United States v. Windsor, 72-3526.

• Decision Date: 02 April 1974
• Docket Number: No. 72-3526.,72-3526.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mark Randall WINDSOR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

488 F.2d 1364 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Mark Randall WINDSOR, Defendant-Appellant.

No. 72-3526.

United States Court of Appeals, Fifth Circuit.

December 19, 1973.

Rehearing and Rehearing Denied April 2, 1974.

Fred C. Isaac, (Court-appointed), Samuel S. Jacobson, Jacksonville, Fla., Mark Windsor, Gainesville, Fla., for defendant-appellant.

John L. Briggs, U. S. Atty., Jacksonville, Fla., John J. Daley, Jr., Asst. U. S. Atty., for plaintiff-appellee.

Before BROWN, Chief Judge, and RONEY and GEE, Circuit Judges.

Rehearing and Rehearing En Banc Denied April 2, 1974.

RONEY, Circuit Judge:

Mark Randall Windsor was convicted under 50 App. U.S.C.A. § 462(a), for failing to report for induction into the United States Army, D.C., 351 F.Supp. 215. On this appeal he challenges the induction order on three grounds: (1) that the local draft board's denial of his request for conscientious objector status was invalid because the Board applied an improper standard in considering Windsor's application, and (2) did not state adequate reasons for denial, and (3) that the Appeal Board's affirmance of the denial was invalid for failure to state any grounds for its action. Deciding all of these issues in favor of the validity of the induction order, we affirm the conviction.

Windsor was a senior at Gainesville High School, Gainesville, Florida, when he registered for the draft in 1969. After graduation his I-S(H) student deferment was changed to I-A. In October 1970, he was ordered to take the pre-induction physical examination and was subsequently found fully acceptable for military service. Shortly thereafter, Windsor completed SSS Form 150 petitioning for conscientious objector status.

Although Windsor's I-A classification was reopened and reviewed, the Local Board unanimously denied his conscientious objector claim and informed him of such in a brief letter from the Board's executive secretary.¹ That adverse ruling was appealed to the Appeal Board which unanimously affirmed without reasons the Local Board's denial.

I.

The standard by which the Selective Service System must judge an application for conscientious objector status has been developed by case law from the statutory requirement set forth in 50 App. U.S.C.A. § 456(j):

(j) 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.

In United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965), the United States Supreme Court interpreted the statute and established that one who holds

a sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption comes within the statutory definition.

380 U.S. at 176, 85 S.Ct. at 859. The Court in Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970), amplified the rule in Seeger by holding that a deeply and sincerely held moral and ethical belief may qualify even though the registrant considers it to be non-religious and it is substantially based on public policy considerations.

The test boils down to the sincerity of one's belief in the opposition "to participation in war in any form." See Witmer v. United States, 348 U.S. 375, 75 S.Ct. 392, 99 L.Ed. 428 (1955). That is the standard that draft boards must utilize in weighing a petition once the registrant has established a prima facie case for conscientious objector status. United States v. Stetter, 445 F.2d 472 (5th Cir. 1971); Helwick v. Laird, 438 F.2d 959 (5th Cir. 1971).

Windsor contends that the Local Board used more than the "sincerity" test in evaluating his prima facie case. He points to the language in the Local Board's denial letter as proof of an engrafted standard:

Your professed belief in opposition to war is not a compelling or controlling force in your life, but is simply an expedient to avoid military service at this time and that you are not sincere in your professed belief.

Basically he argues that his belief does not have to be a "compelling or controlling force" in his life to be sincere. See Helwick v. Laird, 438 F.2d 959 (5th Cir.1971).

A careful reading of the Local Board's letter of denial, however, reveals that the Board relied on the sincerity standard. The language "compelling and controlling force" was opined to elucidate Windsor's lack of sincerity and was not an additional test. In Silverthorne v. Laird, 460 F.2d 1175 (5th Cir. 1972), the Army denied the petitioner a conscientious objector discharge because he "lacks the depth of conviction required." 460 F.2d at 1182. The Court explained

Though the Board phrased its denial in terms of lack of depth of conviction, it obviously meant lack of sincerity. As such, the opinion of the CORB does not run afoul of Helwick, v. Laird, 438 F.2d 959 (5th Cir. 1971), wherein this Court noted that "depth and maturity" of one\'s views is not a proper consideration. It is apparent that the Review Board in this case was not alluding to the maturity of Silverthorne\'s convictions but to his sincerity.

460 F.2d at 1185. The Local Board was alluding to one facet of Windsor's insincerity and not to the maturity of his convictions. We do not perceive that a more rigorous standard was applied.

II.

Windsor contends that the Local Board did not comply with our decision in United States v. Stetter, 445 F.2d 472 (5th Cir. 1971). Stetter requires a Local Board to state why it is rejecting a conscientious objector petition so that the registrant may have a "meaningful opportunity to disprove, clarify, or rebut before the Local Board the grounds upon which that body has relied in refusing his conscientious objector application" and thus provide for "a meaningful administrative appeal." 445 F.2d at 483, 484.

We are, of course, not unmindful that the Selective Service System cannot be baggaged with all the habiliments or impedimenta of an adversary trial. On the other hand, the System\'s ratiocinations must not be so shrouded in mystery that neither the registrant nor the court has an opportunity to test them for factual reliability and rationality. We simply take the middle ground. The Local Boards and Appeal Boards, therefore, need not promulgate courtlike formal findings of fact, but they must at least state their findings and

"briefly summarize in the record those facts, whether they be inconsistencies in action or written statements, shifty or evasive demeanor, appearance of unreliability, lateness of claim or any other factors reasonably causing the board to reach its conclusion." United States ex rel. Hemes v. McNulty, supra, 432 F.2d 1182 at 1187, 7 Cir..

445 F.2d at 485. In short, the Local Board is to give sufficient reasons so that registrant and any reviewing body will understand why he was not assigned the conscientious objector classification.

Although we agree with the District Court that the Local Board's statement of reasons was "far from ideal and should not be relied on as a model for future registrants," the Stetter requirement was met under the facts of the case sub judice. The Board stated it was denying the application because Windsor was insincere and was using his application as an expedient to avoid military service.²

When the Local Board's reasons are read in light of the record as it existed at the time of denial, the basic facts upon which the Board relied are easily identified.³ First, the record exhibits no manifestation of Windsor's opposition to war other than SSS Form 150. The form was not supplemented with any letters or documents to support his application. He made no request for a personal appearance before the Board to offer further evidence although the opportunity was clearly available.⁴ The registrant seeking a change of classification to conscientious objector status must establish his sincerity to the Local Board. See Dickinson v. United States, 346 U.S. 389, 74 S.Ct. 152, 98 L.Ed. 132 (1953). Reviewing Windsor's record there is a basis in fact for determining that his belief was not sincere.

Second, the conclusion that his conscientious objector petition was brought primarily to avoid military service has a "basis in fact" in the record. A chronology is helpful:

January 9, 1970, Windsor originally classified I-A.

August 17, 1970, Windsor returned the Current Information Questionnaire, SSS Form 127, without any reference to a conscientious claim.

September 14, 1970, Windsor was notified that he was fully acceptable for military service.

January 15, 1971, Windsor requested SSS Form 150.

Windsor did not request reclassification to conscientious objector status until over one year after classification as I-A and over three months after his notification of military acceptability. This amounted to a period of "unprotected" delay⁵ and coupled with the imminence of induction provided a basis in fact evidencing expediency and a ground for finding insincerity. United States v. Brown, 456 F.2d 983 (5th Cir.), cert. denied, 409 U.S. 886, 93 S.Ct. 108, 34 L.Ed.2d 143 (1972); Carson v. United States, 411 F.2d 631 (5th Cir.), cert. denied, 396 U.S. 865, 90 S.Ct. 143, 24 L.Ed.2d 119 (1969).

The Local Board's explanation could and should have been better but, under the facts of this case, it was sufficient to apprise Windsor, the Appeal Board, and this Court of the basis of the Board's action. It was not infirm under the Stetter requirement.

III.

Although the disposition of the prior two points require no more than the application of law previously established in this Circuit to the facts of this case, Windsor's final point requires us to decide...