United States v. Ziskowski, 72-1206.

• Decision Date: 14 August 1972
• Docket Number: No. 72-1206.,72-1206.
• Citation: 465 F.2d 480
• Parties: UNITED STATES of America v. Joel ZISKOWSKI, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

465 F.2d 480 (1972)

UNITED STATES of America v. Joel ZISKOWSKI, Appellant.

No. 72-1206.

United States Court of Appeals, Third Circuit.

Argued June 15, 1972.

Decided August 14, 1972.

John D. Egnal, Egnal & Egnal, Philadelphia, Pa., for appellant.

Walter S. Batty, Jr., Asst. U. S. Atty., Carl J. Melone, U. S. Atty., Philadelphia, Pa., for appellee.

Before STALEY, VAN DUSEN and ADAMS, Circuit Judges.

OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

This appeal challenges a criminal conviction (the district court judgment and commitment is dated January 25, 1972), after trial to the court, for refusal to submit to induction in accordance with a Local Board order as required by the Military Selective Service Act of 1967, as amended, and the rules and regulations made pursuant thereto, in violation of 50 U.S.C. App. § 462.

After the registrant had received an order to report for induction on November 17, 1969,¹ which was mailed on October 23, 1969, he filed an application on Form 150 for classification as a conscientious objector (I-O) in early February 1970, alleging, inter alia, that consideration of his imminent induction in November 1969 made him realize that "I couldn't bear arms against another person." His Form 150, as supplemented by his supporting letters, made out a prima facie case for a I-O classification. See Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970). After a nonstatutory interview was granted to Ziskowski by the Local Board on February 5, 1970, at which he "advised his feelings crystallized when he received the induction order,"² the Board declined to reopen the case and sent him a letter dated 5 February 1970 stating, inter alia:

"It is the determination of the board that there has been no change in your status resulting from circumstances over which you had no control. Your classification has not been reopened."³

32 C.F.R. § 1625.2, governing the reopening of a registrant's classification after the mailing of an Order to Report for Induction, provides that such reopening shall not occur "unless the local board first specifically finds that there has been a change in the registrant's status resulting from circumstances over which the registrant had no control." The language used by the Board in refusing to reopen Ziskowski's classification is consistent with at least the following reasons:⁴

1. A Board finding that the registrant\'s conscientious objector beliefs were not sincere either before or after receipt of his notice of induction on October 23, 1969,⁵ so that there was no change in his status since he was not entitled to a conscientious objector classification in either period.

2. A Board finding that the registrant\'s conscientious objector beliefs were sincere both before and after receipt of his notice of induction on October 23, 1969,⁶ so that there was no change in his status requiring a reopening of his classification.

3. A Board finding that the registrant\'s conscientious objector beliefs, even if they were sincere and had crystallized after receipt of the Order to Report for Induction, were not "by reason of religious training" (See 50 U.S.C. App. § 456(j)),⁷ so that there was no change in his status since he was not entitled to a conscientious objector classification in either period.

4. A Board determination that even if the registrant might be entitled to a conscientious objector classification because his conscientious objector beliefs were sincere and "by reason of religious training" and had crystallized after October 23, 1969, the registrant was not entitled to a reopening of his classification because such crystallization was not "a circumstance over which the registrant had no control" within the meaning of 32 C.F.R. § 1625.2.⁸

A basic problem with the language used by the Board in refusing to reopen the registrant's classification is, therefore, that one cannot tell from this language why the Board took the action that it did. In Scott v. Commanding Officer, 431 F.2d 1132, 1137-1138 (3d Cir. 1970), this court was confronted with a similar problem, which it explained in the following terms:

"Petitioner\'s Form 150 was explicit in its statement of his beliefs. Certainly, the beliefs outlined, if sincerely held, would qualify him as a conscientious objector. The only possible grounds for rejecting his claim, then, would be finding that the beliefs are not sincerely held or that they did not undergo a material change or crystallize after the induction order.

"There is nothing in the petitioner\'s file to indicate that his asserted beliefs are not sincerely held, and the board made no finding of insincerity. . . .

* * * * * *

"Why then did the board refuse to reopen his classification? We can only speculate. Perhaps, petitioner was evasive during his courtesy interview causing the board to conclude that he was insincere in his beliefs. Perhaps, the board believed him to be a sincere conscientious objector but disbelieved his account of post-induction-order crystallization. On the other hand, for all that we can tell from petitioner\'s file the board was completely impressed with his credibility on all issues but denied his claim because of the erroneous view that his beliefs were not sufficiently `religious\' (see United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965); Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970)) or that beliefs are always within one\'s control for purposes of the reopening regulation. We simply do not know."

In Scott we concluded by holding that:

"Since petitioner\'s file contains no statement of the reasons for the board\'s refusal to reopen his classification, we have no choice but to hold his induction order invalid and direct that the writ be issued." Id.⁹

Similarly, in United States v. Neamand, 452 F.2d 25, 30 (3d Cir. 1971), this court said in reversing a conviction for refusing to submit to induction, where the local board had not indicated its reasons for refusing to reopen his classification in view of his submission of a conscientious objector claim:

". . . We just do not know why the board rejected this registrant\'s claim; on the basis of the testimony adduced at trial and the selective service file we do not know whether the board relied on an erroneous ground. Accordingly, we are persuaded that if the reasons underlying the Scott rule are valid and respectable, their application is justified and warranted here; findings by the board should have been mandated under the circumstances which underlie this appeal.

* * * * * *

. . . We hold merely that, under the circumstances of this case, we cannot countenance a conviction which springs from bare administrative action appearing so perfunctory that reasonable review of its legitimacy is impossible."

We have concluded that the bare statement given by the Board in denying reopening in the instant case, like the statements involved in Scott and Neamand, supra, is inadequate to permit proper review of the Board's actions in refusing to find a change in circumstances over which the registrant had no control. We therefore reverse the conviction, which will permit further proceedings by the Selective Service System consistent with this opinion.

We believe that the Government's reliance on Ehlert v. United States, 402 U.S. 99, 91 S.Ct. 1319, 28 L.Ed.2d 625 (1971), as making unnecessary a statement of reasons for the Board's refusal to reopen in the instant case is misplaced. In Ehlert the Court had before it a decision of the petitioner's local board not to reopen his classification because "the crystallization of his conscientious objection did not constitute the `change in the registrant's status resulting from circumstances over which the registrant had no control.'" 402 U.S. at 100, 91 S.Ct. at 1321. Thus, the local board had rather clearly made finding number 4 of the four possible findings set forth above at pages 482-483.¹⁰ The Court held that in view of the assurance by the General Counsel of the Department of the Army that a "late crystallizer" such as Ehlert would have received an opportunity to file for conscientious objector status after entry into the Army, it was reasonable to adopt the Government's administrative interpretation of 32 C.F.R. § 1625.2, employed by the local board in Ehlert's case, that the late crystallization of conscientious objector beliefs did not constitute a circumstance "over which the registrant had no control." However, the Court did not hold in Ehlert that a conviction for refusing induction may be sustained where, as in the instant case, the Local Board has failed to sufficiently indicate the reasons for its refusal to reopen a classification where a prima facie case for such reopening has been made. As indicated above, in Scott v. Commanding Officer, supra, this court indicated that such a conviction could not be sustained. That the Court did not intend to reject this holding in Scott is indicated by its subsequent opinion in Fein v. Selective Service System, 405 U.S. 365, 92 S.Ct. 1062, 31 L.Ed.2d 298 (1972). In this opinion the Court appeared to accept as law the Government's concession that the failure of the local board to articulate in writing its reasons for a denial of a prima facie case of a conscientious objector classification constituted "a fatal procedural flaw," citing among other cases this court's opinion in Scott. See 405 U.S. at 380-381, 92 S.Ct. 1062 and n. 7.

Indeed, the reasoning of the Court in Ehlert lends substantial support to the result which we reach in the instant case. One of the primary concerns of the Court in Ehlert was that there not exist a "no man's land" in which the registrant whose conscientious objector views have crystallized after receipt of his notice of induction is denied an opportunity to present his claim to either the Selective Service System or the Army. The Court noted that:

"It would be wholly arbitrary to deny the late

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