United States v. Bryan

• Court: U.S. District Court — Northern District of Georgia
• Writing for the Court: On this same questionnaire, Bryan listed his occupation as a "Labeler (Warehouse)" but commented
• Citation: United States v. Bryan, 263 F.Supp. 895 (N.D. Ga. 1967)
• Decision Date: 07 February 1967
• Docket Number: No. Cr. A-24905.,Cr. A-24905.
• Parties: UNITED STATES of America v. Stanley Wade BRYAN.

263 F. Supp. 895

UNITED STATES of America v. Stanley Wade BRYAN.

No. Cr. A-24905.

United States District Court N. D. Georgia.

February 7, 1967.

Charles B. Lewis, Jr., Asst. U. S. Atty., Atlanta, Ga., for plaintiff.

Paul E. Pressley, Atlanta, Ga., for defendant.

MEMORANDUM OF DECISION

BLUMENFELD, District Judge.^*

Stanley Wade Bryan stands charged with violating 50 U.S.C.App. § 462(a) because of his refusal to submit to induction as ordered by his local Selective Service Board.

The defendant concedes that he reported for induction on June 24, 1966 and refused to take the symbolic "one step forward" when his name was called for induction.

This case was tried to the court, after indictment and waiver of jury trial. The Government offered into evidence the defendant's entire Selective Service File and thereupon rested its case.

The defendant has moved for a judgment of acquittal contending that the order to report for induction was invalid because the classification given him by his local board has "no basis in fact." He contends that the board had no evidence before it which would support its denial of defendant's claim of classification as a 1-O conscientious objector.

To overcome his admitted failure to file an appeal from his 1-A classification, defendant claims in addition that he was deprived of his right to appeal by the action of the local board. Evidence in support of this alternative contention was introduced at the trial. A statement of what occurred is essential to an understanding of his contention.

I.

In November of 1964, upon attaining the age of 18, Bryan registered with his local draft board as required by law. On December 10, 1964, his local board mailed him a Classification Questionnaire (Form No. 100). Defendant completed this form and returned it to his local board on December 21, 1964. On this form, he indicated that he was working 40 hours a week as a "Case labeler under classification of stockman" for a national clothing manufacturer. He wrote that he considered himself to be a minister who had been formally ordained as a Jehovah's Witness. He also claimed that he was a "Conscientious Objector" to war. In support of these assertions, Bryan revealed that he was an "assistant magazine and territory servant" and that he had "pioneered" from July 1 to July 31, 1962. He further indicated that he was "Arranging his affairs so as to be able to pioneer full time in the near future." These statements by him were sufficient to put the local board on notice that Bryan claimed a 1-O classification.

While a request for classification as a conscientious objector solely because of alleged ministerial activities does not meet the requirements of the law, United States v. Coon, 153 F.Supp. 96 (D. Utah 1957), these statements by him were sufficient to put the local board on notice that Bryan claimed a 1-O classification. Although his request was somewhat ambiguously stated, it should have been liberally construed to state a request for a conscientious objector classification. See United States v. Derstine, 129 F.Supp. 117 (E.D.Pa. 1954); cf. United States v. Hagaman, 213 F.2d 86 (3d Cir. 1954).

It was apparently so understood by them for on December 21, 1964, the local board mailed Bryan a "Special Form for Conscientious Objector" (Form No. 150). This form was received back at the board on January 4, 1965. In this questionnaire, Bryan indicated that he claimed an exemption from both combatant and noncombatant training and service. He based this claim on his belief in a Supreme Being and the following statement:

"I as one of Jehovah's Witnesses and by means of association with them and through personal Bible study feel that I can never take part in the Armed Forces of this or any other country. For indeed to do so would mean compromising my Faith in Almighty God."

Furthermore in answer to a question regarding his belief in the use of force, Bryan responded:

"I believe that the only time I may use force is if and when instructed by Almighty God. In self defense, in procting sic my family and my `brothers' Those having the same beliefs as I."

On this same questionnaire, Bryan listed his occupation as a "Labeler (Warehouse)" but commented:

"Job listed is a means of supporting myself but the ministry is my main occupation for which I receive no monetary compensation."

The next step was the receipt by Bryan of a SSS Form No. 110 informing him of a 1-A classification. This card was mailed on January 13, 1965. On this date the local board also sent Bryan the following letter:

"This is to advise you that at the Board meeting of January 13, 1965 the Board members did not grant you a 1-A-O or a 1-O classification.

"If you wish to appeal this classification of 1-A, this must be done within ten days, your file will then be sent to the Appeal Board."

Defendant took no appeal from this classification, although he testified at the trial that his failure to take an appeal was a result of misinformation given him by an employee of his local board. This point, crucial to a decision in this case, will be discussed below.

II.

Faced with the record which reveals that the defendant did not file an appeal or request for a personal appearance before the board within 10 days from the time he was classified 1-A, or from the date he was notified that his claim for exemption from combatant training and service because of his conscientious objections was not granted, the defendant contends that he was deprived of a right to appeal by the effect of the advice that an appeal would be fruitless which he received from the clerk at the local board.

Turning now to whether the defendant was induced to forego his right to appeal by reason of conduct attributable to his local board, nothing in the file of the board directly supports this. Bryan received his notice of classification on a Form 110—a postcard, one part of which sets forth the right to a personal appearance and/or an appeal. In addition the letter from his local board on January 13, 1965, informed him that he had 10 days to appeal his 1-A classification.

However, defendant testified under oath that he went to the office of his local board within a few days of receiving his 1-A classification. He went there "to see about taking an appeal." No list of advisors was posted in a conspicuous place. But he talked to a clerk of the board employed in the office. The clerk manifested a good deal of knowledge as to Jehovah's Witness cases, including the distinction among levels of Jehovah's Witness hierarchy. When he informed the clerk that he was not at that level of the Jehovah's Witness hierarchy known as "Pioneering," she advised him that any steps in an appellate process in his case would be fruitless. Pursuant to this "advice," defendant returned home and did nothing further either to perfect his appeal or to request a personal appearance before the board.

The distinction between a classification as a minister (Class IV-D) and exemption as a conscientious objector (1-O) was still not clear to him for in a signed and witnessed statement given that day at the induction center, defendant revealed:

"P.S. I applied for a concientious sic objectors sic classification as a minister but my request was denied." (Emphasis added)

One need not be a minister in order to qualify for a 1-O Classification— Conscientious Objector Available For Civilian Work Contributing to Maintenance of National Health, Safety, or Interest.¹ 32 C.F.R. Section 1622.14.

The question by the clerk, "Are you pioneering?" was relevant only to whether defendant was entitled to a IV-D classification as a minister. It had no bearing on a 1-O classification request.

The effect of the statement of the local board employee that it would be useless to take an appeal in defendant's case was such as to affirmatively mislead him as to his appeal rights.

On the back of the classification card (Form No. 110) he received was the statement in bold print:

"For Information And Advice, Go To Any Local Board"

Defendant did just that. He went to his own board. On arriving there, he found no list of advisors. When he asked someone whom he discovered there for advice, he was met with a question which showed some apparent relation to his problem. The reference to "pioneering" by the local board employee would tend to indicate that here was someone who was knowledgeable about the administration of the Selective Service Act. The question smacked of expertise. When the questioner went on to advise him that an appeal would be futile, defendant was justified in relying on her advice.

That he relied upon this advice can hardly be questioned. Unaware of any other course to follow thereafter, in his mind the only choice was "between the rock and the whirlpool," as shown by his refusal to submit to induction.

III.

Thus the issue immediately confronting this court is whether or not defendant's failure to exhaust his administrative remedies because he was led by his local board to believe that an appeal would be futile should foreclose him from challenging the order of the board.

It should be noted first that a court is not in any sense a super draft board, e. g., Witmer v. United States, 348 U.S. 375, 380, 75 S.Ct. 392, 99 L.Ed. 428, 433 (1955); its jurisdiction in Selective Service cases is limited to attacks on the jurisdiction of the Selective Service Boards themselves, virtually always on the grounds that there is absolutely no basis in fact for a particular finding of the board. Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567 (1945). Where all steps in the administrative process have been followed, the function of the District Court is laid down in Dickinson v. United States, ...