United States v. Bornemann

• Decision Date: 05 January 1970
• Docket Number: Docket 33716.,No. 282,282
• Citation: 424 F.2d 1343
• Parties: UNITED STATES of America, Appellee, v. Stephen BORNEMANN, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

424 F.2d 1343 (1970)

UNITED STATES of America, Appellee, v. Stephen BORNEMANN, Appellant.

No. 282, Docket 33716.

United States Court of Appeals Second Circuit.

Argued December 9, 1969.

Decided January 5, 1970.

F. Mac Buckley, Asst. U. S. Atty., Hartford, Conn. (Stewart H. Jones, U. S. Atty., on the brief), for appellee.

Catherine G. Roraback, Canaan, Conn., for appellant.

Before MOORE and KAUFMAN, Circuit Judges, and RYAN,^* District Judge.

IRVING R. KAUFMAN, Circuit Judge:

A Selective Service Appeal Board may base its denial of an application for conscientious objector status on one of two grounds: a determination that the substance of the applicant's beliefs does not qualify him for the statutory exemption or a conclusion that the applicant is not sincere in his beliefs. In this case, it is unquestioned that the beliefs of the appellant Stephen Bornemann, if sincerely held, would entitle him to classification as a conscientious objector. We must rule on the less tangible question of sincerity; specifically, we must decide whether an Appeal Board may properly draw an inference of insincerity from an applicant's presentation of his claim when it became relevant to his Selective Service classification, rather than when it matured.¹

Stephen Bornemann registered with Local Board No. 20 in Torrington, Connecticut on November 24, 1962, his eighteenth birthday. At this time he was a freshman at Trinity College in Hartford, Connecticut and, although initially classified I-A (available for service), he was clearly entitled to a student deferment under current Selective Service policies. His board recognized this fact for, the following autumn, as soon as an official of the College notified the board that Bornemann was satisfactorily pursuing a course of instruction at Trinity, he was placed in classification II-S (student deferment).

Bornemann retained his student deferment without interruption until his graduation from college in June 1966. On the 23rd of that month, the board reclassified him I-A, following the practice it pursued with all who graduated. One month before his graduation, however, Bornemann had learned of his acceptance as a volunteer in VISTA (Volunteers In Service To America), an anti-poverty program established by the Economic Opportunity Act of 1964. On this ground he had requested an occupational deferment. He had good reason to believe that this request for a II-A classification would be favorably received. A VISTA information booklet, which became a part of Bornemann's Selective Service file, stated that VISTA volunteers usually received occupational deferments. Moreover, a Selective Service Statement distributed in June 1965 recognized that the "establishment and operation of VISTA is in the national interest" and concluded that "the classification of registrants in VISTA can be handled as any other registrant engaged in activities in the national health, safety, or interest." Bornemann's expectations were well founded. On July 7, 1966, less than ten days after he had received notice of his I-A classification, he was granted an occupational deferment by the unanimous vote of his local board.

Bornemann's experience with VISTA was brief and apparently unsatisfactory, for shortly after entering the training program he resigned. He informed his local board that he agreed with the goals of the program but could not accept the methods it employed to achieve them. Having been apprised of the resignation by both Bornemann and VISTA, the Board placed Bornemann in Class I-A on August 11, 1966.

Upon receiving notice of his reclassification, Bornemann requested that his board send him SSS Form No. 150 (Special Form for Conscientious Objector). This request was the first indication given the Board that he was a conscientious objector. Bornemann completed the SSS 150 and returned it to his board on September 2, the due date stamped upon the front page of the form. The completed application showed a gradual and coherent evolution of Bornemann's conscientious objections to military service, convictions planted by his family background and early religious training and ripened by more recent religious experiences, readings in the literature of non-violence, and documented association with a number of pacifist groups during his years in college. Bornemann's father had been a conscientious objector during World War II, and his mother had been educated in a Quaker school. His entire family had a marked international bent; every member had participated, either as host or visitor, in the student exchange program sponsored by the American Field Service, an organization devoted to international peace and understanding. Bornemann had received his early religious training in the Congregational Church, and, although not a member of any particular sect, while in college he attended religious services of several different denominations. Among the means by which he had expressed his opposition to war while a student at Trinity College was by helping to sponsor a meeting of pacifist groups, including the American Friends Service and the Committee for Non-Violent Action.

At his personal appearance before his local board on October 13, 1966, Bornemann revealed that he had been conscientiously opposed to service in the armed forces since the age of eighteen. Asked why he had not requested classification as a conscientious objector at the time he first registered with the Selective Service System, he responded that he had not considered such a request necessary since, until August 1966, he had always been classified in either II-S or II-A. Following this personal appearance, the board unanimously denied his request for classification as a conscientious objector, and Bornemann appealed from this denial.

In accordance with the procedures then in force, the Appeal Board made a preliminary determination that Bornemann should not be placed in classification I-O, then referred the appeal to the Department of Justice for investigation and report.² The Federal Bureau of Investigation proceeded to compile an extensive report on Bornemann's views, experiences, and associates during the period since his eighteenth birthday. Agents contacted high school teachers, neighbors, college officials, and college roommates. Of these individuals many who had not seen Bornemann recently were surprised to learn that he now claimed to be a conscientious objector, and several expressed disapproval of a change in his manner and appearance which they had discerned during the previous two years, but all were of the opinion that Stephen Bornemann was likely to be sincere in whatever position he expressed. On the basis of this report and the testimony of Bornemann, his father, his wife, and a clergyman at a hearing held on September 11, 1967, the Department of Justice hearing officer concluded that Bornemann was sincere and recommended that he be classified as a conscientious objector to all service in the armed forces.

However, T. Oscar Smith, the Chief of the Department's Conscientious Objector Section took issue with the conclusion of the hearing officer He based this disagreement on two factors. First, Smith noted an apparent inconsistency between a statement contained in Bornemann's application for conscientious objector status and a subsequent statement set forth in the local board's summary of his personal appearance.³ Second, in Smith's view Bornemann's failure to present his constitutional objections to his local board prior to August 1966 evidenced a lack of sincerity. Consequently, on November 9, 1967 the Department of Justice concluded "that the registrant is not sincere in his conscientious-objector claim and recommended to the Appeal Board that the claim be not sustained and that he be not classified in Class I-O or in Class I-A-O." The Appeal Board accepted this recommendation and, the following February, voted unanimously to deny Bornemann conscientious objector status. Since Selective Service Boards are exempt from those provisions of the Administrative Procedure Act which require administrative agencies to make written findings, we cannot know whether the Appeal Board accepted the rationale proposed by the Department of Justice or acted for reasons of its own.

As a result of the Appeal Board's determination, Bornemann's induction into the armed forces was set by his local board for September 4, 1968. Prior to this date, however, he notified the board that his convictions would prevent him from submitting to induction. True to his word, he appeared at the induction center on the appointed day but refused to be inducted. He was indicted for this refusal, tried in the District of Connecticut before Judge Blumenfeld, sitting without a jury, convicted and sentenced to an indefinite term under the Youth Corrections Act, 18 U.S.C. § 5010 (b).

We have been instructed that in a conscientious objector case where the ultimate question is the sincerity of the registrant, "objective facts are relevant only insofar as they help in determining the sincerity of the registrant in his claimed belief, purely a subjective question." Witmer v. United States, 348 U.S. 375, 381, 75 S.Ct. 392, 396, 99 L.Ed. 428 (1955). Because of the circumstances in this case, therefore, we are required to determine whether the Department of Justice improperly concluded that Bornemann's failure to bring his conscientious objections to military service to the attention of his local board prior to August 1966 was a relevant objective fact from which the Appeal Board could infer insincerity.

Section 465(b) of 50 App.U.S.C., the statute in force at all times during the period when Bornemann's classification was in question, provided that "it shall be the duty of every registrant to keep his local board informed as to * * * changes in status as required by such rules and regulations as may be prescribed by the President." The applicable regulation, 32 C.F.R. §...