United States v. Gearey, No. 86

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtLUMBARD, , FRIENDLY and KAUFMAN, Circuit
Citation368 F.2d 144
Decision Date21 October 1966
Docket NumberDocket 30551.,No. 86
PartiesUNITED STATES of America, Appellee, v. David Arthur GEAREY, Appellant.

368 F.2d 144 (1966)

UNITED STATES of America, Appellee,
v.
David Arthur GEAREY, Appellant.

No. 86, Docket 30551.

United States Court of Appeals Second Circuit.

Argued September 29, 1966.

Decided October 21, 1966.


368 F.2d 145
COPYRIGHT MATERIAL OMITTED
368 F.2d 146
Marvin M. Karpatkin, of Karpatkin, Ohrenstein & Karpatkin, New York City, for appellant

Paul K. Rooney, Asst. U. S. Atty. (Robert M. Morgenthau, U. S. Atty., for S. D. New York; Richard A. Givens, Asst. U. S. Atty., on the brief), for appellee.

Before LUMBARD, Chief Judge, FRIENDLY and KAUFMAN, Circuit Judges.

KAUFMAN, Circuit Judge:

The military conflict which now engages the nation has prompted much debate over our system of conscription. This controversy has been manifest not only in Congressional hearings, but also in numerous judicial proceedings in which the draft laws have been challenged. Probably no provisions have been examined more closely than those relating to the deferment of conscientious objectors.1

David Arthur Gearey was convicted of violating 50 U.S.C.App. § 462(a)2 because of his refusal to submit to induction as ordered by his Local Selective Service Board. On this appeal, his principal contention is that although his claim of conscientious objection was not raised prior to receiving a Notice to Report for Induction (SSS Form No. 252), he was nevertheless entitled to the procedural safeguards provided for those claiming to be conscientious objectors in section 6(j) of the Universal Military Training and Service Act, 50 U.S.C.App. § 456(j).

In October 1960, upon attaining the age of 18, Gearey registered with his local draft board as required by law. He did not at that time request a draft exemption as a conscientious objector. Subsequently, he was granted a student deferment (2-S) because of his attendance at St. Francis College in Brooklyn. In November 1964, he was reclassified 1-A (available for military service) when his Local Board learned that he was no longer enrolled as a college student, except for a three credit part-time course at the New School for Social Research. Gearey was ordered to report for preinduction physical examinations, and on January 4, 1965 he was notified of

368 F.2d 147
his acceptability for military service. The following day the Local Board voted not to reconsider Gearey's classification despite his claim that he planned to resume full-time studies in February. Notified of this decision, Gearey wrote to the Board in late January and requested a hearing to discuss his student status. This was granted, and on February 2, 1965 he appeared before the Board with evidence of attendance at a school for motion picture arts and a claim that he planned to re-register at St. Francis College. The Board reclassified Gearey 2-S and directed him to have St. Francis forward proof of his matriculation. The college, however, informed the Board in mid-February that Gearey was no longer a student, and when he failed to supply the Board with evidence of attendance, he was reclassified 1-A on April 6, 1965. An Order to Report for Induction was mailed on April 19, but four days later the Board received a letter from Gearey requesting that his classification be reviewed3 and that his date of induction be postponed from May 5 until the end of his spring term at school. The Board deferred his induction and rescheduled it for July. On May 24, Gearey for the first time asked the Local Board to send the special questionnaire for conscientious objectors (SSS Form No. 150). After the questionnaire was returned, the Board invited Gearey to appear for an interview on July 6, and at the same time notified him that the date of his induction was scheduled for July 8. Upon the conclusion of the July 6 hearing, the Board informed Gearey that it believed he was not a "genuine c. o." and that the facts did not warrant a change in his classification.4 Gearey reported for induction on July 8, 1965 but refused to take the symbolic step forward and was promptly arrested. At his trial before Judge Thomas F. Murphy, sitting without a jury, Gearey was adjudged guilty of failing to submit to induction into the armed forces, and was sentenced to imprisonment for two years

Early in our nation's history, the government recognized the moral conflict which confronted the members of certain religious sects when they were called to bear arms. Originally, the states were principally in control of conscription, and soon established a pattern of exempting conscientious objectors.5 When the federal government took control of conscription

368 F.2d 148
during the Civil War, this practice was continued.6 Selective Service System Monograph No. 10, Conscientious Objection 39-41 (1950). During the First World War, the Draft Act of 1917, 40 Stat. 76, 78, required all eligible persons to serve in the armed forces, but permitted conscientious objectors to perform noncombatant duties. Id. at 54-55. A somewhat similar pattern was adopted by Congress in 1940 in the Selective Training and Service Act, 54 Stat. 889, and again in 1948 when the present draft law, the Universal Military Training and Service Act, was passed. Section 6(j) of the UMT&S Act, 50 U.S.C.App. § 456(j), provides that
Nothing contained in this title * * shall be construed to require that any person 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. * * * Any person claiming exemption from combatant training and service because of such conscientious objections shall, if such claim is not sustained by the local board, be entitled to an appeal to the appropriate appeal board. Upon the filing of such appeal, the appeal board shall refer any such claim to the Department of Justice for inquiry and hearing. The Department of Justice, after appropriate inquiry, shall hold a hearing with respect to the character and good faith of the objections of the person concerned and such person shall be notified of the time and place of such hearing. * * * If after such hearing the Department of Justice finds that his objections are not sustained, it shall recommend to the appeal board that such objections be not sustained. The appeal board shall, in making its decision, give consideration to, but shall not be bound to follow, the recommendation of the Department of Justice together with the record on appeal from the local board.

The obvious purpose of the statutory scheme which provides for intervention by the Justice Department into the Selective Service appeal procedure, is to furnish a fount of information concerning an appellant's conscientious objection claim to the Appeal Board, so that a careful and enlightened decision can be reached. The Department's recommendation is based not only on the hearing which it conducts, but also on the report it receives from the FBI concerning the accuracy and sincerity of the applicant's claim. The Justice Department's role in the appeal procedure serves another purpose. It introduces into the inquiry a government agency less intimately associated with the armed forces than the Selective Service System, and not as concerned with meeting fixed quota calls. As a result, a more objective and disinterested approach to granting exemptions can be expected. While it is true that the Department's recommendation is not binding on an Appeal Board, it is unquestionably a significant factor not only in the Board's final determination, but also in any decision that the President may ultimately reach if the case is referred to him.7

368 F.2d 149

Gearey vigorously urges on this appeal that he was improperly denied the procedural safeguards in Section 6(j) for taking an appeal from the Local Board's determination that he was not a "genuine c. o." The denial by the Local Board was based upon its interpretation of 32 C.F.R. § 1625.28 which provides:

The local board may reopen and reclassify anew the classification of the registrant * * * 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 * * * unless the local board first specifically finds there has been a change in registrant\'s status resulting from circumstances over which the registrant had no control. 32 C.F.R. § 1625.2 (emphasis added).

The statutory authorization for this regulation is found...

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127 practice notes
  • Quillien v. Leeke, Civ. A. No. 69-475.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • 5 Septiembre 1969
    ...is always a factor to be considered in assessing the genuineness of a claim. See, for instance, United States v. Gearey (C.C.A.N.Y.1966) 368 F.2d 144, 149-150, cert. denied 389 U.S. 959, 88 S.Ct. 335, 19 L.Ed.2d 15 See, United States ex rel. McClintic v. Rundle (D.C.Pa.1964) 237 F.Supp. 207......
  • United States v. Jenkins, No. 79
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 11 Diciembre 1973
    ...conscientious objection claim was a valid defense to the criminal charge under this court's decision in United States v. Geary, 368 F.2d 144 (2d Cir. 1966), which Ehlert disapproved, 402 U. S. at 101 n. 3, 91 S.Ct. 1319, 28 L.Ed.2d 625. The Government contends that this ruling is contrary t......
  • Hammond v. Lenfest, No. 461
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 10 Junio 1968
    ...recently have had occasion to review the history of the special treatment afforded conscientious objectors, see United States v. Gearey, 368 F.2d 144 (2d Cir. 1966). For our purposes it is sufficient to note that commencing as early as 1661 — in the Colony of Massachusetts — and continuing ......
  • United States v. Cummins, No. 19670.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 26 Mayo 1970
    ...and the Appeal Board could again consider the case and make the classification. Cf. Gearey 1, United 425 F.2d 660 States v. Gearey, 368 F.2d 144 (2nd Cir. 1966).32 CFR 1626.25 was eliminated by the Military Selective Service Act of 1967. United States v. Owen, 415 F.2d 383, 387, n. 6 (8th C......
  • Request a trial to view additional results
127 cases
  • Quillien v. Leeke, Civ. A. No. 69-475.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • 5 Septiembre 1969
    ...is always a factor to be considered in assessing the genuineness of a claim. See, for instance, United States v. Gearey (C.C.A.N.Y.1966) 368 F.2d 144, 149-150, cert. denied 389 U.S. 959, 88 S.Ct. 335, 19 L.Ed.2d 15 See, United States ex rel. McClintic v. Rundle (D.C.Pa.1964) 237 F.Supp. 207......
  • United States v. Jenkins, No. 79
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 11 Diciembre 1973
    ...conscientious objection claim was a valid defense to the criminal charge under this court's decision in United States v. Geary, 368 F.2d 144 (2d Cir. 1966), which Ehlert disapproved, 402 U. S. at 101 n. 3, 91 S.Ct. 1319, 28 L.Ed.2d 625. The Government contends that this ruling is contrary t......
  • Hammond v. Lenfest, No. 461
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 10 Junio 1968
    ...recently have had occasion to review the history of the special treatment afforded conscientious objectors, see United States v. Gearey, 368 F.2d 144 (2d Cir. 1966). For our purposes it is sufficient to note that commencing as early as 1661 — in the Colony of Massachusetts — and continuing ......
  • United States v. Cummins, No. 19670.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 26 Mayo 1970
    ...and the Appeal Board could again consider the case and make the classification. Cf. Gearey 1, United 425 F.2d 660 States v. Gearey, 368 F.2d 144 (2nd Cir. 1966).32 CFR 1626.25 was eliminated by the Military Selective Service Act of 1967. United States v. Owen, 415 F.2d 383, 387, n. 6 (8th C......
  • Request a trial to view additional results

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