United States v. Brown, 71-2695.
| Decision Date | 06 April 1972 |
| Docket Number | No. 71-2695.,71-2695. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. John Wesley BROWN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Mark F. Howell, by Janet Ruesch Pauls, El Paso, Tex., for defendant-appellant.
Seagal V. Wheatley, U.S. Atty., Ralph E. Harris, Asst. U.S. Atty., El Paso, Tex., Victor K. Sizemore, Asst. U.S. Atty., Albuquerque, N.M., William S. Sessions, U.S. Atty., San Antonio, Tex., Edward S. Marquez, Asst. U.S. Atty., El Paso, Tex., for plaintiff-appellee.
Before BELL, DYER and CLARK, Circuit Judges.
John Wesley Brown appeals his nonjury conviction of failing to submit to induction into the armed forces. 50 U.S.C.A. App. § 462(a). His sole defense was that his local board had unlawfully refused to classify him as a conscientious objector. After a full trial upon the merits, the district judge found that there was a "basis in fact" for the board's action, Estep v. United States, 327 U.S. 114, 122, 66 S.Ct. 423, 427, 90 L.Ed. 567, 573 (1946), and consequently adjudged Brown guilty. We affirm.
Brown first registered with his local board on May 18, 1967, but made no claim to conscientious objector status at that time, although he was shortly thereafter classified 1-A. He later applied for and received a 2-S undergraduate student deferment, because he had become a freshman at the University of Texas. He retained this deferment until he was placed on scholastic probation and failed to register for the spring 1970 semester. He was then reclassified 1-A and ordered to report for armed forces physical examination. He submitted a "current information questionnaire" on May 6, 1970, which indicated that he had completed two years of college, but still made no conscientious objector claim. Brown was ordered to report for induction July 20, 1970, and on that date indicated to officials in charge that he would refuse induction on the ground that he was opposed to all war. On August 4, 1970, he first formally notified his local board of his claim, stating:
Brown thereupon filed his SSS Form 150 with the local board, and also forwarded a letter to the State Director of the Selective Service System, in both of which he outlined his religious beliefs and stated his opposition to war in all forms. The substantive content of those beliefs is not at issue here. Apparently as a result of his letter, the State Director, pursuant to 32 C.F.R. § 1625.3, requested that the local board reopen Brown's classification and indicated that such reopening would cancel the induction order. The local board thereupon notified Brown that he should appear for a personal interview on August 20, 1971. At that interview, Brown indicated that: he had started thinking about his claim several years before but had not brought it up with the board because he thought it was not based on "religious grounds"; he was attending meetings of the Baha'i faith; he had tried to enlist in the Navy because he felt the Navy was "away from the conflict"; he did not know what he would do if someone were to attack this country; and that he could not explain why he did not realize until he went for induction that he was a conscientious objector. The board then indicated it needed more information, and received from Brown a list of family, friends, and other references who might be helpful in assessing his beliefs. The board contacted the six persons on that list, asking for any personal knowledge each had concerning Brown. Three of these responded; one indicated he had not sufficient information upon which to base any judgment as to Brown's beliefs, and the other two lent some support to the claims Brown had made. The board also wrote Brown's father asking that he "give any information which would confirm or refute your son's claim that he is a conscientious objector." The reply from Brown's father, George W. Brown, besides indicating displeasure with some of John's friends at the University, also stated that John "has never been religious, and as far as I know he has no claim to being a conscientious objector." After reviewing all information before them, giving special consideration to all letters submitted, the board unanimously concluded that Brown was not sincere and denied his request.
The board took final action on Brown's application on October 15, 1970, by deciding not to reopen his classification after having received an additional letter in his behalf. The board members assigned the following reasons for denying the claim:
The board's decision was unanimously affirmed by the State Appeal Board on November 13, 1970, and Brown was ordered to report for induction January 13, 1971. He at that time again refused to take the symbolic step forward, and the prosecution which is the subject of this appeal ensued.
Two separate attacks are made here by Brown in his effort to undermine the board's classification. He first argues that none of the four reasons listed by the board furnishes a basis in fact for the action taken. Concerning the lateness of his claim, he points out that he would not have had reason to apply for a 1-O classification until he had lost his lower 2-S classification, and cannot be penalized for not doing so;1 that lateness in and of itself will not support a finding of insincerity;2 and that his undisputed testimony in the court below shows that the sole reason for his lateness was his reliance upon the erroneous advice he received from his aunt, the clerk of the local board, who told him he could not qualify for conscientious objector status. As to the attempt to join the Navy, Brown contends that this is not necessarily inconsistent with his professed beliefs, and that indeed, it was precisely the type of possibility an intelligent person might pursue when his only other alternatives were either prison, or a military commitment his conscience could not abide. Third, Brown asserts that the board must have either been unaware that the Baha'i Community is a religious-pacifist organization, or was prejudiced against its membership since, if anything, his participation therein substantiates his claims. Finally, Brown states before us, as he did at the trial below, that the letter from his father was actually prepared by his grandfather and the same aunt who misled him as to his right to a 1-O classification, and that the two of them cajoled his father into signing the letter while he was intoxicated.
The courts are not the super draft board that those who are unsuccessful before their board would have them be. The orderly processing of men into our armed forces—and more importantly, a clear Congressional mandate—will not allow it. Absent the application of some erroneous limiting procedure—a factor not present here—we look only to the record developed before the board to decide whether there was a basis in fact in that record for its decision that Brown was insincere.
Though the underlying policy and the law indeed afford the board an expansive discretion, it is nevertheless less than an unbridled one. There must be "hard, provable, reliable facts" in the record which provide a basis for disbelieving Brown3—facts which so substantially blur the picture he has painted as to cast doubt on his sincerity.4 Such facts are present here.
The timing of Brown's application was certainly such as to cast doubt upon his veracity and sincerity, and be worthy of the board's consideration. Rothfuss v. Resor, supra, 443 F.2d n. 2 at 555; United States v. Henderson, 411 F.2d 224 (5th Cir.1969). It does not avail Brown to argue that Rothfuss forbids denials based solely upon the timing of an application. Brown's belated realization of his conscientious objector status did not occur in a vacuum. It was the coalescence of that fact with several others that caused his application to be greeted with unanimous skepticism.5 The district judge summarized those facts in the following fashion: "it would appear to the Court that due to the shallow, uncertain nature or basis of the Defendant's claim, the sudden acquisition of belief that synchronized so perfectly with the Defendant's poor scholastic record and subsequent loss of his student deferment, as well as his attempt to enlist in the Navy to avoid combat, and the other facts shown in the Board's file, the Court accordingly finds that there is a substantial basis in fact for the denial of the request for classification by the Board of 1-O."
We agree with Brown that he should not be faulted for not applying for 1-O status while he...
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