Gee v. United States

• Decision Date: 13 November 1970
• Docket Number: Civ. A. No. 70-H-682.
• Citation: 319 F. Supp. 581
• Parties: Dick Andrew GEE v. UNITED STATES of America.
• Court: U.S. District Court — Southern District of Texas

319 F. Supp. 581

Dick Andrew GEE v. UNITED STATES of America.

Civ. A. No. 70-H-682.

United States District Court, S. D. Texas, Houston Division.

November 13, 1970.

David Berg, Houston, Tex., for petitioner.

James R. Gough, Asst. U. S. Atty., Houston, Tex., for respondent.

Memorandum and Order:

SINGLETON, District Judge.

Dick Andrew Gee, petitioner herein, at this moment sits in the federal penitentiary because he was convicted for failing to submit to induction into the armed forces. 50 U.S.C. App. § 462(a). Soon after petitioner pled guilty to, and was sentenced for, this offense, the Supreme Court rendered its decision in Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970). In the belief that Welsh, supra, would rescue him from the confines of jail, petitioner has brought before the Court a motion to vacate sentence under 28 U.S.C. § 2255. Specifically, petitioner contends that in light of Welsh, supra, his local draft board improperly failed to accord him a conscientious objector selective service classification.

Since the time of the Civil War there has been a policy, national in scope, in favor of exempting from military service those whose consciences will not permit them to bear arms for their country. The statutory embodiment of this policy is found in § 6(j) of the Selective Service Act of 1967 (50 U.S.C. App. § 456 (j)):

"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. As used in this subsection, the term `religious training and belief' does not include essentially political, sociological, or philosophical views, or a merely personal moral code." (Emphasis added.)

In United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965), the Supreme Court construed § 6(j) and announced the test for determining whether a conscientious objector's beliefs are religious. That test is whether that person has "a sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption * * *." Id. at 176, 85 S.Ct. at 859. The Court made it clear that "these sincere and meaningful beliefs * * * need not be confined in either source or content to traditional or parochial concepts of religion." Welsh v. United States, supra, 398 U.S. at 339, 90 S.Ct. at 1796 at 26 L.Ed.2d 318. In Welsh the Court reaffirmed what it held in Seeger by concluding that Section 6(j) "exempts from military service all those whose consciences, spurred by deeply held moral, ethical, or religious beliefs, would give them no rest or peace if they allowed themselves to become a part of an instrument of war." 398 U.S. at 344, 90 S.Ct. at 1798, 26 L.Ed.2d at p. 321.

The implementation of these principles is left primarily to local draft boards and not the courts. In § 10(b) (3) of the Selective Service Act of 1967 (50 U.S.C. App. § 460(b) (3)), judicial review of a registrant's classification is strictly limited, except as a defense to a criminal prosecution under Section 12 (50 U.S.C. App. § 462) after the registrant has responded either affirmatively or negatively to an order to report for induction to those cases where there is no basis in fact for the classification assigned to the registrant. In order to determine, therefore, whether the denial to petitioner of conscientious objector status has any basis in fact, it is necessary to examine the evidence before petitioner's local board which led it to assign him the selective service classification which it did.

The record reflects that petitioner was born on October 12, 1947, and registered with his draft board, as he was required by law to do, shortly after his eighteenth birthday. At that time, he made no claim to be a conscientious objector, but soon afterward was exempted as a full-time student enrolled in college. It was not until after petitioner had been ordered to report for a physical examination, after which he was found to be fit for duty in the armed service and after he was ordered to report for induction, four years after he initially registered, that he wrote his local board, on November 25, 1969, and requested classification as a conscientious objector. On November 26, 1969, petitioner returned to his draft board completed SS Form 150. Petitioner was unable to sign the statement which, as printed on the form, stated "I am, by reason of my religious training and belief, conscientiously opposed to participation in war in any form * * *" and actually did so only after striking the words "religious training and." When asked to describe the nature of his belief and to say why he considered it to be based on religious training and belief, petitioner replied, "This claim is not based on a religious belief, but on a personal moral conviction." He made a similar response to another question asking him to elaborate on the source of his religious life. To yet another question asking him to what extent his religious training and beliefs would preclude him from serving in a noncombatant capacity, petitioner responded that his "personal moral conviction" restricted him from participating in any way. Below that, petitioner named several people to whom he had expressed the sentiments expressed on the form. He left blank a space giving him the opportunity to name references who could provide the local board information regarding his religious training and belief. Subsequent to the local board's receipt of this form, petitioner appeared for a personal interview. Though the record is not abundantly clear as to what was said at that time, petitioner did say that he had not requested SS Form 150 until that late date because he did not believe he would be called for service. The local board denied petitioner's request for conscientious objector status and reordered him to report for induction, which he did, but thereafter failed to take the symbolic step forward.

From this record, it must be concluded that the denial to petitioner of a conscientious objector classification was without foundation in fact. A close scrutiny of Welsh, supra, reveals a striking similarity between the circumstances under which Welsh was denied classification as a conscientious objector and those by which petitioner was denied the same classification.

As with Welsh, petitioner did not indicate his pacifist views to his draft board when he registered for the draft. As with Welsh, petitioner's objection to war matured only in subsequent years. As Welsh did, petitioner struck the words "religious training and" before signing the statement which appears on the form as "I am by reason of my religious training and belief, conscientiously opposed to participation in war in any form." As Welsh did, petitioner believed, and still does believe, that killing in war is wrong, unethical, and immoral, and that his conscience for-bids him from taking part in such an evil practice.¹ Given these resemblances to Welsh, supra, plus the fact that the record is devoid of any basis at all for the draft board's denial of conscientious objector classification, it is held that petitioner's conviction, founded as it is on an improper selective service classification, must be set aside.

The government contends that judicial review by way of Section 2255 of petitioner's classification is precluded because petitioner pled guilty to the charge of failing to submit for induction. McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970); Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). These cases are inapposite. Here, Gee pled guilty to charges which were based upon an erroneous selective service classification approximately two weeks before the Supreme Court's decision in Welsh, supra. Although there are no...