United States v. Stone, 73-1390.

• Decision Date: 05 November 1973
• Docket Number: No. 73-1390.,73-1390.
• Parties: UNITED STATES of America, Appellee, v. Thomas Daniel STONE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

486 F.2d 785 (1973)

UNITED STATES of America, Appellee, v. Thomas Daniel STONE, Appellant.

No. 73-1390.

United States Court of Appeals, Eighth Circuit.

Submitted September 12, 1973.

Decided November 5, 1973.

Joseph L. Mannikko, Minneapolis, Minn., for appellant.

John M. Lee, Asst. U. S. Atty., Minneapolis, Minn., for appellee.

Before VAN OOSTERHOUT, Senior Circuit Judge, and LAY and ROSS, Circuit Judges.

VAN OOSTERHOUT, Senior Circuit Judge.

This is a timely appeal by defendant Thomas Daniel Stone from his conviction upon an indictment charging him with failure to submit to induction in violation of Title 50, Appendix, U.S.C. § 462.

Defendant waived his right to a jury trial and was tried by the court and found guilty as charged, D.C., 357 F.Supp. 491 and thereafter, after the court considered the probation officer's report, was sentenced to one year's imprisonment with the provision that after serving twenty days the balance of the sentence be suspended and defendant be placed on probation for the remainder of the year, provided he do alternate type of employment approved by the probation officer.

The material facts are not in dispute. Defendant registered with his draft board on November 24, 1967. He applied for and received a student's deferment which continued until he received his college degree on July 16, 1971.

On June 10, 1971, he personally appeared before the board and requested and obtained form 150, the conscientious objector claim form. On June 17 he wrote the local Board requesting that the 30 day period for completing the form be extended, assigning as a reason: "I find this task a difficult one, in that in order to do a honest and capable job of filling this out, I believe more days are necessary, to work on it." The board extended the time for filing form 150 to approximately the last week in July 1971.

On July 26, 1971, defendant was ordered to report for a physical examination; a statement of acceptability was sent to the local board on August 20, 1971. On August 25, 1971, the local board classified defendant 1-A and mailed him form 110 which advised him of his classification and his right to request a personal appearance before the local board or to effect an appeal. The defendant pursued neither avenue. On October 6, 1971, he was mailed an order to report for induction on November 8, 1971. On October 21, 1971, the defendant submitted a completed form 150 to his local board, together with supporting documents and materials. The board took no action on the C. O. claim. On November 8, 1971, the defendant appeared at the induction center as ordered, but refused to submit to induction.

Defendant appeared as a witness at the trial but offered no explanation for the belated filing of the claim, some three months after the extended time granted for filing and several weeks after receiving notice of induction.

As grounds for reversal, defendant urges:

I. Defendant's oral request for form 150 and his written request for an extension of time in which to submit the form constitute sufficient claim for C. O. status to require the local board to determine the merits of the claim.

II. Where defendant's conscientious objections became fixed prior to the mailing of notice of induction, doubt exists as to whether defendant will receive a full and fair in-service hearing on his conscientious objector's claim and this defendant may never receive a determination on the merits of his claim.

We affirm the conviction for the reasons hereinafter stated.

Defendant first contends that his oral request for a form 150 followed by his written request for an extension of time in which to complete and file the form constituted a sufficient prima facie claim for conscientious objector status so as to require the local board to determine the merits of his claim.

The Supreme Court in Ehlert v. United States, 402 U.S. 99, 91 S.Ct. 1319, 28 L.Ed.2d 625 (1971) clearly states that a draft board need not consider a claim of conscientious objection filed or asserted after a registrant has received an induction notice. The Eighth Circuit has interpreted this ruling to mean that a local board does not even have the authority to do so, absent an objective change in circumstances over which the registrant had no control. United States v. Whalen, 451 F.2d 755, 757 (8th Cir. 1971). See 32 C.F.R. § 1625.2. Thus, in the instant case, the board was required, or even authorized, to consider only claims presented by appellant before his notice to report for induction, sent on October 8, 1971; claims presented after that date could not be considered by the board. See United States v. Salem, 479 F.2d 340, 341 (9th Cir. 1973); United States v. Larson, 455 F. 2d 187, 188 (8th Cir. 1972).

It is well established that when a local board is presented with evidence sufficient to establish a prima facie claim for conscientious objector status, it must reopen a classification and determine whether the registrant is entitled to the requested claim. However, that evidence must consist of nonfrivolous allegations of fact. Mulloy v. United States, 398 U.S. 410, 416, 90 S.Ct. 1766, 26 L.Ed.2d 362 (1970); United States v. Larson, 455 F.2d 187, 188 (8th Cir. 1972); Davis v. United States, 410 F.2d 89, 93 (8th Cir. 1969). See C.F.R. § 1625.2. "A registrant is required to submit written evidence of objective facts in support of his claim of exemption." Vaughn v. United States, 404 F. 2d 586, 590 (8th Cir. 1968). In the instant case, before notice of induction defendant had only orally requested a form 150 and had submitted a written request for an extension of time "in order do a honest and capable job of filling it out." Surely this does not constitute evidence of "objective facts" to support his claim for conscientious objector status. See id.; United States v. Lawton, 455 F.2d 328, 329 (9th Cir.), cert. denied, 406 U.S. 960, 92 S.Ct. 2071, 32 L. Ed.2d 347 (1972); United States v. McKinley, 447 F.2d 962, 963-64 (9th Cir. 1971). A "naked claim of conscientious objection does not entitle a registrant to a reopening and reconsideration of his classification." United States v. Larson, 455 F.2d 187, 188 (8th Cir. 1972). See United States v. Stow, 474 F.2d 1132, 1135 (9th Cir. 1973); Vaughn v. United States, 404 F.2d 586, 590 (8th Cir. 1968).

Defendant claims that the local board should have been required to reopen his classification on the ground that his actions in June 1971 were sufficient to alert the local board that he was claiming conscientious objector status. However, the cases upon which he relies were based on pre-Mulloy holdings or on Local Board Memorandum No. 41, as amended July 30, 1968.¹ The latter was rescinded on August 27, 1970, and thus cannot be relied upon for the standard required of claimants for conscientious objector status. Post-1970 cases, including Mulloy, clearly require written presentation of objective facts sufficient to support a conscientious objector claim before a local board is required to reopen a classification and determine a claim on the merits. This must be done before receipt of an induction order. Ehlert v. United States, supra. Defendant's actions in the instant case before receiving his notice of induction were not sufficient to establish a prima facie claim of conscientious objection.

Defendant's second contention is that even if he failed to file a sufficient prima facie claim for conscientious objector status until subsequent to his notice of induction, he has the right to have his claim determined on the merits. He argues that significant doubt exists as to whether he would be able to receive a full and fair in-service hearing, and that his conviction must therefore be reversed, for had he submitted to induction, his claim may never have been determined on the merits, neither in the selective service system nor in the armed forces.

Ehlert v. United States, supra, held that a draft board need not consider a conscientious objector claim filed or asserted after a registrant has received an induction notice, upholding a selective service regulation to that effect. See 32 C.F.R. § 1625.2.² The opinion indicated that it was based on the regulation and on the assurance from the General Counsel of the Department of the Army that individuals whose conscientious objector views crystallized after notice but before induction would be given an in-service hearing on the merits of their claim. 402 U.S. at 107, 91 S.Ct. 1319. If such a hearing were not available, the regulation would not have been upheld. "That those whose views are late in crystallizing can be required to wait, however, does not mean they can be deprived of a full and fair opportunity to present the merits of their conscientious objector claims for consideration * * *. For if, contrary to that assurance, a situation should arise in which neither the local board nor the military had made available a full opportunity to present a prima facie conscientious objection claim for determination under established criteria, see Welsh v. United States, supra 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970), a wholly different case would be presented." Id. at 103, 107, 91 S.Ct. at 1323, 1325.

Some circuits have interpreted that language to mean that every conscientious objector applicant must have a meaningful opportunity for at least one full and fair administrative determination of his conscientious objector claim. See United States v. Alioto, 469 F.2d 722 (1st Cir. 1972); United States v. Ziskowski, 465 F.2d 480 (3d Cir. 1972); United States v. Shomock, 462 F.2d 338 (3d Cir. 1972); United States v. Musser, 478 F.2d 1068, 1069 (9th Cir. 1973) (dissenting opinion of J. Hufstedler); see also United States v. Takala, No. 47047, 5 SSLR 3773 (E.D.Mich. Sept. 11, 1972). Compare United States v. Waldron, 474 F.2d 90 (7th Cir. 1973). In the instant case, defendant argues the evidence is such that he would have been denied such a hearing if he had...