United States v. Rutherford, 20137.

• Decision Date: 03 February 1971
• Docket Number: No. 20137.,20137.
• Parties: UNITED STATES of America, Appellee, v. Jerry Charles RUTHERFORD, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

437 F.2d 182 (1971)

UNITED STATES of America, Appellee, v. Jerry Charles RUTHERFORD, Appellant.

No. 20137.

United States Court of Appeals, Eighth Circuit.

February 3, 1971.

Harry B. Reese, Kansas City, Kan., for appellant.

Richard J. Barry, Asst. U. S. Atty., S. D. Iowa, Allen J. Donielson, U. S. Atty., S. D. Iowa, for appellee.

Before VAN OOSTERHOUT and BRIGHT, Circuit Judges, and NEVILLE, District Judge.

NEVILLE, District Judge.

Defendant was indicted under 50 App. U.S.C. § 462(a) for failure to report for and submit to induction into the Armed Services of the United States. A jury returned a guilty verdict and his subsequent motion for judgment of acquittal was denied. We reverse the conviction on the grounds that there was and is no basis in fact disclosed in defendant's Selective Service file to warrant a denial of his prima facie showing of entitlement to a conscientious objector status.

On May 13, 1968, substantially four years after his original registration under the Military Selective Service Act Rutherford requested conscientious objector status by filing a completed SSS Form #150 with his Local Board. After reopening his classification the Board denied his claim. Appeals to the State Appeal Board and to the Presidential Board were unsuccessful. None of these bodies made findings or indicated with any specificity why Rutherford's application was denied.¹

Since the registrant's application established a prima facie case for conscientious objector status under 50 U.S.C. App. § 456(j) and its current judicial construction,² it is clear — and the United States Attorney so agrees — that denial was based and could only have been based upon a conclusion that the registrant's claim was insincere.

50 U.S.C. App. § 460 allows judicial review of Selective Service action to assure the registrant that administrative decisions affecting his classification have some basis in fact. The Eighth Circuit has consistently recognized that this is a very narrow standard of review,³ and the Court's role in a case such as this is limited to determining as a matter of law whether a Selective Service Board could infer insincerity from the evidence properly before it⁴ and disclosed in or made a part of the registrant's Selective Service file.

While insincerity may be established either by objective facts apparent from documents in the registrant's file which tend to indicate inconsistency or bad faith, or by subjective elements such as the demeanor of the registrant at personal appearance before the board, or by some combination of the two, it is settled law that a board finding turning on factors not apparent from an examination of the file will not survive judicial review in the absence of some specific written findings or notations to support it. As this court recently articulated this requirement:

"* * * A local board may find that an applicant lacks sincerity in his beliefs because his demeanor demonstrates a shiftiness or evasive attitude which would substantiate unreliability. Witmer v. United States, supra 348 U.S. at 382, 75 S.Ct. 392. However, this cannot serve as a basis-infact for an appeal board to reject a conscientious objector claim unless there exists some disclosure of this finding of unreliability by the local board on the applicant\'s selective service record."

United States v. Abbott, 425 F.2d 910, 913-914 (8th Cir. 1970). Since there are no such findings here, we can only sustain the denial of Rutherford's conscientious objector claim if we find some basis in fact for the conclusion of insincerity in the objective evidence in his Selective Service file. United States ex rel. Hemes v. McNulty, 432 F.2d 1182 (7th Cir. 1970).

The government contends that insincerity may be inferred from (1) Rutherford's failure to assert his claim when he originally registered at age 18, or (2) his failure to be baptized in the organized religion of Jehovah's Witnesses which he alleges to be the basis of his religious opposition to military service.

On or about July 6, 1964, upon reaching his eighteenth birthday, Rutherford completed his original Selective Service Questionnaire, SSS Form 100, which then included the following question:

"Series VIII. — CONSCIENTIOUS OBJECTOR (DO NOT SIGN THIS SERIES UNLESS YOU CLAIM EXEMPTION AS A CONSCIENTIOUS OBJECTOR)

By reason of religious training and belief I am conscientiously opposed to participation in war in any form and hereby request that the local board furnish me a Special Form for Conscientious Objector (SSS Form No. 150).

(Signature) "

He did not answer the above question, possibly anticipating his eligibility for a 2-S deferment upon entering the University of Kansas later that summer. In any event, for nearly four years, from October 1964 until June 1968, he held a 2-S deferment. In May 1968, apparently aware that his 2-S eligibility was about to lapse, Rutherford made application for conscientious objector status by submitting SSS Form 150 to his Local Board. In this Form he professed conscientious objector beliefs which matured or crystallized some years prior to the date of its filing.⁵ The government argues that his failure to bring this attitude to the attention of the Local Board in his original registration supports an inference of insincerity. In United States v. Bornemann, 424 F. 2d 1343 (2d Cir. 1970), the Second Circuit dealt at length with this issue:

"Section 465(b) of 50 App. U.S.C., the statute in force at all times during the period when Bornemann\'s classification was in question, provided that `it shall be the duty of every registrant to keep his local board informed as to * * * changes in status as required by such rules and regulations as may be prescribed by the President.\' The applicable regulation, 32 C.F.R. § 1625.1(b), requires that `each classified registrant * * * shall, within 10 days after it occurs, report to the local board in writing any fact that might result in the registrant being placed in a different classification * * *.\' In order to determine which facts `might result in the registrant being placed in a different classification,\' it is necessary to examine 32 C.F.R. § 1623.2. This regulation specifies `that when grounds are established to place a registrant in one or more of the classes listed in the following table which lists all classifications other than I-A (available for service), the registrant shall be classified in the lowest class for which he is determined to be eligible.\' * * * Since these two regulations are to be read in pari materia, we are compelled to conclude that the facts which `might result in the registrant being placed in a different classification\' and which each registrant must therefore bring to the attention of his board promptly are those which could result in his being placed in a lower classification. Any other construction would mean that already busy boards would be required to receive, record, consider and file reams of immaterial information having no bearing on the classification then held by a registrant, an intention the drafters of the regulations could scarcely have entertained." 424 F.2d at 1347.

The recent decision of this court in United States v. Abbott, 425 F.2d 910 (8th Cir. 1970), followed Bornemann and appears to dispose of this issue in the case at bar. In Abbott, a registrant first claimed conscientious objector status after he became ineligible for deferments as a college student (2-S) and as a minister (4-D). While the Selective Service file established that his claim matured subsequent to his original registration (so that failure to claim I-O status in response to the Series VIII Question was irrelevant) a subsequent classification questionnaire completed two years after original registration and apparently after the crystallization of his beliefs while in a seminary, included a blank in which the registrant was asked to indicate whether he claimed to be a conscientious objector. Abbott left that space blank.⁶ The court held that:

"* * * when a registrant makes application at the time when his beliefs become `relevant\' to his classification, then lateness of the claim cannot affect the registrant\'s sincerity. Abbott\'s earlier presentation of his conscientious objector\'s claim, like Bornemann\'s, would not have resulted in his being classified as a conscientious objector since he was entitled to a deferment on the basis of a lower classification on other grounds." 425 F.2d at 915.⁷

Our adherence in this Circuit to the Bornemann rule was also expressed in United States v. Cummins, 425 F.2d 646, 650 (8th Cir. 1970):

"* * * The fact that Cummins sought other classifications and did not originally seek a I-O classification cannot by itself be a basis for denial of such a classification. See United States v. Owen, 415 F.2d 383 (8 Cir. 1969); United States v. Bornemann, 424 F.2d 1343 (2 Cir. 1970)." 425 F. 2d at 650.

See also, United States v. Lemmens, 430 F.2d 619, 624 (7th Cir. 1970); Capobianco v. Laird, 424 F.2d 1304 (2nd Cir. 1970); United States ex rel. Hemes v. McNulty, supra, 432 F.2d at 1187.

Since the law does not require such an early assertion of a claim then not relevant, any number of considerations might logically enter into a registrant's decision not to claim the I-O on his original registration questionnaire. For some registrants, the stigma of conscientious objection or the difficulty of assembling the application may cause a sincere and logical reluctance to assert the claim when the regulations clearly preclude its being granted because lesser deferments are available. See, e.g., United States v. Broyles, 423 F.2d 1299, 1303 (4th Cir. 1970).

We must read Abbott, Cummins, and Bornemann to hold that a registrant need not assert his I-O claim on the original Form 100 Questionnaire when he is aware that he qualifies for a lesser deferment. It follows that a Board faced with a failure of a I-O applicant to have claimed...