Turner v. United States
| Decision Date | 28 April 1969 |
| Docket Number | No. 25906.,25906. |
| Citation | 410 F.2d 837 |
| Parties | Bill Rapp TURNER, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Samuel S. Jacobson, Jacksonville, Fla., for appellant.
Gary B. Tullis, Asst. U. S. Atty., Edward F. Boardman, U. S. Atty., Middle District of Florida, Jacksonville, Fla., for appellee.
Before THORNBERRY and DYER, Circuit Judges, and KEADY, District Judge.
Appellant was indicted for refusal to be inducted into the armed forces of the United States on September 26, 1967, in violation of 50 U.S.C.App. § 462(a).1 He entered a not guilty plea, was tried before the District Court without a jury, convicted, and sentenced to a term of four years' imprisonment. Defendant contends on this appeal, as at trial, that he was wrongfully deprived of a hearing before an officer of the Department of Justice when his appeal from 1-A classification was processed under § 6(j) of the Military Selective Service Act of 1967, Pub.L. 90-40, 81 Stat. 100, 50 U.S.C.App. § 456(j), rather than under the provisions of its statutory predecessor, the earlier Universal Military Training and Selective Service Act.
On January 28, 1963, appellant registered with his local selective service board, as required by 50 U.S.C.App. § 453, and was placed in 1-A classification shortly thereafter. He received a series of student deferments for the next several years, but on March 6, 1967, was again placed in Class 1-A. On March 24, 1967, he appeared before his local board, requesting further deferment as a student, which request was rejected unanimously. On May 9, 1967, appellant applied for conscientious objector status (1-O), and his 1-A classification was reopened for consideration of that application; his request was denied and his classification remained 1-A. On May 26, 1967, he filed with the local board an appeal from this classification; on June 13, 1967, the local board forwarded his file to the appeal board which met on July 12, 1967, and voted to continue appellant in the 1-A classification.2 On August 29, 1967, appellant was notified of this decision and was also advised that no further action was contemplated by the Selective Service officials. On September 6, 1967, appellant was ordered by the local board to report for induction, to which he interposed objection for not having received Department of Justice consideration of his claim as a conscientious objector.
On the date appellant perfected the appeal of his 1-A classification, and until June 30, 1967, § 6(j) of 50 U.S.C.App. § 456(j) provided that in the case of an adverse ruling by a local draft board on a registrant's claim for draft exemption as a conscientious objector, the registrant might appeal to an appeal board, in which case the Department of Justice, after appropriate inquiry, was required to hold a hearing and hereafter to make a recommendation to the appeal board as to the registrant's inductibility or deferability.3 The New Military Selective Service Act of 1967, Pub.L. 90-40 § 1(7), which became effective on June 30, 1967,4 — subsequent to the date appellant perfected his appeal but prior to a referral of his file to the Justice Department — omits all reference to a hearing conducted by the Department of Justice on referral from a state appeal board, thereby repealing the former procedure. The appeal board, on July 12, 1967, classified appellant 1-A without the benefit of Justice Department assistance, apparently taking the position that appellant's right to a Justice Department investigation and hearing died with the old law.
The District Court correctly held that appellant had no vested right to the form of administrative procedure in effect on the date he appealed his 1-A classification and that the provisions of the Military Selective Service Act of 1967 were properly applied to his appeal.
Although this nation has, throughout its history, consistently accorded deference to those who conscientiously objected to military service,5 there is no constitutional right to exemption as a conscientious objector — it is merely a grant from Congress, extended out of respect for the religious or moral scruples of the individual and in recognition of the fact that to conscript those opposed to war would be detrimental to the morale of the military. United States v. Macintosh, 283 U.S. 605, 51 S. Ct. 570, 75 L.Ed. 1302; Girouard v. United States, 328 U.S. 61, 66 S.Ct. 826, 90 L.Ed. 1084. See also Imboden v. United States, 194 F.2d 508 (6 Cir. 1952), cert. den. 343 U.S. 957, 72 S.Ct. 1052, 96 L. Ed. 1357. The power "to declare war" necessarily connotes the plenary power to wage war with all the force necessary to make it effective. The power "to raise armies" necessarily connotes the like power to say who shall serve in them and in what manner. "From its very nature the war power, when necessity calls for its exercise, tolerates no qualifications or limitations * * *." United States v. Macintosh, 283 U.S. at 622, 51 S.Ct. at 574, 75 L.Ed. at 1309.
In United States v. Nugent, 346 U.S. 1, 73 S.Ct. 991, 97 L.Ed. 1417, the questions presented were whether, under the old statute, selective service registrants were entitled, at the Department of Justice hearing, to examine the FBI reports of investigations of their background and reputation for sincerity, and, if not, whether the statute, as so construed, amounts to a denial of due process of law. The Court answered both questions in the negative, stating at 346 U.S. 8, 73 S.Ct. 996, 97 L.Ed. 1424-1425 as follows:
Thus, it appears that the provision for a Department of Justice inquiry, hearing and recommendation was merely a specialized procedure for assisting an appeal board to reach a more informed judgment with respect to conscientious objector claims,6 and did not create substantive rights for claimants.
This special concern manifested by the Congress in calling for Department of Justice processing was unique to conscientious objectors and never granted for registrants of any other class.7 Prior to the adoption of the June 30, 1967, amendment, failure to conduct a Department of Justice hearing required reversal of a conviction for refusal to submit to induction. Bates v. United States, 348 U.S. 966, 75 S.Ct. 529, 99 L.Ed. 753, Per Curiam (1955); Sterrett v. United States, 216 F.2d 659 (9 Cir. 1954). Appellant contends that the amendment should apply prospectively only and not to a pending case, and also that to apply the change in law and regulations to him during the pendency of his appeal would be unjust since he, in anticipation of and relying upon being accorded a Department of Justice hearing, had refrained from personally appearing before the local board in support of his claim as a conscientious objector.8 In answer thereto, appellee urges that the 1967 amendment was merely remedial and procedural in nature and not subject to the general rule that, absent a clear legislative intent to the contrary, statutes are to be given prospective effect only.
Appellant's hardship, to the extent it may exist, resulted primarily from his failure to utilize the procedures before the local board available to all registrants; and his claim for denial or right cannot stand upon a mere change in the policy of Congress occasioned by the withdrawal of special procedures which it saw fit no longer to provide. Insofar as the amendment to § 6(j) is concerned, it unmistakably related to matters of procedure and remedy only and not of substance. No exception appears in the amendment for appeals pending at time of enactment, nor is other indication given that the amendment should be less than universally applied. Even if the amendment contained an ambiguity, which is not the case, its legislative history serves to remove all doubt.9 The Senate and House Committee reports disclose that the provision for Department of Justice processing of conscientious objector claims was eliminated to avoid substantial and unnecessary delays caused by the increased number of such appeals without corresponding significant advantages.10
The congressional committees were directly informed by the Attorney General that it would minimize uncertainty and avoid the risk of procedural defenses in prosecution "if a transitional provision were added * * * to specify the intent of Congress with respect to the proper procedure in pending appeals."11 This recommendation was not adopted.12 We thus perceive no reason why purely administrative and procedural changes in laws presently operating to draft the manpower of this nation for military service should have other than a direct and immediate effect to accomplish the vital purpose of the legislation.
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