United States v. Andersen, 26659.

• Decision Date: 19 August 1971
• Docket Number: No. 26659.,26659.
• Citation: 447 F.2d 1063
• Parties: UNITED STATES of America, Appellee, v. Richard Martin ANDERSEN, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

447 F.2d 1063 (1971)

UNITED STATES of America, Appellee, v. Richard Martin ANDERSEN, Appellant.

No. 26659.

United States Court of Appeals, Ninth Circuit.

August 19, 1971.

J. B. Tietz (argued), Los Angeles, Cal., for appellant.

Richard L. Jaeger, Asst. U. S. Atty. (argued), Robert L. Meyer, U. S. Atty., David R. Nissen, Chief, Crim. Div., Los Angeles, Cal., for appellee.

Before MERRILL, ELY, and HUFSTEDLER, Circuit Judges.

ELY, Circuit Judge:

Andersen was convicted for having failed to submit to induction into the armed forces. 50 U.S.C. App. § 462. We have concluded that the local board had no basis in fact for denying Andersen's timely claim for exemption as a conscientious objector; hence, the judgment of conviction must be reversed.

Andersen had received both student II-S and occupational II-A deferments from his local board, the latter for a computer programming course he completed in March, 1969. On March 7, 1969, and on April 2, 1969, Andersen submitted completed applications for a conscientious objector classification SSS Form 150, which were later followed by supporting correspondence. His claim for exemption was based on religious training and belief. It was denied by the local board after a courtesy interview and a personal appearance. The appeals board also rejected the claim, and when called for induction on March 17, 1970, Andersen refused to submit.

Andersen presented a rather complete prima facie claim for conscientious objection. His almost identical applications detail the religious upbringing he received at home, his admiration of, and his association with, a relative who was a medical missionary in Japan, and his objection to war in any form based on the teachings of the Old Testament and the various churches that Andersen regularly attended. The minister of the church with which Andersen had been associated since childhood, and of which his father was an elder, wrote a strong supportive letter, as did the minister of Andersen's wife's church and Andersen's employer.

Based upon this showing, it was incumbent upon the board to set forth its reasons for its denial of Andersen's application. United States v. Haughton, 413 F.2d 736 (9th Cir. 1969). When the board denied Andersen's claim after the courtesty interview, it entered in the minutes the statement that Andersen did not have the "proper background for CO conscientious objector classification." However, this is an invalid reason to deny Andersen's claim. His file amply demonstrates that his beliefs, if sincerely held, would qualify him for conscientious objection. Cf. United States v. Bornemann, 424 F.2d 1343 (2d Cir. 1970).¹

However, Andersen's sincerity (or lack thereof) was set forth by the board as its reason for denying him conscientious objector classification after his personal appearance. A minute entry indicates the board did "not believe registrant to be sincere in his religious beliefs."

The gravamen of a conscientious objector claim, of course, is the sincerity of the applicant. Witmer v. United States, 348 U.S. 375, 75 S.Ct. 392, 99 L.Ed. 428 (1955). Nevertheless, "mere disbelief in the sincerity of a registrant, grounded on no objective evidence of insincerity, will not suffice to deny a registrant an exemption as a conscientious objector." United States v. Hayden, 445 F.2d 1365, 1373 (9th Cir.1971). See also Dickinson v. United States, 346 U.S. 389, 74 S.Ct. 152, 98 L.Ed. 132 (1953); United States v. Abbott, 425 F.2d 910 (8th Cir. 1970); Parrott v. United States, 370 F.2d 388 (9th Cir. 1966). Here, the board did not point to any such "objective evidence" which would support its finding.

The Government, however, urges that evidence sufficient to support an inference of insincerity appears from the face of the record. It first argues that Andersen's conscientious objector application, while timely under the regulations, was not made until "he felt the proverbial hot breath of the Selective Service System * * *." However, aside from the assumption implicit in this argument as to when Andersen's beliefs "crystallized" to the point that a sincere applicant would have sought conscientious objection, the Government concedes that belated filing of an otherwise timely conscientious objector claim does not permit an inference of insincerity in cases wherein there was not at least a certain period of time during which the presentation of the claim might have resulted in a different classification. See, e. g., United States v. Abbott, supra; United States v. Bornemann, supra. The regulations do not require a registrant to file for an exemption as soon as he qualifies therefor, but only that he promptly report facts which could change his classification. 32 C.F.R. § 1625.1(b). Inasmuch as 32 C.F.R. § 1623.2 requires a board to classify a registrant "in the lowest class for which he is determined to be eligible," the Bornemann court was, as are we, "compelled to conclude" that the "facts" alluded to in section 1625.1(b)

"are those which could result in a registrant being placed in a lower classification. Any other construction would mean that already busy boards would be required to receive, record, consider and file reams of immaterial information having no bearing on the classification then held by a registrant, an intention the drafters of the regulations could scarcely have entertained."

424 F.2d at 1347.

Here, the Government notes that Andersen was classified I-A by his board, a higher classification than I-O, between March 1, 1968, and September 11, 1968; however, Andersen timely requested a personal appearance on March 18, 1968. Information supplied by Andersen at that appearance duly qualified him for a II-A deferment, a lower classification than I-O. Thus, information bearing on a potential I-O claim would not have been considered by the board at that time. As soon as Andersen's beliefs were relevant to a classification decision, that is, near the expiration of his II-A deferment in April, 1969, he promptly notified the board of his conscientious objection. Like Bornemann, he therefore "brought his conscientious objections to the attention of his board as soon as 32 C.F.R. § 1625.1(b) required him to do so." 424 F.2d at 1348. In our view, as in the view of the Bornemann court, "it would be improper to...