (occupational deferment) on November 21, 1967.

In February, 1968, defendant although satisfactorily pursuing his course of study, terminated his schooling many months short of graduation. On March 7, he wrote his Local Board informing it of his action. Stating that he had "a reason" for quitting school, defendant asked for an opportunity "to discuss it with * * * the Board personally." On March 14, the clerk of the Local Board replied to the defendant that his file would be reviewed by the Board at its next meeting and that defendant could file a request for a personal appearance 30 days after the Board reclassified him.

On March 19, the Local Board reclassified defendant I-A. Within the 30-day time limit, on April 11, defendant wrote requesting a personal appearance. In his letter he set forth the main "reason" why he wanted to talk to the Board personally. Stating that he had recently acquired strong religious beliefs which caused him to be conscientiously opposed to both combatant and noncombatant military service, defendant requested that he be reclassified I-O (conscientious objector).

On April 30, defendant received a Special Form for Conscientious Objectors (SSS Form 150), which he completed and returned to the Local Board. In the Form defendant set forth in some detail his reasons for requesting a conscientious objector exemption. Asked to describe the nature of his belief and whether or not it involved duties which he felt to be superior to those arising from any human relation, Stetter answered:

"I believe that God commands us to not kill a human being basing that belief on the teachings of the Bible specifically sic defined in Exodus 20 verse 13, Deuteronomy 5 verse 17, Matthew 5 verse 44. Jesus said: But I say unto you, Love your enemies, bless them that curse you, do good to them that hate you, and pray for them which despitefully use you, and persecute you;

Verse 39. But I say unto you, That ye resist not evil: but whosoever shall smite thee on thy right cheek, turn to him the other also. Luke 6 verse 27

But I say unto you which hear, Love your enemies, do good to them which hate you.

Christ said in John 14 verse 21, that the person that has his commandments and keeps them is the person that loves him (Christ)

Jesus definitely commands us not to kill, to love our enemies and to do good to them. God finds no necessity for war because he does exist and is our protector if we walk in his commandments. I am trying to live as a Christain sic is commanded to do and I cannot do it by having anything to do with military life. It is contrary to the way of life of a Christian. Certain duties are required of a Christian such as doing no work on the 7th Sabbath, being a witness of Christ, not swearing, smoking, excessive drinking, etc. I believe that humans are not to eat meats of those described in Leviticus 11 such as pork, shrimp, catfish, clams, etc.

Besides keeping the Sabbath a Christian is also command sic to observe the 7 other holy feast and fasts such as the Feast of Unleaven Bread, the Passover, etc.

God teaches respect for man\'s law but his law is supreme.

I am a loyal citizen of the United States and I love it very much, but I trully sic believe that by maintaining an Armed Force it is committing a sin.

If need be I am ready, willing, and able to serve my country in a civilian capacity doing good for mankind. I pray that you will believe me as I am deeply concerned with world affairs and the plight of mankind but I know there is another way."

Asked to explain "how, when, and from whom or from what source * * he received the training and acquired the belief which is the basis" of his conscientious objector claim, Stetter wrote:

"How! By studying the Bible (The Ten Commandments) Both Old & New Testiment sic (Matthew 5:44). I started to study the Bible about May of 1967 after I had proved to myself that God does exist and that the Bible was inspired by him. I study under the Guidance of booklets and Bible Correspondance sic Course of the Radio Church of God."

Asked to state under what circumstances, if any, he believed the use of force was justified, defendant responded:

"The individual is commanded never to use force. The use of force is only given to the government of man in inforcing sic the laws of God such as Capital Punishment and is authorized in Exodus 21. This use of force is only given to man to rule is sic own nation and not to us sic in defence of or in aggression with nations. Nations have no authority over other nations."

The questionnaire then asked defendant to "describe the actions and behavior in * * * his life which in * * his opinion most conspicuously demonstrate the consistency and depth of * * his religious convictions":

"Because of my relatively recent acquisition of the basic Laws in the Bible and way God expects a Christian to live I am not sure how I can demonstrate to you of any consistency and dept sic of my religious conviction. The only actions and or behavior I can think of is that I have started to observe the 7th day Sabbath, I don\'t eat pork, etc. Through my entire Life I have obeyed the Laws of our Land and have respect for them."

Stetter then completed the questionnaire by listing four references who could attest to the sincerity of his convictions against participation in war.

In a supplemental letter to the Local Board, defendant further elucidated his claim:

"For the past ten months or so, I have been studying the Bible in a diligent manner in order to answer the question to myself as to whether God exists or not. I am convinced he does and I have proved to myself also that the Old and New Testiments sic of the Bible are his inspired word. About two and a half or three months ago, I made a decision that I must live by his laws and change my way of life and thinking in order to obtain the grace that Jesus promised to all of mankind. I firmly believe that God the father and God the son exist and are living still. God clearly defined what sin was and that one of the greatest sins is to kill. In the New Testiment sic Jesus Christ magnified that commandment by instructing us to love our enemies and to do good to them which hate us (Luke 6 verse 27). When Christ was being handled by the crowd that came with Judas to crucify him, one of his disciples took a sword and cut off the ear of one of the men in the crowd. Christ said in Matthew 26 verse 52 `Put up again thy sword into his place: for all they that take the sword shall perish with the sword.\' I could continue quoting the scriptures and taking out all referances sic to killing and war but that would be preaching rather than stating the basis for my belief so I will stop here on this subject.

"I feel I must point out some other reasons as to why I know I must not served in the armed forces. I definitely believe that the 7th day Sabbath and the seven anual sic holydays must be observed by not doing any servile work. These holydays are the same as the people of ancient Israel were commanded to observed sic, the Passover, the Feast of the Unleaven Bread, the Feast of the Tabernacles, etc. Another area that leads to possible conflict is the fact that I cannot eat unclean foods such as pork, shrimp, catfish, etc. I am afraid that if I was in the service I would be forced to disobey orders at times because of my beliefs when God\'s laws and man\'s laws conflict than sic I must go God\'s way.

"I definitely believe in God\'s laws and am determined to change myself through Jesus Christ. I hope that you will believe me. I am not a draftdogger sic, I believe in law, and, I love my country, and, I hope I will not have to disobey the law but serve my country. I want to state that I will service sic my country in a civilian capacity if required of me. I simply believe that I would be doing a wrong if I served in the armed services."

After receiving this information from defendant, the Local Board granted him a 15 minute personal appearance on May 16, 1968. Defendant met with the Board on that date but was denied the opportunity to have his brother testify in his behalf. No...