United States v. Jennison, 18147.

• Decision Date: 10 March 1969
• Docket Number: No. 18147.,18147.
• Citation: 402 F.2d 51
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Watson Woodson JENNISON, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

402 F.2d 51 (1968)

UNITED STATES of America, Plaintiff-Appellee, v. Watson Woodson JENNISON, Jr., Defendant-Appellant.

No. 18147.

United States Court of Appeals Sixth Circuit.

October 21, 1968.

Certiorari Denied March 10, 1969.

Victor Rabinowitz, New York City, Leonard B. Boudin, New York City, on brief; Dorian Bowman, New York City, of counsel, for appellant.

James F. Cook, Asst. U. S. Atty., Lexington, Ky., George I. Cline, U. S. Atty., Lexington, Ky., on brief for appellee.

Before O'SULLIVAN, PHILLIPS and McCREE, Circuit Judges.

Certiorari Denied March 10, 1969. See 89 S.Ct. 1024.

O'SULLIVAN, Circuit Judge.

We here consider the appeal of Watson Woodson Jennison, Jr., from his conviction, upon jury trial, of refusing to submit to induction into the Armed Forces of the United States, in violation of 50 U.S.C.App. § 462. Appellant contends that his conviction was unlawful because his local draft board had refused to give proper consideration to his claim of entitlement to a classification of conscientious objector.

Appellant was registered with Local Board No. 2 in Huntington, West Virginia. He was classified II-S (student) in December, 1961, and re-classified I-A (available for military service) in December, 1963. On February 14, 1966, the board ordered him to report for induction on March 14, 1966. On March 2, 1966, the board received a letter from appellant stating that "I believe I now qualify under the Selective Service Act for alternative civilian service." He requested that his classification be reconsidered and that he be granted a rehearing, and he asked for permission to file Selective Service Form No. 150 (application for conscientious objector classification). This was the first time he had informed the board of his conscientious objector beliefs. The board sent appellant the requested form and sent his file to the State Director for a ruling. Upon receipt of the Director's recommendation that the classification not be reopened, the board informed appellant on March 7 that the induction order remained in effect. The board received appellant's completed Form 150 on March 9, and on that date again informed him that his classification would not be reopened. Also on March 9, appellant wrote the State Director requesting a reopening of his classification and a hearing, but the Deputy State Director informed him on March 11, that his classification could not be reopened. On March 14, appellant appeared at the induction center at Ashland, Kentucky and refused to submit to induction.

We affirm the district court for two reasons. First, this court's decision in United States v. Taylor, 351 F.2d 228 (6th Cir. 1965) adopted the rule that a draft board is not required to consider a claim of conscientious objection first asserted after notice of induction has been received, even if a conversion to conscientious objection has allegedly matured after receipt of such notice. Second, the presentations made by appellant after his receipt of notice of induction were not such as to require the Selective Service authorities to find that, in such period, there had occurred a change in his status resulting from circumstances "over which the registrant appellant had no control."

Appellant's request was based upon Section 6(j) of the Military Selective Service Act of 1967, 50 U.S.C.App. § 456 (j), which provides in part as follows:

"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."

The State Director's recommendation, which was followed by the local board, and the board's determination subsequent to the receipt of Form 150, were based upon a Selective Service Regulation, 32 C.F.R. § 1625.2, which reads in part as follows:

"The local board may reopen and reclassify anew the classification of the registrant * * * if such request is accompanied by written information presenting facts not considered when the registrant was classified, which, if true, would justify a change in the registrant\'s classification; * * * 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 the registrant\'s status resulting from circumstances over which the registrant had no control." (Emphasis supplied.)

1. The rule of United States v. Taylor.

This court's decision in Taylor, supra, sustained the validity of Regulation 1625.2 and ruled it was within the power of the draft board to employ it to foreclose precisely what was done in this case, namely, an assertion after several years of deferments that conversion took place a few days after receipt of notice of induction.

This court said in Taylor:

"Generally, religious convictions of the nature of conscientious objection `to participation in war in any form\' arise from deep and abiding beliefs held for a long period of time. Their assertion in the immediate aftermath of an induction notice would be no more persuasive than notice of such would be at a port of departure or on the eve of battle. * * *

"It seems reasonable to this court (and in accord with the great weight of authority) for regulations of the selective service system to provide that a claim of conscientious objector status must be made before the individual concerned has been notified to report for induction." 351 F.2d at 230.

And as the Tenth Circuit has pointed out in Keene v. United States, 266 F.2d 378 (10th Cir. 1959):

"It does not seem unreasonable or derogatory to the spirit and purpose of the exempting statute to provide by regulation that no request for reopening and reclassification shall be entertained after notice to report for induction is mailed. Otherwise, the whole machinery of the selective service process may conceivably be disrupted by last minute changes in status for purposes of avoidance. Such is the manifest purpose of the proviso in Regulation 1625.2." 266 F.2d at 393.

This position is the same as that announced in United States v. Beaver, 309 F.2d 273 (4th Cir. 1962); Parrott v. United States, 370 F.2d 388 (9th Cir. 1966); Davis v. United States, 374 F.2d 1 (5th Cir. 1967).

Appellant relies heavily upon the argument that the adoption or crystallization of his conscientious objection after receipt of notice of induction constituted a circumstance "over which the registrant had no control," and thus both the statute and regulation require the local board to give consideration to the registrant's request for conscientious objector status no matter when it was filed. Appellant finds authority for this argument in United States v. Gearey, 368 F. 2d 144 (2d Cir. 1966), cert. denied, 389 U.S. 959, 88 S.Ct. 335, 19 L.Ed.2d 368 (1967), rehearing denied, 389 U.S. 1010, 88 S.Ct. 561, 19 L.Ed.2d 611 (1967), but in no other Court of Appeals decision.

Several cases, in fact, specifically reject appellant's argument. The Fifth Circuit in Davis, supra, said, "Belated development of conscientious objection is not a change in status beyond the control of registrant." 374 F.2d at 4. An interpretation of the regulation that maturing of conscientious objection was a change in status beyond the registrant's control would be "a strained interpretation of the regulation." United States v. Schoebel, 201 F.2d 31, 33 (7th Cir. 1953). Such a reading "would make redundant and useless any finding by the Board subsequent to the filing of the conscientious objector's claim." Boyd v. United States, 269 F.2d 607, 610 (9th Cir. 1959). Distinction of Taylor from the case at bar is asserted on the ground that Taylor had become a conscientious objector prior to his receipt of notice of induction.¹ We, however, do not read Taylor as giving any significance to such circumstance in arriving at the rule it announces.

2. Time of appellant's conversion.

The board was justified in holding that appellant's evidence did not disclose a change in circumstances beyond his control. His letter to the board in which he disclosed his conscientious objector status read, in part:

"For the past two years, ever since approximately my twenty-fourth birthday, I have been studying the basis of religious conscientious objection to war, and I believe I now qualify under the Selective Service Act for alternative civilian service contributing to the maintenance of the national health, safety or interest." (Emphasis supplied.)

The language, "I believe I now qualify," does not convey an impression of sudden crystallization or conversion. In addition, appellant's completed Form 150 revealed to the board that he had been a pacifist for many years and while in college had objected to serving in an ROTC unit, the objection apparently prompted by conscientious objection to war.

It appears that appellant's beliefs likely had matured prior to receipt of his induction notice, and under these circumstances every Circuit having faced the question has held that classification cannot be reopened. Even the Second Circuit in Gearey said, "The Local Board must first determine when an applicant's beliefs matured. If the Board properly concludes that the claim existed before the notice was sent, the classification may not be reopened." 368 F.2d at 150.

The granting of exemptions to draftees is a matter of grace and the burden is upon the person seeking exemption to establish his right thereto. All factual questions are for the board and its decisions are final. Dickinson v. United States, 346 U.S. 389, 395, 401, 74 S.Ct. 152, 98 L.Ed. 132 (1953).

We are satisfied that the board made a reasonable and proper finding that appellant's evidence did not meet his burden of showing that his crystallization of conscientious objection occurred after receipt of his...