United States v. Newton, 25630.

• Decision Date: 15 December 1970
• Docket Number: No. 25630.,25630.
• Citation: 435 F.2d 671
• Parties: UNITED STATES of America, Appellee, v. Roger Grant NEWTON, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

435 F.2d 671 (1970)

UNITED STATES of America, Appellee, v. Roger Grant NEWTON, Appellant.

No. 25630.

United States Court of Appeals, Ninth Circuit.

December 15, 1970.

J. B. Tietz (argued), Los Angeles, Cal., for appellant.

Tom Kotoske (argued), Asst U. S. Atty., Robert L. Meyer, U. S. Atty., Los Angeles, Cal., for appellee.

Before BARNES, DUNIWAY and WRIGHT, Circuit Judges.

BARNES, Circuit Judge:

Roger G. Newton, classified I-A-O by his local Board, was ordered to report for duty in the military as a noncombatant. He refused and was convicted for violation of the Universal Military Training and Service Act (50 U.S.C. App. § 462). On appeal he challenges the validity of his classification. We reverse.

Appellant was initially classified I-A-O by his local Board because of his conscientious objector beliefs and because he indicated he was willing to serve in noncombatant lines. Newton enrolled in college and received a II-S (Student) deferment. Upon leaving school he was classified I-A. He returned to school and was reclassified I-S.

Newton then notified the Board that he was now opposed to military service in any form. The Board considered appellant's new conscientious objector request and then classified him I-A. Newton appealed. His file was referred to the Justice Department for recommendation. After a personal appearance before the hearing officer, the Justice Department, following the conclusions of the officer, suggested that Newton was sincere as to his conscientious objection to combatant military participation but was not sincere as to his opposition to noncombatant military service. The Justice Department recommended that Newton be classified I-A-O. Appellant was so classified by the Board on April 25, 1968. Newton requested a personal appearance before the local Board to explain his beliefs and present new evidence. Four successive dates were arranged by the Board, but Newton was unable to attend any of the four for various reasons. He was ordered to report for noncombatant duty on November 12, 1968.

In determining the validity of Newton's classification, we follow the narrow standard of whether there is a basis in fact for the classification the Board assigned to Newton (Witmer v. United States, 1955, 348 U.S. 375, 75 S.Ct. 392, 99 L.Ed. 428). The letter of recommendation from the Justice Department to the Board set forth two grounds to support the classification. One, that Newton's conscientious objections to military service in any form are not based on his religious training and belief. Two, that Newton's conscientious objector beliefs as to noncombatant service are not sincerely held. We find that neither ground is sufficient to provide a basis in fact for Newton's I-A-O classification.

There is no question that Newton holds strong religious convictions regarding combatant military duty. The Board recognized this fact and classified Newton I-A-O. However, upon recommendation of the Justice Department, based upon its hearing officer's report, the Board concluded that Newton's objections to noncombatant service were not based upon religious teachings but were founded upon political and sociological beliefs. Newton's statements to the hearing officer are summarized in the Justice Department letter to the Board. Quoting from the letter:

"Newton advised that, prior to January, 1966, he believed that he could serve in the Armed Forces in a noncombatant capacity, but, after that date, had determined that he could not, in good conscience, even serve in a noncombatant status. He advised that his reasons for the change were personal beliefs which now prevent him from being a noncombatant. He advised that, if he were filling out an IBM card in the army, he would, in fact, be helping pull the trigger and take a life for economic or political gain. He said that he is opposed to killing under any circumstances, and to the use of force under any circumstances, and that this belief is based on religious teachings. The Hearing Officer concluded that the registrant is sincere in his objection to combatant military training and service; that the registrant\'s conscientious objections are based upon his religious training and belief; and that the registrant is not conscientiously opposed to noncombatant military training and service, in that this opposition to such service is based upon political and sociological beliefs only." F. 116¹

The statements made by Newton do not support the conclusions drawn by the Department or its hearing officer. Nor is the conclusion of the Justice Department supported by the registrant's statements on his SSS Form 150. In it, Newton stated that among other things he had received his training and acquired his beliefs in the Seventh Day Adventist Church; through reading the Bible, the handbook for conscientious objectors, and the army field manual; from attending meetings sponsored by the American Friends Service Committee; and from reading material on and a discussion of reasons for the United States' policy with fellow students.

The sole reason given by the Justice Department to support its conclusion regarding the basis of Newton's beliefs is found in the letter to the Board.

"The registrant stated, at the hearing, that the basis for the extension of his claim to include an objection to noncombatant military training and service were sic his personal beliefs. These

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