Musser v. United States Waldron v. United States 8212 1733, 72 8212 6748

Decision Date12 November 1973
Docket NumberNos. 72,s. 72
Citation38 L.Ed.2d 190,94 S.Ct. 196,414 U.S. 31
PartiesChristopher Joseph MUSSER v. UNITED STATES. Robert Haines WALDRON v. UNITED STATES. —1733, 72—6748
CourtU.S. Supreme Court

See —- U.S. —-, 94 S.Ct. 884, 901.

PER CURIAM.

The petitioners in these cases were each convicted for refusing to submit to induction into the Armed Forces, 50 U.S.C. App. § 462(a), and each seeks review of the judgment affirming his conviction upon the sole ground that the order to report for induction was invalid for failure of the local board to reopen his classification pursuant to a request for a conscientious objector classification, see Mulloy v. United States, 398 U.S. 410, 418, 90 S.Ct. 1766, 1772, 26 L.Ed.2d 362 (1970).

In No. 72—1733, the petitioner Musser received an order to report for induction, issued by his local board on September 15, 1970. On September 21, 1970, he re- quested and received Selective Service System Form 150, a special form for those seeking conscientious objector classification. Musser filled out the form, indicating in response to the questions posed that he was conscientiously opposed to participation in war in any form by reason of his religious training and belief, and claiming exemption from combatant and noncombatant training and service pursuant to 50 U.S.C. App. § 456(j). On September 29, 1970, the local board reviewed Musser's application. The minutes of that meeting indicate that in the opinion of the members of the board, his claim 'lack(ed) sincerity' and that he '(had to) report for induction.' On the same day he was sent a form letter stating that his application had been received and reviewed, that he was 'hereby advised (that the board) did not specifically find there has been a change in status resulting from circumstances over which you had no control,' and that pursuant to Selective Service Regulation 1625.2, 32 CFR § 1625.2,1 his classification would therefore not be reopened.2 Musser was subsequently advised by the board of his continuing duty to report and was in fact ordered to report for induction on January 19, 1971. On that date he appeared at the induction center but refused to submit to induction. For this refusal he was convicted in a jurywaived trial and sentenced to two years' imprisonment. The Court of Appeals affirmed, 478 F.2d 1068 (CA9 1973).

In No. 72—6748, the petitioner Waldron was, on December 30, 1968, mailed an order to report for induction on February 5, 1969. Shortly thereafter, he requested, received, and completed an SSS Form 150, indicating his opposition to was in any form and requesting a conscientious objector classification. On January 24, 1969, the board notified him that it had reviewed his application but 'found no grounds for reopening your classification.' Subsequently, on January 28, 1969, the State Director of Selective Service reviewed Waldron's file and recommended to the local board that his induction be postponed pursuant to Regulation 1632.2, 32 CFR § 1632.2, and that he be given a 'courtesy interview' pursuant to then-current Local Board Memorandum 41. Waldron was thereupon sent a letter indicating that his induction was being postponed until February 19, 1969, and that he would be granted an interview on February 5, 1969. On Feburary 6, following the interview, he was notified that the board found 'no grounds for reopening your classification after you(r) being interviewed' and that he had to report for induction on February 19. He arranged further to postpone the date of his induction until March 27, 1969, in order to be able to report for induction in another city where he was then living, and on that date he refused to submit to induction. He was thereafter tried and convicted of refusing to submit to a valid order to report for induction, and the Court of Appeals affirmed, 474 F.2d 90 (CA7 1973).

In Ehlert v. United States, 402 U.S. 99, 91 S.Ct. 1319, 28 L.Ed.2d 625 (1971), this Court reviewed a claim that a local Selective Service board, operating under laws and regulations substantially the same as those involved here, must reopen a registrant's classification following a claim for conscientious objector status made after issuance of an order to report for induction and based on an assertion that the registrant's conscientious objection to war in any form had 'crystallized' after the issuance of the order to report. The Court reasoned that '(a) regulation explicitly providing that no conscientious objector claim could be considered by a local board unless filed before the mailing of an induction notice would . . . be perfectly valid' as a reasonable timeliness rule to insure that all possible claims be presented to and reviewed by the local board prior to its determination that a given registrant is subject to induction. Id., at 101—102, 91 S.Ct., at 1321—1322. The Court also concluded, however, that 'those whose views are late in crystallizing' cannot 'be deprived of a full and fair opportunity to present the merits of their conscientious objector claims for consideration under the same substantive criteria' that govern claims based on views crystallizing prior to issuance of induction notices. Id., at 103, 91 S.Ct., at 1323. Such a full and fair opportunity, the Court found, existed in in-service Armed Services procedures for hearing and evaluating conscientious objector claims. Under such a system, the 'intolerable' situation of a 'no man's land' in which post-notice claims for CO classification were not heard by the local boards because of their timeliness rules, and were not heard by the Army after in- duction because of a finding that an inductee had waived his right to claim such classification, was avoided: claims crystallizing prior to issuance of an order to report must be directed to and are to be reviewed by local boards, while claims crystallizing thereafter are to be reviewed only by the Armed Forces after induction. Id., at 104 n. 7, 91 S.Ct., at 1323.

Selective Service regulations, however, did not unambiguously create such a system, but left open the possibility that a classification be reopened after issuance of a notice to report if the local board 'specifically finds there has been a change in the registrant's status resulting from circumstances over which the registrant had no control.' 32 CFR § 1625.2. Prior to Ehlert, the courts of appeals had divided on the question of whether late crystallization of conscientious objector views qualified as such a change. 402 U.S., at 101 n. 3, 91 S.Ct., at 1321. In Ehlert, we avoided the 'theological' argument of whether, as a matter of law, a claim of late-crystallizing conscientious objection was a change over which 'the registrant has no control.' Rather, we held that in view of consistent administrative interpretation by the Government that changes envisaged by Regulation 1625.2 were limited to 'objectively identifiable' and 'extraneous' circumstances,3 such an interpretation of the regulation would be adopted. Id., at 105, 91 S.Ct., at 1323.

Finally, we considered in Ehlert whether 'the conditions for the validity of such a rule . . . are met in practice.' After reviewing Army regulations, Department of Defense Directives, and a letter from the General Counsel of the Department of the Army, we de- termined that in inductee claiming late-crystallizing conscientious objector status would receive a full and fair opportunity to have his claim heard by Armed Forces personnel. Id., at 106—107, 91 S.Ct., at 1323—1324.

The petitioners in these cases make overlapping arguments in attempting to avoid the Ehlert precedent. First, relying on decisions and opinions of the First and Third Circuits,4 they contend that the refusals of the local boards to reopen their classifications could be read as a 'denial' of those claims and thus a bar to in-service review. In particular, they point to 3.b(2) of Army Regulation 635—20, not cited or discussed in the Ehlert opinion, which states that inservice claims for conscientious objector treatment will not be favorably considered when '(b)ased solely on conscientious objection claimed and denied by the Selective Service System prior to induction.' (Emphasis added.) In the language of the First Circuit, 'if the Army could have read the draft board's reasonless refusal to reopen as a 'denial' then (a registrant) might well have been placed in a mutual buck-passing situation where neither the draft board nor the Army would consider his claim on the merits.' United States v. Alioto, 469 F.2d 722, 727 (1972). Ehlert, the petitioners claim, did not deal with this problem because the board in that case had explicitly stated that it was not denying Ehlert's claim on the merits, but was refusing to reach those merits since no showing had been made of a "change in the registrant's status resulting from circumstances over which the registrant had no control." 402 U.S., at 100, 91 S.Ct. at 1321. Thus, they argue, the ambiguity of the board's refusal to reopen, taken together with current Army regulations, raises the specter of the kind of no man's land specifically found intolerable in Ehlert.

The petitioners misconstrue the reasoning and effect of our holding in Ehlert. In adopting the Government's interpretation of Regulation 1625.2 that a late crystallization was not a circumstance over which a registrant 'had no control,' the Court did not hold merely that a local board would be permitted to refuse reopening of a classification in such a situation,5 but that it was without power to reopen under such circumstances. The mandatory language of Regulation 1625.2, that classification 'shall not be reopened' unless the proviso is met, requires no less. If a local board is not empowered to reopen the classification, it follows that it is similarly without power to make any ruling on the merits of a registrant's claims, since such a ruling on the merits of a claim can be made only by a reopening, with concomitant...

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