United States v. Hartman, 85

• Decision Date: 08 January 1954
• Docket Number: No. 85,Docket 22821.,85
• Citation: 209 F.2d 366
• Parties: UNITED STATES v. HARTMAN.
• Court: U.S. Court of Appeals — Second Circuit

209 F.2d 366 (1954)

UNITED STATES v. HARTMAN.

No. 85, Docket 22821.

United States Court of Appeals Second Circuit.

Argued December 8, 1953.

Decided January 8, 1954.

Hayden C. Covington, Brooklyn, N. Y., Clyde W. Summers, Buffalo, N. Y., on the brief, for appellant.

John O. Henderson, U. S. Atty., Buffalo, N. Y., Richard E. Moot, Asst. U. S. Atty., Buffalo, N. Y., of counsel, for appellee.

Before CHASE, Chief Judge, and AUGUSTUS N. HAND and MEDINA, Circuit Judges.

MEDINA, Circuit Judge.

Appellant was indicted for refusing to submit to induction into the Armed Forces of the United States in violation of 50 U.S.C.A.Appendix, § 462(a). Appellant pleaded not guilty, and was tried before Judge Knight and a jury. The jury returned a verdict of guilty. The appeal is from the judgment of conviction and sentencing which was entered upon the verdict.

Appellant properly filled out his "Classification Questionnaire" (SSS Form No. 100) and returned it to his local board. He stated therein that he was a minister of Jehovah's Witnesses, and that he had been formally ordained on March 26, 1950, at Dunkirk, New York. He requested that he be classified in Class IV-D, claiming exemption as a duly ordained minister of religion under Section 6(g) of Title I of the Selective Service Act of 1948.¹ In addition to his request for exemption as a minister, he stated in the questionnaire that, by reason of religious training and belief, he was conscientiously opposed to participation in war in any form, and requested the local board to furnish him with a conscientious objector form.

Thereupon, the local board mailed to appellant a "Special Form for Conscientious Objector" (SSS Form No. 150), which he filled out and returned. Appellant stated therein that, by reason of his religious training and belief, he was conscientiously opposed to participation in war in any form, and that he was further conscientiously opposed to participation in noncombatant training or service in the armed forces. He requested that he be classified in Class IV-E,² claiming complete exemption under Section 6(j) of Title I of the Selective Service Act of 1948 and Section 1622.20(a) of the Selective Service Regulations,³ as a conscientious objector opposed to participation in both combatant and noncombatant training and service in the armed forces.

Appellant was notified to appear before the local board, and a hearing was held on January 9, 1951. On that date, the local board denied appellant's claim for exemption as a duly ordained minister and classified him I-A-O. This classification made him liable for military training and service as a noncombatant. On January 15, 1951, and again on February 5, 1951, appellant wrote to the local board stating that he desired to appeal the I-A-O classification.

On January 31, 1951, the local board forwarded appellant's file to the district appeal board. Thereafter, on February 16, 1951, the appeal board referred the case to the Department of Justice for an inquiry and hearing and for a recommendation by the Department. Following an investigation by agents of the Federal Bureau of Investigation, a hearing was held on May 8, 1951, at Buffalo, New York, by William Palmer, a hearing officer for the Western District of New York, at which appellant appeared in person accompanied by one Max M. Mueller, a friend and fellow Jehovah's Witness who later testified on his behalf at the trial. After hearing the appellant and considering the report of the Federal Bureau of Investigation, the hearing officer concluded that the facts and circumstances presented by appellant failed to support his appeal from the action of the local board in classifying him I-A-O. He upheld the action of the local board in classifying appellant as a conscientious objector opposed to combatant military service, and he recommended that the appeal of appellant "from the action of the local board be denied and that his classification by the local board be ratified and approved." This report and recommendation of the hearing officer was concurred in by the Deputy Attorney General.

Thereafter, on August 16, 1951, the appeal board placed appellant in Class I-A-O. This classification again denied appellant the status of a full conscientious objector and made him liable for military service in a noncombatant capacity. On September 5, 1951, appellant wrote a letter to the local board wherein he stated:

"Upon receiving my I A O classification from the Board of Appeal dated August 27, 1951, I want to reappeal this classification.

"As a regular and ordained minister of Jehovah\'s Witnesses, I feel that the I A O classification I received is unjust. I have been denied the 4D-minister, and in applying for the 4E-conscientious objector I was again refused. I have supplied sufficient proof in writing and in personal appearances to justify my claim."

He made the same written complaint to the State Director of Selective Service in Albany and to Selective Service Headquarters in Washington.

On November 19, 1951, the National Director of Selective Service took an appeal to the President from the action of the appeal board in placing appellant in Class I-A-O. On February 15, 1952, the National Selective Service Appeal Board placed appellant in Class I-A. This classification not only denied appellant's claim for exemption as a duly ordained minister, but it also denied him any and all status as a conscientious objector and made him liable for unlimited military service. Thereafter, appellant was duly ordered to report for induction, with the result already above stated.

We are concerned here only with the classification of I-A which was finally given appellant by the National Selective Service Appeal Board. The preceding classifications are not in issue. Reed v. United States, 9 Cir., 205 F.2d 216; Tyrrell v. United States, 9 Cir., 200 F.2d 8.

The decisive question before us is narrowly defined. Appellant contends that the I-A classification was arbitrary and capricious and without basis in fact. If not arbitrary and capricious, then the determination that he was not entitled to exemption is final. 50 U.S.C.A.Appendix, § 460(b) (3); Estep v. United States, 1946, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567; Dickinson v. United States, 1953, 74 S.Ct. 152.

In 50 U.S.C.A.Appendix, § 460 (b) (3) Congress made provision for the review of the actions of the local boards and the appeal agencies. This section provides that "* * * The decisions of such local board shall be final, except where an appeal is authorized and is taken in accordance with such rules and regulations as the President may prescribe. * * * The decision of such appeal boards shall be final in cases before them on appeal unless modified or changed by the President. The President, upon appeal or upon his own motion, shall have power to determine all claims or questions with respect to inclusion for, or exemption or deferment from training and service under this title, and the determination of the President shall be final. * * *" In Estep v. United States, supra 327 U.S. 114, 66 S.Ct. 427, the Supreme Court construed the word "final," as used in this connection, to mean "that Congress chose not to give administrative action under this Act the customary scope of judicial review which obtains under other statutes. It means that the courts are not to weigh the evidence to determine whether the classification made by the local boards was justified. The decisions of the local boards made in conformity with the regulations are final even though they may be erroneous. The question of jurisdiction of the local board is reached only if there is no basis in fact for the classification which it gave the registrant." It is in the light of this ruling that we must examine the record. If, therefore, there is no basis in fact to support the classification of I-A which the National Selective Service Appeal Board finally gave appellant, jurisdiction was lacking and its order of classification was a nullity.

Section 6(j) of Title I of the Selective Service Act of 1948⁴ provides:

"Nothing contained in this title 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. Religious training and belief in this connection means an individual\'s belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but does not include essentially political, sociological, or philosophical views or a merely personal moral code."

The burden was on appellant to show clearly that he was within the exemption which he claimed, but no more than that. United States v. Bender, 3 Cir., 206 F.2d 247. The undisputed evidence shows that appellant is a bona fide member of the religious sect known as Jehovah's Witnesses and that he is "by reason of religious training and belief, * * * conscientiously opposed to participation...