Vaughn v. United States

• Decision Date: 30 December 1968
• Docket Number: No. 19125.,19125.
• Citation: 404 F.2d 586
• Parties: William Creighton VAUGHN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

404 F.2d 586 (1968)

William Creighton VAUGHN, Appellant, v. UNITED STATES of America, Appellee.

No. 19125.

United States Court of Appeals Eighth Circuit.

December 4, 1968.

Rehearing Denied December 30, 1968.

Robert C. Oberbillig, Waterloo, Iowa, for appellant.

Thomas F. Dowd, Asst. U. S. Atty., Omaha, Neb., for appellee; Theodore L. Richling, U. S. Atty., on the brief.

Before MATTHES, GIBSON and BRIGHT, Circuit Judges.

MATTHES, Circuit Judge.

The appellant was found guilty by a jury of wilfully and knowingly failing and neglecting to comply with an order of his local draft board (Omaha, Nebraska) to report for and submit to induction into the Armed Forces of the United States, in violation of 50 U.S.C. App. § 462. He has appealed from the judgment of conviction.

The basic question for decision is whether appellant's local draft board in Omaha, Nebraska, was justified in failing to reopen his I-A classification and considering his claim that he was a conscientious objector. Appellant submits that the failure to reopen has no "basis in fact" and deprived him of basic procedural fairness. This issue must be determined from the information and evidence furnished by appellant in the administrative proceeding. Cox v. United States, 332 U.S. 442, 68 S.Ct. 115, 92 L.Ed. 59 (1947).

The record presents a unique factual situation. We review the pertinent events in chronological order.

November 20, 1963. Questionnaire was mailed to appellant. He did not sign "Series VIII — CONSCIENTIOUS OBJECTOR" which reads:

"By reason of religious training and belief I am conscientiously opposed to participation in war in any form and hereby request that the local board furnish me a Special Form for Conscientious Objector (SSS Form No. 150)."

December 12, 1963. He was classified II-S (student deferment) until June 1, 1964.

December 18, 1964. Classified I-A and duly notified of such classification.

January 18, 1965.¹ He was mailed an order to report for physical examination on February 15, 1965.

February 11. Local board received a letter from appellant stating for the first time that he was a conscientious objector. Because this letter is vital to the question of whether the local board acted arbitrarily in failing to reopen appellant's classification and grant him a personal appearance we reproduce the letter in full.

"William C. Vaughn 5327 So. Cornell Ave. Apt. 217 Chicago, Ill. 9 Feb. 1964 sic Douglas Co. Local Board No. 28 Selective Service System 2409 Federal Building 215 No. 17.th St Omaha, Nebr.

Dear Sirs:

This is to inform you I cannot afford to make the trip from my home here to Omaha. Therefore I will be unable to be at my physical examination as scheduled. The hour of reporting was to have been at 7:00 a. m., 15 Feb., 1965.

Furthermore, I request a change in classification from my present I-A to that of a conscientious objector. For me, participation in the armed services is unethical. Here are a few of my reasons.

First, I believe war is outmoded. As circumstances exist today, war means complete annihilation. There is no possibility of either party gaining in an armed conflict today. Yet, almost everyone seems to feel war is a distinct possibility today, i. e., they still think of solutions to conflicts in terms of war. War is no longer a possibility, for if there is a war we will all be dead. The public must be educated to this fact and this is a duty far above the supposed duty to serve in the armed services.

Second, killing, I believe, is immoral whenever that is our intention. Therefore to serve as part of a war effort is against my personal ethics, as is capital punishment. As far as self-defense and a defense of nation is concerned, passive resistance is much more effective as well as being better morally.

My third reason has been alluded to in the previous sentence. That from the point of view of expediency passive resistance is much more effective. This is the method used with such great success by men such as Ghandi in the past and Martin Luther King and Mario Savio today. Moral force is much stronger than physical force.

Gentlemen, I am as interested as anyone in preserving freedom and human rights and in defending our country. But I favor a different type of defense. One of the freedoms I am interested in preserving is the freedom of conscience. Therefore I ask you to allow me my freedom to follow my ethical principles. Incidentally, my principles seem to be the same as Christian principles, for Christ himself said "He who takes up the sword shall perish by the sword," and "turn thou the other cheek." When will these principles become meaningful to all?

If you intend to preserve the matter further, I request a change from the jurisdiction of the Omaha board to one in Chicago where I live. Since I work, I cannot afford to go to Omaha to iron this out and lose job time and money spent on transportation. Thank you.

Sincerely yours /s/ William C. Vaughn"

February 12. The local board informed appellant that he could undergo his physical examination in Chicago on March 26. He was further informed that he was required to complete enclosed SSS Form 150 and return it to the board. On the top of Form 150 was this instruction:

"This form must be returned on or before February 23, 1965, ten days after mailing or issue."

It was also stated on the face of the form:

"Failure by the registrant to file this special form on or before the date indicated above may be regarded as a waiver by the registrant of his claim as a conscientious objector; Provided, that the local board in its discretion, and for good cause shown by the registrant, may grant a reasonable extension of time for filing this special form."

March 26. Appellant was physically examined and found acceptable.

April 6. The local board mailed finding of his physical fitness to appellant.

April 7. Board mailed order to report for induction on May 24.

May 24. Appellant informed the board by telephone that he had not reported for induction as instructed; that he had not returned SSS Form 150 because he could not answer the first two questions pertaining to his belief in a Supreme Being. He stated that under existing law he was not a conscientious objector. The clerk of the board requested him to come to the local office the next day.

May 25. Appellant appeared at the local board's office, filed Form 150, but failed to answer questions (A) and (B) Series I.² Under Series II — RELIGIOUS TRAINING AND BELIEF, the following questions appeared:

1. "Do you believe in a Supreme Being?" Applicant answered this, "no, see accompanying sheet."

2. "Describe the nature of your belief which is the basis of your claim made in Series I above, and state whether or not your belief in a Supreme Being involves duties which to you are superior to those arising from any human relation." Appellant's response to this question was "see accompanying sheet."³

June 2. The local board submitted appellant's file to the Nebraska State Board Headquarters for determination.

June 8. At the suggestion of the local board appellant appealed to the Nebraska Appeal Board.

October 30. In accordance with prescribed procedures a hearing was conducted by a representative of the Department of Justice. Appellant was present and participated in this hearing.

December 27. Department of Justice recommended against reclassification.

February 25, 1966. The appeal board unanimously voted to sustain the I-A classification.

March 18. Appellant was ordered to report for induction on April 11. He failed to comply with this order. This prosecution ensued.

We approach the question here, mindful of the admonition of the Supreme Court "that it is not for the courts to sit as super draft boards, substituting their judgments on the weight of the evidence for those of the designated agencies. Nor should they look for substantial evidence to support such determinations. Dickinson v. United States, 1953, 346 U.S. 389, 396, 74 S.Ct. 152, 98 L.Ed. 132." Witmer v. United States, 348 U.S. 375, 380-381, 75 S.Ct. 392, 398, 99 L.Ed. 428 (1955).

Our scope of review is a narrow one. Witmer, supra at 380, 75 S.Ct. 392. We are permitted to overturn the classification "only if it has `no basis in fact,' Estep v. United States, 1946, 327 U.S. 114, 122, 66 S.Ct. 423, 90 L.Ed. 567." Witmer, supra at 381, 75 S.Ct. at 395; Lockhart v. United States, (9th Cir., October 23, 1968); United States v. Spiro, 384 F.2d 159, 161 (3rd Cir. 1967), cert. denied, 390 U.S. 956, 88 S.Ct. 1028, 19 L.Ed.2d 1151 (1968); United States v. Sturgis, 342 F.2d 328, 331 (3rd Cir.), cert. denied, 382 U.S. 879, 86 S.Ct. 164, 15 L.Ed.2d 120 (1965); Keefer v. United States, 313 F.2d 773 (9th Cir. 1963), or if we find that the local board's action had the effect of denying appellant basic procedural fairness.⁴

The regulations provide a comprehensive plan for classification and reopening and consideration anew of the classification.

Under 32 C.F.R. § 1624.1, every registrant after his classification has been determined by the local board shall have an opportunity to appear in person before the board "if he files a written request therefor within 30 days after the local board has mailed a Notice of Classification to him. Such 30 day period may not be extended." Concededly, appellant at no time complied with this regulation.

Sections 1625.2 through 1625.14 relate to reopening of the registrant's classification. Section 1625.2 provides the local board may reopen and consider anew the classification upon the written request of the registrant, if such request is accompanied by written information presenting facts, which if true, would justify a change in the classification. According to § 1625.11, when the local board reopens, it should consider the new information and shall again classify the registrant as if he had never been classified before. Section 1625.13 provides "each such classification shall be followed by the same right of...