United States v. Stafford, 261

• Decision Date: 29 January 1968
• Docket Number: No. 261,Docket 31839.,261
• Citation: 389 F.2d 215
• Parties: UNITED STATES of America, Appellee, v. John STAFFORD, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

389 F.2d 215 (1968)

UNITED STATES of America, Appellee, v. John STAFFORD, Appellant.

No. 261, Docket 31839.

United States Court of Appeals Second Circuit.

Argued January 5, 1968.

Decided January 29, 1968.

Herman Adlerstein, New York City, for appellant.

Michael Rosen, Asst. U. S. Atty. (Joseph P. Hoey, U. S. Atty., for the Eastern District of New York, Brooklyn, N. Y., Jerome C. Ditore, Asst. U. S. Atty., of counsel), for appellee.

Before MOORE, FRIENDLY and KAUFMAN, Circuit Judges.

MOORE, Circuit Judge:

In this case we are again¹ called upon to determine whether the claim of a purported conscientious objector has been given the consideration required by the Selective Service Act. Section 6(j) of the Selective Service Act, 50 U.S.C.App. § 456(j), provides in part:

"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."

There is no restriction in the Act itself on the time when this claim can be made — although it seems clear that it must be made before actual induction. Cf. Billings v. Truesdell, 321 U.S. 542, 64 S.Ct. 737, 88 L.Ed. 917 (1943) (military law applies after induction). However, this otherwise unqualified right to claim exemption from combatant training has been limited by regulation. 32 C.F.R. § 1652.2 provides in pertinent part:

"The local board may reopen and reclassify anew the classification of the registrant * * * provided * * the classification 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 registrant\'s status resulting from circumstances over which the registrant had no control."

This regulation has been upheld by this court as a reasonable limitation on the right to make a conscientious objector claim. United States v. Gearey, 368 F.2d at 149. The specific issue raised here is whether that regulation was correctly applied to the facts of this case.

Appellant registered with his Local Board in 1959 and was given a I-A (eligible for induction) classification. That classification was shortly changed to II-A (occupational deferment) which he effectively retained until September 7, 1966. On that date he was reclassified I-A and on September 19, 1966 appellant was ordered to report to the Fort Hamilton Induction Station on October 4, 1966 for induction into the armed forces. On October 4th, after initial processing at the Induction Center, appellant refused to submit to induction. Instead, he presented to the processing officer a letter signed by him which stated that he had a "deep moral conviction" which "has always been a deep part of me" against taking the life of another. He stated that he did not want to be responsible for another's death, and he offered to do "defense work" instead. This was the first indication of his conscientious objector views. Appellant had attempted to give this letter to his local board before proceeding to the Induction Center, but the office was closed at that hour of the morning.

The letter, handed by appellant to the induction officer, was never sent to the Local Board, but was instead forwarded to the United States Attorney's Office. The processing officer at the Induction Center notified someone in the Selective Service System, by telephone, that appellant had refused induction because he could not kill, but this claim was not presented in writing² and it is clear that his Local Board was not aware that he had made a written claim to conscientious objector status before he refused to go through with the actual induction ceremony and, therefore, it has not had an opportunity to consider the merits of such a claim.

After appellant had refused induction, he wrote to the Director of Selective Service for New York City, on October 18, 1966, requesting permission to file Form 150 for conscientious objectors. His letter (which was made part of his file) stated in part:

"It is perhaps an unfortunate way that I have that makes me act upon an issue only when I am directly confronted by them. sic When called for induction on October 4, 1966 I found my conscience compelling me to refuse to step forward and thus I did."

On October 24, 1966 the Director replied that further action on appellant's case must await the determination of the prosecuting United States Attorney, but that in the meantime appellant could obtain a Form 150 from his Local Board and have it included in his file. On November 25, 1966 appellant returned the completed form to the Local Board. It did not indicate when his beliefs matured.

Appellant also asked the Catholic Peace Fellowship to write his Local Board on his behalf. Its letter of November 22, 1966, asked the Board to reopen appellant's case and stated: "Mr. Stafford's objection, he tells us, is of long standing. He was simply unaware of his rights and therefore failed to act upon them." Finally, after being informed by the United States Attorney that he had filed his claim too late, appellant wrote to his Board on December 27, 1966, stating that he realized that it was his fault for not having filled out the proper form at the proper time, and requesting the Board to reconsider his case and give him a I-A-O or noncombatant classification. This disposition apparently would have satisfied the United States Attorney. The Board replied by letter of January 12, 1967 that "the Local Board has considered your case and has determined that it is unable to reopen your case." The Board's minutes for January 4, 1967 state:

                Vote
                                                                                    Yes      No
                  "Local board is unable to reopen case because it finds
                    there has been no change of status of the registrant
                    resulting from circumstances over which the
                    registrant had no control (as per selective service regulation
                    1625.2)"
                    LTT VE HED                                                        3       0
                  "Registrant's letter received Dec. 27, 1966, has been
                    noted wherein he indicates his own irresponsibility
                    of not having filled out the form at the proper time."
                    LTT VE HED                                                        3       0
                

This court has held that a conscientious objector claim can "mature" or "crystallize" after a registrant has received his Notice to Report for Induction, and that this may be a change in circumstances over which the registrant has no control within the meaning of regulation § 1652.2. United States v. Gearey, supra. In that case Gearey, after receiving an induction notice dated April 19, 1965 made a request for a student deferment. The Local Board postponed the date of induction to await corroboration of his attendance at college. On May 24, 1965, while still scheduled for...