Fleming v. United States

• Citation: 344 F.2d 912
• Decision Date: 30 April 1965
• Docket Number: No. 7742.,7742.
• Parties: John Harris FLEMING, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

344 F.2d 912 (1965)

John Harris FLEMING, Appellant, v. UNITED STATES of America, Appellee.

No. 7742.

United States Court of Appeals Tenth Circuit.

April 30, 1965.

J. B. Tietz, Los Angeles, Cal., for appellant.

David A. Kline, Asst. U. S. Atty. (B. Andrew Potter, U. S. Atty., on the brief), for appellee.

Before PICKETT, LEWIS and HILL, Circuit Judges.

HILL, Circuit Judge.

Appellant was indicted, tried by the court without a jury and convicted on the charge of wilfully refusing to submit to induction into the armed forces of the United States, in violation of 50 U.S.C.A. App. § 462. The appeal is from that judgment of conviction.

On July 8, 1957, Fleming registered under the provisions of the Universal Military Training and Service Act, as amended, 50 U.S.C.A. App. § 451 et seq. He was a member of the Methodist Church at that time and did not claim the status of a conscientious objector. Subsequently while attending college, Fleming became a member of a pacifist organization known as the "Fellowship of Reconciliation" and also changed his church preference from Methodist to Unitarian. In July, 1960, the draft board notified Fleming that he was classified 1-A and in a "Dependency Questionnaire" he informed the draft board of the above facts and requested to be classified as a conscientious objector.

On July 31, 1960, Fleming filled out and returned to his draft board Selective Service System Form 150, which is a questionnaire for those persons claiming classification as conscientious objectors. In this form, appellant claimed that by reason of religious training and beliefs, he was conscientiously opposed to participation in war in any form, including noncombatant training and service in the armed forces. He stated that he believed in a Supreme Being and, as the basis of his claim, described the nature of his belief in the language set forth in the margin.¹ Fleming explained that these beliefs had been acquired, in part, from his father who was a Methodist Minister and, more importantly, from his association with the Fellowship organization. In response to a question as to when force should be used, he stated: "Force should be used only as a final alternative and under fair circumstances. Self defense of a people would not involve war — but protection against a smaller group which could not be reconciled by intelligence and positive forces."

Thereafter, the draft board notified appellant that, in its opinion, he did not meet the requirements for a conscientious objector classification and continued to list him as 1-A. The Appeal Board affirmed the local draft board's classification.

Appellant took his physical examination and was found to be acceptable. On May 10, 1962, he was ordered to report for induction into the armed forces; but, on June 29, 1962, at the appellant's request, the Director of Selective Service appealed the classification of 1-A to a Presidential Appeal Board and his induction was postponed for 30 days. Appellant was classified 1-A by the Presidential Appeal Board and he was then ordered to appear for induction on September 13, 1962. He reported to the designated place on that date but refused to submit to induction and signed a written statement to that effect. This prosecution was then commenced under Section 12 of the Act, 50 U.S.C.A. App. § 462.

Section 6(j) of the Act, 50 U.S.C.A. App. § 456(j), is the source of the conscientious objector exemption. It provides, in part: "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. Religious training and belief in this connection means an individual's belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but does not include essentially political, sociological, or philosophical views or a merely personal moral code." Selective Service System Regulations provides: "In Class 1-O shall be placed every registrant who would have been classified in Class 1-A but for the fact that he has been found, by reason of religious training and belief, to be conscientiously opposed to participation in war in any form and to be conscientiously opposed to participation in both combatant and noncombatant training and service in the armed forces." (32 C.F.R. § 1622.14(a))

Of course, the exemptions from military service provided for in § 6 of the Act are matters of legislative grace and a selective service registrant claiming such an exemption has the burden of clearly establishing his right thereto. Dickinson v. United States, 346 U.S. 389, 74 S.Ct. 152, 98 L.Ed. 132; Bouziden v. United States, 10 Cir., 251 F.2d 728, cert. denied, 356 U.S. 927, 78 S.Ct. 716, 2 L.Ed.2d 759; Bradshaw v. United States, 10 Cir., 242 F.2d 180. It is not the province of the courts to weigh the evidence on which a local draft board classifies any particular registrant for the purpose of determining if he has met the burden of establishing the exemption. The judicial inquiry is limited to determining whether there is any factual basis in that evidence for the classification and, if so, such inquiry is at an end. It is only when there is no basis in fact for the draft board's classification that it can be overturned and the registrant be justified in refusing to obey the order of induction. Witmer v. United States, 348 U.S. 375, 75 S.Ct. 392, 99 L.Ed. 428; Dickinson v. United States, supra; Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567; Bradshaw v. United States, supra; Rempel v. United States, 10 Cir., 220 F.2d 949; Roberson v. United States, 10 Cir., 208 F.2d 166. But, where a registrant makes a prima facie showing that he is conscientiously opposed to participation in war in any form, his claim of exemption can be rejected only if there is in his registration file some showing of a countervailing nature which tends to justify a finding by the classification board that it is...