United States v. Beaver

• Decision Date: 03 October 1962
• Docket Number: No. 8572.,8572.
• Citation: 309 F.2d 273
• Parties: UNITED STATES of America, Appellee, v. Charles Henry BEAVER, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

309 F.2d 273 (1962)

UNITED STATES of America, Appellee, v. Charles Henry BEAVER, Appellant.

No. 8572.

United States Court of Appeals Fourth Circuit.

Argued May 30, 1962.

Decided October 3, 1962.

Certiorari Denied January 7, 1963.

Richard M. Welling, Charlotte, N. C. (Hayden C. Covington, Brooklyn, N. Y., on brief), for appellant.

Harold W. Gavin, Asst. U. S. Atty. (Robert H. Cowen, U. S. Atty., on brief), for appellee.

Before BRYAN and BELL, Circuit Judges, and BARKSDALE, District Judge.

Certiorari Denied January 7, 1963. See 83 S.Ct. 505.

ALBERT V. BRYAN, Circuit Judge.

Conscientious objector (Jehovah's Witness) Charles Henry Beaver appeals his conviction of refusing to be inducted into the military forces as ordered by his local draft board pursuant to the Universal Military Training and Service Act, 50 U.S.C. Appendix, §§ 451, 462(a). At trial the Court found he had adopted his beliefs some three months before the order for induction or about five years after his registration. Appellant contends this finding proves the invalidity of the order, relying upon 50 U.S.C. Appendix, § 456 (j) and alleged administrative faults depriving him of an opportunity to invoke draft exemption. The section reads:

"Nothing contained in this title sections 451-454 and 455-471 of this Appendix shall be construed to require any person to be subject to combatant training and service in the armed forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form. * * *"

However, the Court determined — as did the board — that the exemption had not been claimed in the manner required by Selective Service Regulations. Deliberate refusal of induction being admitted, Beaver's conviction followed.

The argument on this appeal is focused on whether the Act's exemption is absolute or is controllable by regulation. Orderly allowance of the exemption, in our opinion, warrants reasonable rules for its invocation. The regulations here pertinent are just; Beaver was confessedly in non-compliance with them, and accordingly was not entitled to exemption. We affirm.

Prescription of "necessary rules and regulations to carry out the provisions" of the Act is therein authorized. 50 U. S.C. Appendix, § 460(b) and (c). The authority to promulgate them was vested in the President, and by him delegated to the Director of the Selective Service System. The regulations particularly pertinent in this case are the following, 32 C.F.R.:

1641.3 "Communication by mail. It shall be the duty of each registrant to keep his local board advised at all times of the address where mail will reach him. * * *"

1625.1 "Classification not permanent.

* * * * *

"(b) Each classified registrant * * * shall, within 10 days after it occurs, report to the local board in writing any fact that might result in the registrant being placed in a different classification. * * *"

1625.2 "When registrant\'s classification may be reopened and considered anew. The local board may reopen and consider anew the classification of a registrant (1) upon the written request of the registrant * * * if such request is accompanied by written information presenting facts not considered when the registrant was classified, which, if true, would justify a change in the registrant\'s classification; * * provided * * * 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." (Emphasis supplied)

1625.4 "Refusal to reopen and consider anew registrant\'s classification. 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 reopen the registrant\'s classification. In such a case, the local board, by letter, shall advise the person filing the request that the information submitted does not warrant the reopening of the registrant\'s classification and shall place a copy of the letter in the registrant\'s file. No other record of the receipt of such a request and the action taken thereon is required."

Appellant registered on September 14, 1954, submitted to a physical examination and on April 23, 1957, was classified I-A. About May 13, 1958, he gave the local board his mailing address as 908 Durham Street, Burlington, North Carolina, doing so on Form NC 26, "Current Information For Local Board".

He moved to Gibsonville, North Carolina, in December, 1958, but did not notify the board of the change of address. In fact, he gave no such notice until September 2, 1959, after he had been ordered to report for induction. At trial he admitted awareness of the regulation requiring him to keep the board advised of his mailing address.

Beaver, the Court found, became a minister of Jehovah's Witnesses and a conscientious objector on or about May 9, 1959. Word of his conversion to this belief was not sent the board at any time prior to receipt by him of his order for induction on or about August 26, 1959.

August 12, 1959, the local board sent to appellant by mail to his Burlington address a new current information Form NC 26. This form required an answer on or before August 22nd, but it was not completed and returned to the board until after the order to report was issued. That order was issued and mailed to Beaver on August 25th, directing him to report for induction on September 9, 1959.

Beaver testified that he did not receive the board's communication of August 12, 1959 — enclosing the current information request — until after the response date of August 22nd. On August 31, 1959, having received the order to report dated August 25, Beaver mailed to the local board a letter in which, disclosing his ministry, he requested a form for conscientious objectors (Form 150) with consequent reopening of his classification and the right of personal appearance. He asked for a written reply on whether his request to reopen would be granted. Enclosed with his letter was an affidavit as to his clerical status and also the completed "Current Information for Local Board" form. This letter with enclosures was received by the board on September 2, 1959.

In reply, by letter dated September 4, 1959, the local board sent him the conscientious objector form and a form postponing his induction. The letter advised him:

"The postponement was granted in order for the Board to consider your case at the next board meeting. You will be advised after said meeting if your case is to be reopened. If the Board reopens your case, you will then have the right to personal appearance and appeal. If the case is not reopened, you will be expected to report for induction with our October call."

Meeting September 19, 1959, the board considered the completed conscientious objector form as well as the other papers heretofore mentioned submitted by Beaver, and decided that this evidence, all of which was submitted by Beaver subsequent to the issuance of the order to report for induction, did "not evidence * * * a change in status resulting from circumstances of which he had no control". On that day the board wrote appellant "You are hereby ordered to report * * * October 1, 1959 * * * for induction".

Beaver reported for induction on October 1, 1959, and on the same day the board received a letter from him stating he had written the Presidential Board, Washington, D. C. advising it of "my being a minister and conscientious objector and having not been classified accordingly." On October 2, 1959, he executed a written refusal to be inducted into the armed forces.

I. The fundamental assault of Beaver on his conviction is this: the exemption granted by the Act in § 456(j), supra, contains no limitation upon the time for assertion of the exemption of a conscientious objector, and that consequently Service Regulation 1625.2 cannot override the Act by a stipulation 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. * * *" While there is some authority to uphold this view — United States v. Underwood, 151 F.Supp. 874 (E.D.Pa.1955), for example — we agree with Keene v. United States, 266 F.2d 378, 383 (10 Cir. 1959) that the better view is opposed to these decisions. In our opinion 1625.2 is a fair regulation for the guidance of the board in extending the exemption to registrants. In Keene v. United States, supra, Judge Murrah in speaking for the Court upon the very statute here involved — giving exemption for religious beliefs — epitomized the reasons for our conclusion, 266 F.2d at 383:

"Concededly, no one has a constitutional right to exemption from military service. It is a matter of legislative grace. * * *

"It does not seem unreasonable or derogatory to the spirit and purpose of the exempting statute to provide by regulation that no request for reopening and reclassification shall be entertained after notice to report for induction is mailed. Otherwise, the whole machinery of the selective service process may conceivably be disrupted by last minute changes in status for purposes of avoidance. Such is the manifest purpose of the proviso in Regulation 1625.2. We think the Regulations have application to a conscientious objector\'s claim as all other claims for a change in status. It seems also entirely consistent with the procedural safeguards provided in the selective service

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