United States v. Schmidt

• Decision Date: 03 June 1970
• Docket Number: No. 4-70 Cr. 17.,4-70 Cr. 17.
• Citation: 313 F. Supp. 456
• Parties: UNITED STATES of America, Plaintiff, v. Claude David SCHMIDT, Defendant.
• Court: U.S. District Court — District of Minnesota

313 F. Supp. 456

UNITED STATES of America, Plaintiff, v. Claude David SCHMIDT, Defendant.

No. 4-70 Cr. 17.

United States District Court, D. Minnesota, Fourth Division.

June 3, 1970.

Robert G. Renner, U. S. Atty., by Peter J. Thompson, Asst. U. S. Atty., Minneapolis, Minn., for plaintiff.

Larry B. Leventhal, Minneapolis, Minn., for defendant.

MEMORANDUM DECISION

MILES W. LORD, District Judge.

By an indictment filed on January 19, 1970, the federal grand jury charged the defendant with violation of 50 U.S.C. App. § 462; that is, that he did knowingly and wilfully refuse to report for and submit to induction in the Armed Forces of the United States as ordered by his Local Selective Service Board. The matter is presently before the Court on a motion by defendant to quash and dismiss the indictment.

A review of the defendant's Selective Service file reveals the following chronology of events leading up to the indictment. Defendant first registered with the Selective Service on August 5, 1966. After receiving two II-S classifications (student deferment), defendant was classified I-A (available for military service) on December 3, 1968, and notice of said classification and advising him of his right of a personal appearance or an appeal was mailed to him on December 5, 1968. Defendant did not appeal from his I-A classification nor did he make any claim regarding a conscientious objector status. Thereafter, on April 11, 1969, Local Board No. 49 sent defendant his Order to Report for Induction (SSS Form 252), ordering him to report for induction on April 29, 1969. Defendant reported to the induction station on April 29, but twice refused to take the symbolic step forward signifying induction. He informed the officials at the induction station that he considered himself a conscientious objector. After explaining to him the possible consequences of his refusal to submit to induction, the officials allowed the defendant to leave.

On May 7, 1969, pursuant to defendant's request, he was provided with Form 150 (Special Form for Conscientious Objector). He completed this form and returned it to the Local Board on May 9, 1969. In his Form 150, defendant set out at some length the reasons why he should be considered a conscientious objector. He stated that his claim was based on religious training and belief which he acquired from his church and family. He therein acknowledges his belief in a Supreme Being by stating:

The nature of my claim stems from being raised in the Presbyterian Church. I was taught a belief in God. In order to live my life correctly with this belief I must obey the will of God and act in accordance with his teachings. God has commanded me that I shall not kill. God says that I must love my enemies, not seek reprisals against him. Before I can consider anything else I must consider my relationship with God. Therefore, I believe that on this earth life is the most precious thing and only God has the right to decide who shall live and die. Because of my belief in God's teachings I am opposed to participation in any war of any form. To participate in war would be a direct violation of the teachings of God.

To support his claim, defendant additionally submitted a letter from his Minister and letters from several friends attesting to his beliefs and sincerity.

By letter dated May 22, 1969, from the office of the State Director, Selective Service System, it was recommended to the Local Board that the defendant be invited for a courtesy interview to discuss his claim as a conscientious objector. The letter advised the local board that they were to review the defendant's entire file, including his Form 150, to "specifically determine if there has been a change in status resulting from circumstances over which the registrant had no control". (Emphasis original.)

Pursuant to this recommendation, the Local Board notified the defendant by letter dated May 26, 1969, that they wished to have him appear for an interview regarding his conscientious objector claim on June 3, 1969. Defendant met with the Board on that date and the action of the Board at the appearance is set forth in Item No. 23 of the file, which reads as follows:

Registrant appeared before the board for a courtesy interview in regard to his claim as conscientious objector on June 3, 1969.

Registrant was asked why he refused to submit to induction on April 29, 1969 as ordered. Registrant stated that he has a military tradition in his family and he had many pressures to go into the service. He said that for his father's sake he tried but once he was at the Induction Station he just couldn't go through with swearing in. He stated that he is a C.O. and he just had to put his family's feelings aside and do what he feels is right. He stated he would go to prison if that was the only way he could keep out of the service. He stated that he has talked many times to his pastor regarding his claims as C.O. but that the decision had to be made by himself. He stated that he believed in God and that he could never take anyone's life as they are part of God.

The Board considered the information they received and asked the registrant to appear before the board at their next meeting.

A further notation was made regarding this meeting on the Cover sheet of the "Minutes of Local Board Meeting" for June 3, 1969, as follows:

* * * (R)egistrant appeared as requested at 9:30 P.M. for a conscientious objector interview. Registrant stated why he failed to submit for induction. He also stated his feeling and beliefs in regard to his claim as C.O. Board did not take action at this meeting pending further information and interview with registrant.

Following this interview, defendant submitted a letter to the Board briefly explaining his beliefs and that he felt entry into the armed services would be violating the teachings of God. He stated that he was willing to perform his duty in a civilian position that was acceptable to the Board. The Board received several other letters at this time from friends of the defendant attesting to his beliefs and sincerity.

By letter dated July 7, 1969, the Local Board informed the defendant that they wished to see him on July 15, 1969. As a result of this meeting, the Board made the following notation on the Cover Sheet of the "Minutes of Local Board Meeting" for July 15, 1969:

(Registrant) appeared before the board for a courtesy interview at 7:45 P.M. Registrant explained his feelings and beliefs of his Conscientious Objector claim. Board did not reopen Classification.

The Board advised the defendant by letter on July 17, 1969, that they had determined that the facts in his file did not warrant reopening his classification. The Board also made an entry on the defendant's classification sheet that they had "considered all evidence and determined there was no change in circumstances beyond the registrant's control, classification not reopened."

Thereafter, by letter dated July 30, 1969, defendant was ordered to report for induction on August 19, 1969. Defendant wrote to the State Headquarters of the Selective Service System seeking their intervention. The State Headquarters replied by stating that they had reviewed his file and that they concurred in the determination of the Local Board. Defendant appeared at the induction center on August 19, 1969, but again refused to submit to induction. Subsequently, defendant's file was turned over to the United States Attorney and it was requested that he take the appropriate action. The indictment under attack in this Motion followed.

Defendant's motion raises various arguments claiming that the action taken by the Board was arbitrary and constituted a denial of procedural due process. The Court believes that only two of the arguments require discussion.¹

Defendant's first argument is that under 32 C.F.R. § 1625.2, if a registrant makes a prima facie showing that he is entitled to reclassification the Board must reopen his classification. He claims that he made such a showing for a conscientious objector classification and thus the refusal of the Board to so reclassify him was without basis in fact, arbitrary, and contrary to law. Under the Selective Service Regulations, the effect of such a reopening is to cancel any Order to Report for Induction previously issued to him, 32 C.F.R. § 1625.14, and to afford him the same right of personal appearance and the same right of appeal as in the case of an original classification, 32 C.F.R. § 1625.13. Defendant contends that since the arbitrary action of the Board denied him these significant rights, he has been denied procedural due process.

The Regulation defendant relies on for this argument, 32 C.F.R. § 1625.2, provides as follows:

The local board may reopen and consider anew the classification of a registrant (a) upon the written request 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 that there has been a change in the registrant's status resulting from circumstances over which the registrant has no control.

The above Regulation is quite explicit in delineating the respective responsibilities of the Local Board and the registrant depending upon the time at which the registrant presents his request for reclassification. Under the first part of the Section, if the registrant requests reclassification prior to the date he has been ordered to report for induction, he has the burden of providing facts not considered by the Board in granting the original classification and which, if true, would justify a change in his classification. 32 C.F.R. §§ 1625.2 an...