Lancaster v. United States, 4090.

• Decision Date: 19 February 1946
• Docket Number: No. 4090.,4090.
• Citation: 153 F.2d 718
• Parties: LANCASTER v. UNITED STATES.
• Court: U.S. Court of Appeals — First Circuit

153 F.2d 718 (1946)

LANCASTER v. UNITED STATES.

No. 4090.

Circuit Court of Appeals, First Circuit.

February 19, 1946.

Alfred A. Albert, of Boston, Mass., for appellant.

Thomas P. O'Connor, Asst. U. S. Atty., of Boston, Mass. (Edmund J. Brandon, U. S. Atty., of Boston, Mass., of counsel), for appellee.

Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges.

WOODBURY, Circuit Judge.

This is an appeal from a judgment sentencing the appellant to a term of imprisonment entered after a jury had found him guilty as charged in an indictment alleging violation of § 11 of the Selective Training and Service Act of 1940, 50 U.S.C.A.Appendix, § 311, in that, having been found acceptable, he refused to submit to induction into the Land or Naval Forces of the United States.

On October 16, 1940, the appellant registered with his local board in accordance with the above Act, and he filed his Selective Service Questionnaire with that board on December 4, following. In this document he indicated, among other things, that he was 28 years old and married, but without children, and that his wife and an invalid sister were partially dependent upon him for support. He did not indicate in Series X of the questionnaire that he had any conscientious objection to war. Being a married man with dependents he was, on December 16, 1940, appropriately classified in III A.

On October 5, 1943, deferment for the financial support of dependents being no longer authorized, the local board classified the appellant "Tent. 1," and on October 13, 1943, after a screening physical examination, classified him I A. Thereupon the appellant called at the office of his local board and obtained a Special Form for Conscientious Objector (D.S.S. Form 47) which he filled out claiming exemption from combatant military service but indicating willingness to serve in a non-combatant military capacity. He filed this form on October 21, 1943, with a letter containing the sentence: "I wish to appeal the decision of the Board, and make an appointment for a hearing of my reasons." The board did not give him a hearing but instead on October 25 minuted action "I A continued after Form 47," and then forwarded his file to the appropriate Appeal Board. On appeal his claim for classification as a conscientious objector, but one opposed only to combatant military service, was allowed, and on April 12, 1944, the local board classified him "I A.O. after appeal."¹ The appellant was duly notified of this action.

Then the appellant obtained employment in New York in defense work, and at his employer's request on August 22, 1944, he was placed in II A for six months. He was duly notified of this classification. In December, 1944, the appellant terminated his employment in New York — he says that he did so for reasons of conscience — and on February 1, 1945, his local board reclassified him in I-A-O. He admitted at the trial that he received immediate notice of this reclassification and he testified that he sent a postal card to his local board claiming an appeal therefrom. There was evidence, however, that no such card was ever received and in view of this evidence, the charge of the Court and the verdict of guilty, counsel for the appellant concedes, as he must, that for the purposes of this appeal it must be taken as a fact that no appeal was claimed within 10 days of this classification.

On March 20, 1945, the appellant submitted to a preinduction physical examination, which he passed, and on the day following he wrote a letter to his local board which gave it the first intimation that the appellant was dissatisfied with his classification of I-A-O. In this letter he said that he had always been a "complete C.O." but because of his dependents had been forced to compromise and claim conscientious objection only to combatant military service. Then he criticized the system of confining conscientious objectors opposed to any form of military service in camps. But he said that nevertheless his religious convictions were such that he wished "to be put in 4-E as a complete C.O." and then he added:

"This is, however, not what I desire most. As I see it, only as a civilian am I capable of being of constructive use to society. My work is teaching, and I regard that as constructive. Since the War Manpower Commission regards teaching as essential, it is not clear to me why I must be taken out of this work, and put into a C.O. camp to do `made' work or work that I'm certainly not as good at. One of the subjects I have been teaching is Mechanical Drawing, which war industry, for other reasons than I have, regards highly. I also coach athletics. These things I think are worthwhile, as does the W.M.C.

"It is not clear to me why the board, knowing that I will either teach and be useful, or go to a C.O. camp and be useless, need think twice.

"Perhaps I had better put it this way: that primarily I should like to appeal to be put in 2A (or whatever classification allows teachers to go on teaching) and if such has been erased or is not possible, I should, secondarily, like to appeal to be put in 4-E as a complete C.O."²

The local board received this letter on March 23, 1945, and a week later (March 31) it sent the appellant an order to report for induction on April 13 following. The appellant admitted that he received this order on the day after it was sent. Then on April 5 the local board minuted action "I-A-O continued," but sent the appellant no notice of its action. On April 7, the appellant wrote the local board a long letter asking for a stay of induction for further consideration of his case, with which he included a sworn summary statement of his position, and two or three days later he sought to have his induction stayed by the State Director of Selective Service. These efforts proving of no avail he reported for induction as ordered, was found acceptable for general military service, but refused to take the one step forward when his name was called which at that time constituted actual induction into the Army of the United States. Thereupon he was indicted, tried by jury, convicted and sentenced.

The appellant advances two general grounds for his appeal. First he says that the local board committed procedural errors which rendered the order given to him to report for induction void, and hence that under the doctrine of Chih Chung Tung v. United States, 1 Cir., 142 F.2d 919, he is entitled to have the judgment of sentence passed upon him reversed; and second, he says that the refusal of the court below to submit to the jury the question whether the local board, in retaining the appellant in Class I-A-O, acted arbitrarily, capriciously and contrary to law, constituted error entitling him to a new trial. We find no merit in either of the grounds advanced.

Referring to his letter of October 21, 1943, from which we quoted one sentence at the outset of this opinion, the appellant says that the failure of the local board to grant him an opportunity to appear personally to explain his reasons for wanting his I-A classification of October 13, 1943, changed to I-A-O, rendered the subsequent order to report for induction invalid. We concede that a registrant is given the right to make a personal appearance before his local board to state his reasons for wishing a given classification (Reg. Part 625.1 (a)), and for the purposes of this case at least we may concede that a local board's refusal to permit such an appearance would render a subsequent order to report for induction invalid if the registrant were not given the classification he desired. United States v. Laier, D.C., 52 F.Supp. 392. But with respect to the I-A classification of October 13, 1943, the registrant-appellant both requested a personal appearance and claimed a timely appeal, and on appeal he was given the classification (I-A-O) which at that time was the one he wanted. Thus he gained his end without the necessity of appearing personally before his local board. A personal appearance could have given him nothing more than he gained by his appeal and thus the error of the local board in refusing to hear the appellant personally was purely a technical one which could not have prejudiced any right secured to the appellant and does not justify setting the subsequent order to report for induction aside as invalid.

The appellant next contends that his letter of March 21, 1945, from which we quoted at some length above, constituted a request by him that his classification be reopened and considered anew,³ that the local board so treated that letter, reopened his classification, and then reclassified him, although in the class in which he had previously been placed (I-A-O), but contrary to the regulations, failed to send him notice of this renewed classification and thus deprived him of his right to appear before the board personally and of his right to appeal.

The part of the regulations quoted from above clearly indicate that upon receipt of a request to reopen a registrant's classification and consider it anew the local board must first determine whether the written evidence submitted is sufficient to warrant granting the request or whether it is not. If the local board determines that the evidence adduced does not warrant favorable action on a request to reopen, then the classification previously made stands unchanged and no new notice of classification is required. But if on the other hand the evidence submitted is considered sufficient to support a request to reopen and reopening is granted, the registrant must be classified "in the same manner as if he had never before been classified." Thus even though the new classification given after reopening is the same as the old one previously held, a registrant is entitled to notice thereof, an opportunity to appear personally with respect thereto and to appeal therefrom. From this it follows that the appellant's argument on this phase of the case must rest upon two prop...