United States v. Walsh, Crim. A. No. 67-45-J.

• Decision Date: 26 January 1968
• Docket Number: Crim. A. No. 67-45-J.
• Citation: 279 F. Supp. 115
• Parties: UNITED STATES of America, Plaintiff, v. Allan Michael WALSH, Defendant.
• Court: U.S. District Court — District of Massachusetts

279 F. Supp. 115

UNITED STATES of America, Plaintiff, v. Allan Michael WALSH, Defendant.

Crim. A. No. 67-45-J.

United States District Court D. Massachusetts.

January 26, 1968.

COPYRIGHT MATERIAL OMITTED

Paul F. Markham, U. S. Atty., Edward F. Harrington, Asst. U. S. Atty., for plaintiff.

William J. Carr, Boston, Mass., for defendant.

OPINION

JULIAN, District Judge.

The defendant, Allan Michael Walsh, is charged in a two-count indictment with having violated the Universal Military Training and Service Act, 50 App.U.S.C. § 462. The first count charges that he willfully failed and refused on June 16, 1966, to comply with an order of his local draft board to submit to an armed forces preinduction physical examination. The second count charges that he willfully failed and refused on January 20, 1967, to submit as ordered to induction into the armed forces. The case was tried to the Court sitting without a jury.

The defendant is twenty-three years of age and was, at all times relevant hereto, subject to the jurisdiction of Selective Service Local Board No. 122, located in Quincy, Massachusetts.

On October 21, 1964, the defendant returned to the local board a completed Classification Questionnaire¹ on which he claimed conscientious objector status and on which he requested that a special form for that purpose be mailed to him. Such a form ² was mailed and was returned completed by the defendant to the local board on November 9, 1964.³

On the special form defendant signed that section indicating his objection to combatant service in the armed forces. He did not claim an exemption from both combatant and noncombatant service. The defendant also wrote:

"By reason of religious beliefs, I wish not to be subject to physical examination or medication of any sort."

Defendant based this claim for conscientious objector status on his professed three and one-half years' attendance at services and lectures of the Christian Science Church and on his reading and studying of Christian Science doctrine during that period.

Defendant was not admitted to formal membership in the Mother Church of the First Church of Christ, Scientist, in Boston until the day before he signed this request for exemption. He had, however, attended services during the two years preceding that date.

Christian Scientists as a group do not seek exemptions from combatant (or from noncombatant) military service on the basis of their religious beliefs. In such matters the Church leaves the decision whether or not to seek such exemption to the individual member's conscience.

Opposition on religious grounds to preinduction physical examinations is not required of its members by the Christian Science Church. Christian Scientists regularly serve in the armed forces and, while so serving, submit to medical, surgical, dental and psychiatric procedures when ordered to do so.⁴

The defendant was well aware that this was the policy of the Church. His objection to submitting to a preinduction physical examination was instead allegedly based on his individual religious beliefs.

On March 16, 1965, the five-member local board voted unanimously to classify the defendant I-A (available for military service), and a Notice of Classification⁵ was mailed to him three days later. Thereafter, by a letter dated March 27, 1965, the defendant requested a personal appearance before the local board. That request was granted.

Before the scheduled date for appearance, however, the defendant again notified the local board, by a letter received May 20, 1965, that he refused

"to submit to any sort of physical examination in connection with military obligations due to religious beliefs."

In view of this letter as well as the defendant's impending personal appearance, the local board clerk on June 14, 1965, forwarded the defendant's entire Selective Service file to the office of the State Director, seeking "advice and recommendation."

The State Headquarters responded on June 25, 1965, with a letter advising that decision on the defendant's eligibility for either I-O or III-A classifications should be reserved until after his personal appearance. The letter continued:

"We also noticed that Mr. Walsh in a letter dated May 20, 1965, indicated he would refuse to submit to an armed forces physical examination due to his religious belief. There are no provisions in our regulations whereby a man may waive his armed forces physical examination. However, if the registrant is classified in Class I-O and fails to report for armed forces physical examination as ordered, he will not be delinquent but would be considered available for assignment to appropriate civilian work. He must, however, be ordered to report for examination as are all other Class I-A or I-A-O registrants."

The defendant subsequently appeared at a board meeting on February 8, 1966, after which appearance the board voted unanimously to continue his I-A classification. Appropriate notice of that action was mailed to him on February 18, 1966.

Upon receiving this notice the defendant responded by another letter, dated March 2, 1966, in which he requested an appeal of his I-A classification. The letter stated that, after the February 8 appearance before the local board, he had been advised during a conference with Major Remo Gandin at State Selective Service Headquarters that registrants classified I-A-O, but not those classified I-O, would be "exempt" from compulsory physical examination. The letter further stated that this information conflicted with that given to him by members of the local board at the February 8th appearance.⁶ The defendant's letter continued:

"Feeling that the local Board may have misinterpreted this letter apparently the letter from State Headquarters of June 25, 1965 I feel that perhaps they were perhaps sic unable to come to an accurate appraisal and that this situation should be rechecked."

The Board interpreted this letter as a request for an appeal and granted the appeal despite the expiration of the ten-day appeal period.

Thereafter, on April 1, 1966, the State Appeal Board classified the defendant I-A-O (eligible for noncombatant military service), which corresponded to the status the defendant had claimed on his special form for conscientious objectors. Appropriate notice to this effect was mailed to the defendant on April 25, 1966.

It is not disputed, and this Court finds, that both classes of conscientious objectors—not only those who claim I-A-O status⁷ but also those who claim I-O status⁸—are required under Selective Service procedures to be ordered by local draft boards to submit to physical examinations. 32 C.F.R. § 1628.10. However, those conscientious objectors who are classified I-O and who nevertheless fail to report as ordered for a physical examination are not declared delinquent but, rather, are deemed to have met that requirement. On the other hand, registrants classified I-A-O who refuse to submit to physical examinations are declared delinquent and thus become, like the defendant here, liable to criminal prosecution.⁹

Thereafter, by a notice mailed May 24, 1966, the defendant was ordered by the local board to report for an armed forces physical examination on June 16, 1966. He reported on that date as directed and was taken to the Armed Forces Examination Center at the Boston Army Base. At that point, however, although he took a written examination, he refused to submit to any physical examination, stating that his refusal was based on his religious beliefs.

The local board consequently declared the defendant delinquent on July 12, 1966, and mailed notice to that effect¹⁰ to him.

The defendant responded to this notice by a letter (Exh. 20) received at the local board on July 18, 1966, in which he asked that his classification be reopened and that he be granted a full restoration of his rights to appear personally and to appeal. The letter stated, in part:

"* * * My asking for and accepting a I-A-O classification was based on my ignorance and confusion of the IAO and IO classification. I now know that a person with a IO can go into alternative service without taking a physical and can do non-medical work whereas the IAO is required to take a physical examination and usually is trained as a medic. When I asked for and accepted the IAO, I thought that he too did not have to take the Physical exam and could do non-medical work in the army."¹¹

Upon receiving this letter the clerk of the local board placed the letter in the defendant's file and then telephoned the board chairman at his business office and related to him the contents of the letter.

Upon learning of defendant's letter from the clerk, the chairman thereupon telephoned two of the other three board members¹² and discussed with them separately the defendant's request. As a result of these conversations he decided that no action should be taken and so advised the clerk by telephone.

No effort was made to contact the fourth board member.¹³ No meeting of the board was ever held to discuss or consider the defendant's request. And no letter advising the defendant of any board action on his request was sent to him as required by Title 32 C.F.R. § 1625.4. Nor was a second Special Form for Conscientious Objectors mailed to the defendant, as he had requested in his letter.

The board chairman testified and this Court finds that he had not until then known of the defendant's alleged confusion concerning the physical examination requirements of the two classifications and that he did not until long afterwards know that I-O registrants were not required to take physical examinations.

Finally, on January 9, 1967, the local board ordered the defendant to report on January 20, 1967, for induction into the armed services. Although he appeared on the appointed date at the induction center, the defendant again refused to submit to a physical examination, relying on his alleged religious beliefs. He was not, therefore,...