United States v. Washington

• Decision Date: 26 March 1968
• Docket Number: No. 17744.,17744.
• Citation: 392 F.2d 37
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jimmie Durrell WASHINGTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

392 F.2d 37 (1968)

UNITED STATES of America, Plaintiff-Appellee, v. Jimmie Durrell WASHINGTON, Defendant-Appellant.

No. 17744.

United States Court of Appeals Sixth Circuit.

March 26, 1968.

Ed. M. Hurley, Memphis, Tenn., for appellant.

Henry L. Klein, Memphis, Tenn. (Thomas L. Robinson, U. S. Atty., Memphis, Tenn., Fred M. Vinson, Jr., Asst. Atty. Gen., Dept. of Justice, Criminal Division, Washington, D. C., on the brief), for appellee.

Before CELEBREZZE, PECK and McCREE, Circuit Judges.

McCREE, Circuit Judge.

This is an appeal from a conviction for refusing to submit to induction into the Armed Forces of the United States, in violation of 50 U.S.C.App. § 462. Appellant contended in the District Court, as he does on appeal, that he should have been granted his requested classification of 1-O (conscientiously opposed to participation in war in any form) rather than the 1-A-O classification (conscientiously opposed to combatant service but available for noncombatant service) approved by both the state and Presidential appeal boards.¹

As the parties recognized in the District Court, the scope of judicial review of a selective service classification is exceedingly narrow; the sole question being whether a "basis in fact" exists for the classification given. Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L. Ed. 567 (1946). The District Court answered this question affirmatively. We hold, however, that appellant's selective service file reveals no basis in fact for the 1-A-O classification, which implicitly found him available for noncombatant service, and that his conviction must therefore be reversed.

The burden is on a selective service registrant to show that he is entitled to the classification which he claims. See Dickinson v. United States, 346 U.S. 389, 395, 74 S.Ct. 152, 98 L.Ed. 132 (1953). If, however, a registrant has adduced evidence which would entitle him to the claimed classification, then, in order for a court to find that a basis in fact exists for the classification determined by the selective service authorities, it is necessary that the record contain "some affirmative evidence to support the * * * finding that a registrant has not painted a complete or accurate picture of his activities." Id. at 396, 74 S.Ct. at 157. At issue in Dickinson was a registrant's claim to a ministerial exemption, the validity of which depended on proof of certain objective facts with regard to the registrant's religious activities. The Court observed in Witmer v. United States, 348 U.S. 375, 75 S.Ct. 392, 99 L.Ed. 428 (1955), that in cases such as the present one, where the claim is conscientious objection,

* * * the registrant cannot make out a prima facie case from objective facts alone, because the ultimate question in conscientious objector cases is the sincerity of the registrant in objecting, on religious grounds, to participation in war in any form. In these cases, objective facts are relevant only insofar as they help in determining the sincerity of the registrant in his claimed belief, purely a subjective question. In conscientious objector cases, therefore, any fact which casts doubt on the veracity of the registrant is relevant. 348 U.S. at 381-382, 75 S. Ct. at 396.

Hence, in cases where the claimed classification depends on objective facts, mere disbelief by the selective service authorities will not provide a basis in fact for granting a different classification. Where, however, the veracity of the registrant is the principal issue, disbelief will suffice. But even in the latter situation, the record must contain some statement of this disbelief if the classification is to be upheld upon judicial review. See Witmer, supra, at 382, 75 S.Ct. at 392.

In the instant case, the record reveals that appellant's sincerity has not seriously been questioned. Both the hearing officer appointed pursuant to the selective service appeals proceedings and the inducting officer stated that appellant appeared to be sincere in his convictions.² The hearing officer did state, and the District Court reiterated, that appellant "was not strong or forceful in the statement of his belief." It does not appear, however, that the hearing officer regarded this fact as inconsistent with appellant's sincerity, nor do we think he would have been correct in doing so. Indeed, a gentleness of spirit would tend to support, rather than to defeat, a claim to conscientious objector status. It is noteworthy that in United States v. Simmons, 213 F.2d 901 (1954), rev'd on other grounds, 348 U.S. 397, 75 S.Ct. 397, 99 L.Ed. 453 (1955), a registrant's excessive use of force was held to provide a basis in fact for discounting his sincerity.

The factual basis here upon which the District Court seems primarily to have relied in upholding the I-A-O classification is the finding of the hearing officer that appellant's "reasons for not being willing to serve in noncombatant military training and service were not too convincing." In the context of this case, this finding appears to relate not to the question of appellant's sincerity, but rather to the question of whether appellant had successfully brought himself within the terms of the statute as one "who, by reason of religious training and belief, is conscientiously opposed to war in any form." The hearing officer observed that appellant, a member of a denomination known as the Church of Christ,³ objected to swearing when the selective service oath was administered, and also objected to being "yoked with unbelievers," citing Biblical injunctions against both obligations. Because no oath is required and because appellant would be yoked with unbelievers in civilian employment, the hearing officer regarded appellant's reasons as insufficient to preclude noncombatant service. The District Court apparently took the view that the absence of specific scriptural directions to refrain from noncombatant participation in the service was a sufficient basis in fact to support appellant's classification. This approach finds some support in Rowland v. United States, 207 F.2d 621 (9th Cir. 1953).

We are unable to agree with this analysis of appellant's selective service file. Even if it were assumed that the statute required specific scriptural support for appellant's claim of exemption from any form of military service, it is to be noted that appellant cited scriptural provisions other than those mentioned by the hearing officer in support of his desired 1-O classification. In a letter to the state Appeal Board dated March 22, 1964, appellant wrote:

Soldiers must give thought for apparel in his sic uniform. Christ commands us differently. Luke 12:22-30. Therefore I must give no thought for raiment, only that it be decent, modest. I Cor. 14:40, and I Tim. 2:9. If I were a member of

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