# United States v. John Douglas Broyles > Court of Appeals for the Fourth Circuit · March 19, 1970 · 423 F.2d 1299 URL: https://www.frixlaw.com/law-library/cases/9455449 ## Case - **Full name:** UNITED STATES of America, Appellee, v. John Douglas BROYLES, Appellant - **Court:** Court of Appeals for the Fourth Circuit - **Decided:** March 19, 1970 - **Citations:** 423 F.2d 1299; 1970 U.S. App. LEXIS 10232 - **Precedential status:** Published - **Opinion:** Dissent by Boreman - **Judges:** Haynsworth, Sobeloff, Boreman, Bryan, Winter, Craven, Butzner - **Cited by:** 76 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9455449 ## Opinion text BOREMAN, Circuit Judge (dissenting) ; Under the Military Selective Service Act of 1967, decisions of local Selective Service boards are to be considered “final” except where an appeal is authorized. 50 U.S.C., App. § 460(b) (3). 1 However, in Estep v. United States, 327 U.S. 114 , 66 S.Ct. 423 , 90 L.Ed. 567 (1946), the Supreme Court held that while courts are not to weigh evidence to determine the correctness of a classification, they must examine the record to see that there is a basis in fact for the classification which a board has given a registrant. The Court admonished that “ * * * [t] he question of jurisdiction of the local board is reached only if there is no basis in fact for the classification which it gave the registrant.” Id. at 122 , 66 S.Ct. at 427 . (Emphasis added.) In Dickinson v. United States, 346 U.S. 389, 396 , 74 S.Ct. 152 , 98 L.Ed. 132 (1953), the Court established that an appellate court in reviewing a local board’s denial of a particular classification is to: “ * * * search the record for some affirmative evidence to support the local board’s overt or implicit finding *1307 that a registrant has not painted a complete or accurate picture. [Emphasis added.] ****** ***** [T]he courts may properly insist that there be some proof that is incompatible with the registrant’s proof of exemption.” There is sufficient evidence to persuade me that there was a basis in fact in Broyles’ Selective Service file to sustain the local board’s denial of his conscientious objector claim. When Broyles submitted his special form for conscientious objector, he frankly stated: “A combination of things came together this Spring (1967) which made me ask for form #150 and made me fill it out. Talking to a lot of people, many already conscientious objectors, led me to believe I might be a conscientious objector myself. After reading the ‘Handbook for Conscientious Objectors’ Which I got from the American Friends Service Committee, I realized thay [sic] by law, I would probably be classified as a conscientious objector. These things coupled with the fact that I was A-I and could be drafted any day unless I acted, led me to make application for form #150, and to fill it out.” (Emphasis added.) This candid admission by Broyles that he filed his conscientious objector claim because he could be “drafted any day unless I acted” coupled with the facts that Broyles’ first Selective Service classification questionnaire specifically rejected any claim that he was a conscientious objector, that he held student deferments for some three years, and that immediately upon losing the protection of his student deferment he twice requested an occupational deferment led me to the inescapable conclusion that Broyles simply did not intend to serve in the armed forces if he could avoid it. His every move indicates a determination to escape military service. These factors provided a sufficient basis in fact for the board’s denial of his conscientious objector claim, as is required by Estep . These same factors comply with the requirements of Dickinson , as they “support the local board’s overt or implicit finding that the registrant has not painted a complete or accurate picture” and is “proof that is incompatible with the registrant’s proof of exemption.” These factors also provide support for an “inference of insincerity or bad faith,” as is required by Witmer v. United States, 348 U.S. 375, 382 , 75 S.Ct. 392, 396 , 99 L.Ed. 428 (1955). Upon finding a basis in fact for the board’s action, our inquiry should have ended, for, as the Court stated in Cox v. United States, 332 U.S. 442, 453 , 68 S.Ct. 115 , 92 L.Ed. 59 (1947), “* * * [W]hen a court finds a basis in the file for the board’s action that action is conclusive.” Courts have admonished that “It is well to remember 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.” Witmer v. United States, 348 U.S. 375, 380 , 75 S.Ct. 392, 395 (1955), supra; United States v. Hill, 221 F.2d 437, 440 (7 Cir. 1955). In overturning Broyles’ conviction, as the majority does, in the face of a substantial basis in fact in the record supporting the board’s action we have indeed assumed the role of a “super draft board,” substituting our evaluation of the evidence for that of the local board. The majority says that the decision in this case is controlled by the prior decision of this court in United States v. James, 417 F.2d 826 (4 Cir. 1969), but that case is clearly distinguishable on its facts. In James , the registrant was a Jehovah’s Witness who, from the very beginning, consistently and unwaveringly claimed that he was a conscientious objector and there was absolutely nothing in his Selective Service file to contradict his claim or to disclose a basis in fact for denying it. Accordingly, this court held that it was the duty of the local board to record in the registrant’s file the reasons for denying the claimed classification. *1308 The majority concludes that Broyles made out a prima facie case merely by filing his special form for conscientious objector classification along with supporting letters from family and friends. I cannot agree. In my view a registrant makes out a prima facie case by filing such claim, with letters of support, only when there is nothing appearing in his file which tends to contradict his claim or to indicate his insincerity in asserting such claim. In the instant case Broyles' own statements contained in the form asserting his claim for conscientious objector classification and other disclosures in the file provide support for the inference of insincerity and a desperate, last-minute effort to avoid induction. Certainly it cannot be the view of the majority that a local board must rely only upon what occurs subsequent to the assertion of the claim to exemption to find a basis for contradiction. Under the majority’s view of “prima facie case,’’ any registrant eould make out such a case simply by filing a claim with supporting letters and thus place the local board in the position where it must produce affirmative evidence to disprove the registrant’s claim. If that were the case the burden of proof would be transferred to the board to affirmatively disprove a registrant’s subjective belief which would appear, at face, to be virtually an impossible task. Selective Service law is clear that if a registrant is to be exempt from military service he must prove that he is entitled to an exemption. Dickinson v. United States, 346 U.S. 389, 395 , 74 S.Ct. 152 (1953), supra; United States v. Washington, 392 F.2d 37, 39 (6 Cir. 1968). In reversing Broyles’ conviction the majority proposes to overrule, only in part, this court’s decision in Campbell v. United States, 221 F.2d 454 (4 Cir. 1955). The majority states: “To the extent that Campbell and Gaston [Gaston v. United States, 222 F.2d 818 (4 Cir. 1955) (per curiam)] hold that inadequately explained lateness in the assertion of a claim of conscientious objection constitutes evidence which a board may consider in passing upon the validity of the claim, we leave them untouched. However, it is not now and never has been our view that lateness as a matter of law requires the rejection of the claim.” But a careful examination of the record in Campbell convinces me that the court there based its decision on the last-minute assertion of the claimed exemption. 2 In Campbell , in quoting from United States v. Simmons, 213 F.2d 901, 904 (7 Cir. 1954), this court said: “When the record discloses any evidence of whatever nature which is incompatible with the claim of exemption we may not inquire further as to the correctness of the board’s order.” (Emphasis added.) 221 F.2d 454, 457-458 . I respectfully submit that the majority, despite its disavowal, is overruling Campbell and I would prefer that this be done explicitly and forthrightly, without any attempt to leave a spark of life in a devitalized carcass. The majority assigns as one reason for its decision that “[p]rior to 1967 there was little need for a local board to state the reasons for an adverse decision on a claim of conscientious ob *1309 jection” since, by statute, the FBI was required to conduct an investigation and inform a registrant of the “nature and character” of unfavorable evidence after the local board had denied his claim. The majority reasons that “ * * * rarely would a claimant not be informed of the reasons for denial of his claim,” whereas under present law there is no such opportunity for disclosure. However, in my view, the old procedure would not have served to alleviate what appears to be the majority’s present primary concern, namely, that a local board’s failure to state its reasons for denial of a conscientious objector claim forecloses effective judicial review because the reviewing court is not informed of the precise grounds upon which the local board relied. Under the old procedure the FBI report was made available to a hearing officer of the Department of Justice who then accorded the registrant a hearing after the latter had been provided with a summary of the FBI report. The hearing officer submitted his recommendation to the Justice Department which, in turn, made a recommendation to the appeal board as to disposition of the appeal. In sustaining the local board’s classification the appeal board used a form which merely reassigned the same classification to the registrant without disclosing its reasons for affirmance. Thus, the registrant may have obtained information as to adverse evidence in the FBI report but there was no method provided by which the reviewing court could determine whether the local board and the appeal board disbelieved the registrant, or felt that he did not fall within the definition of conscientious objector, or precisely why the claim was denied. The mere fact that, under the old procedure, the registrant obtained information which was not reflected in the board’s decision or assigned as a basis for its action would provide no assistance whatever to the court in discharging its duty to review. The majority proposes a result in a case such as this which is neither desirable nor intended by statute. Therefore, I must respectfully dissent. . In 1967, the “Universal Military Training and Service Act” became the “Military Selective Service Act of 1967.” The Acts are quite similar, and the same citations were used. The language of § 460 (b) (3) which declares that decisions of local boards are to be considered “final” is identical in both Acts. . In Campbell the file showed that the registrant was an active, hardworking member of the Church of the Brethren, an antiwar church; that he submitted thirteen letters attesting to his sincerity. The only other possible bases in fact for the denial of his conscientious objector claim were that he, upon occasions, used profane language and that he had quit one job to take a hospital job while at the same time asking his local board for a 1-0 classification because he was then performing work similar to that to which he would be assigned if granted the desired classification. These factors would not tend in the slightest degree to disprove the sincerity of his claim, and the only reasonable conclusion to be drawn is that the board, in denying Campbell’s request for conscientious objector’s classification, relied exclusively upon lateness in the assertion of the claim. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9455449. Public record. Not legal advice.