Miller v. United States

• Decision Date: 29 December 1967
• Docket Number: No. 21417.,21417.
• Parties: David Bruce MILLER, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

388 F.2d 973 (1967)

David Bruce MILLER, Appellant, v. UNITED STATES of America, Appellee.

No. 21417.

United States Court of Appeals Ninth Circuit.

December 29, 1967.

J. B. Tietz (argued), Michael Hannon, Los Angeles, Cal., Ralph K. Helge, Pasadena, Cal., for appellant.

Michael J. Swofford, Asst. U. S. Atty., Eugene G. Cushing, U. S. Atty., Seattle, Wash., for appellee.

Before CHAMBERS, Chief Judge, JOHNSEN^* and KOELSCH, Circuit Judges.

JOHNSEN, Senior Circuit Judge.

Appellant was convicted on a jury-waived trial of refusing to submit to induction into the Armed Forces in violation of 50 U.S.C. App. § 462 and was sentenced to five years imprisonment.

The determinative question here is whether the manner in which the Local Selective Service Board handled and disposed of appellant's claim to be a conscientious objector and his request for a change of classification on this basis was legally invalid so as to make his refusal to be inducted not an unlawful act in the circumstances. Appellant's motion for acquittal upon this ground was denied by the District Court. We must reverse.

Appellant had been registered in the Selective Service System since May 28, 1962. His local board made reclassification of him as Class I-A (available for military service) on June 30, 1965. A preinduction physical examination was taken and passed by him on August 26, 1965. On September 21, 1965, he filed with the local board a letter claiming to have become a conscientious objector and requesting a copy of Special Form for Conscientious Objector (SSS Form No. 150) for execution by him.

The Selective Service Regulations require that this form be used by an alleged conscientious objector to "offer information in substantiation of his claim". 32 C.F.R. § 1621.11. The duty is imposed upon the local board to fill in the necessary return date in the prescription at the top of the form that "This Form Must be Returned on or before . . ." 10 days "after mailing or issue" of the form. The date of October 1, 1965, was so inserted by appellant's local board. Appellant returned the completed form to the local board on September 24, 1965. Before this occurred, however, the local board, on September 23, 1965, issued an order requiring him to report for induction on October 11, 1965.

Appellant then requested a postponement of his induction so that consideration could be given to his conscientious objector claim. The local board made inquiry of the State Director of Selective Service whether this "would be in order." The State Director thereupon exercised his power under the last proviso of 32 C.F.R. § 1632.2(a) to grant such a postponement and extended the date for appellant's induction to November 10, 1965. At the same time, he authorized the local board, under his implicit power in 32 C.F.R. § 1625.3(a), to deal with the situation as follows:

"It is considered desirable that the local board have an opportunity to consider all information received since the date of the most recent classification. * * *

"If upon review the local board members are of the opinion that the evidence supports a change of classification, authority is extended to reopen the same and consider anew. * * * Should the local board consider that the record does not justify deferment, it need not reopen classification. In this connection attention is invited to section 1625.4 SSR".

Section 1625.4 of the Selective Service Regulations (32 C.F.R.), referred to by the State Director, provides in its pertinent part as follows:

"When a registrant * * * files with the local board a written request to reopen and consider anew the registrant\'s classification and the local board is of the opinion that the information accompanying such request fails to present any facts in addition to those considered when the registrant was classified or, even if new facts are presented, the local board is of the opinion that such facts, if true, would not justify a change in such registrant\'s classification, it shall not re open the registrant\'s classification. * * *"

The effect of what the State Director did was to open up the situation to consideration by the local board of appellant's conscientious-objector claim and request for change of classification in the same manner and to the same extent as if the induction order had not been issued. Without such authorization, the local board apparently was subject to the prohibition in the last proviso of 32 C.F.R. § 1625.2 that "the classification of a registrant shall not be reopened after the local board has mailed to such registrant an Order to Report for Induction (SSS Form No. 252), unless the local board first specifically finds there has been a change in the registrant's status resulting from circumstances over which the registrant had no control".

With release made by the State Director from this prohibition of the proviso, the local board was free to reopen and consider anew the question of appellant's classification unless, within the restriction of § 1625.4, supra, the information submitted by him "fails to present any facts in addition to those considered when the registrant was classified" or, even if new facts were so presented, "such facts, if true, would not justify a change in such registrant's classification". A restatement of these conditions affirmatively is made in § 1625.2(1) of the regulations (32 C.F.R.) — the local board is entitled to reopen and consider classification anew if the request and the information accompanying it present "facts not considered when the registrant was classified, which, if true, would justify a change in the registrant's classification".

Admittedly the facts relating to appellant's claim to have become a conscientious objector were not presented or considered at the time he was given his I-A classification. The only other condition required by §§ 1625.2 and 1625.4 to be met therefore was that the information presented by appellant, "if true, would justify a change in the registrant's classification".

It cannot be held that the statements and information in appellant's letter and executed form No. 150, if true, would not be able to provide basis for a conscientious objector classification and so could not justify a consideration of the question of change in his classification. While the notice sent by the board to appellant of its refusal to reopen the situation stated "that the information submitted did not warrant reopening of your classification", what the board actually did, as the implications of its minutes reflect, was to engage in evaluative consideration and judgment that, regardless of the prima facie sufficiency of the information submitted, it was not, when probatively weighed against other elements in the situation, entitled to credence as fact.

The basis for the board's action was indicated in its official minutes as follows: "It was the opinion of the members that the registrant was seeking to avoid induction. They noted that he had applied for enlistment in a reserve program which was denied". The latter statement had reference to an attempt by appellant (a licensed civilian pilot), during August 1965, to enlist in an Air Force troop carrier group reserve, which turned him down because of his being married. The troop carrier reserve notified appellant's local selective service board by letter that "This individual is married and cannot be enlisted".

As above indicated, appellant's letter and form No. 150 presented, within the language of § 1625.2(1), "facts not considered when the registrant was classified, which, if true, would justify a change in the registrant's classification". There thus was involved what ...