United States v. Andrew John Shomock

ADAMS, Circuit Judge

(concurring).

I concur in the result reached by the majority in this case. However, because I reach that result by a somewhat different process of reasoning, it is appropriate to set forth my views in a separate statement.

Ehlert v. United States, 402 U.S. 99 , 91 S.Ct. 1319 , 28 L.Ed.2d 625 (1971), holds that a conviction of a late crystallizing conscientious objector who refuses induction comports with due process only if he either received a fair hearing on the merits of his claim from his local board or would have received such a hearing in the Army had he submitted to induction. The Supreme Court affirmed Ehlert’s conviction on the ground that the pertinent Army Regulations in effect at the time Ehlert refused induction had been construed by the Army to provide him with the required hearing after induction but before commencement of combatant training or duty. The Court stated:

“We are assured, however, by a letter included in the briefs in this case from the General Counsel of the Department of the Army to the Department of Justice, that present practice allows presentation of such [C.O.] claims, and that there thus exists no possibility that late crystallizers will find themselves without a forum in which to press their claims. Our conclusion in this ease is based upon that assurance. For if, contrary to that assurance, a situation should arise in which neither the local board nor the military had made available a full opportunity to present a prima facie conscientious objection claim for determination under established criteria, see Welsh v. United States [ 398 U.S. 333 , 90 S.Ct. 1792 , 26 L.Ed.2d 308 (1970)] supra, a wholly different case would be presented.” 402 U.S. at 107 , 91 S.Ct. at 1324 (footnotes omitted).

Following the oral argument in this case, we sought to obtain from the Army a statement whether, on the facts of the case, had Shomock submitted to induction, the Army would have granted him a conscientious objector hearing at the time he was scheduled for induction. The responses to our inquiries, however, have not resolved that question. In reply to the letters submitted to us by the Army, Shomock has referred to us pleadings submitted by the Government in the somewhat analogous case of Baker v. Laird, 316 F.Supp. 1 (N.D.Calif.1970). There, the Army took the position that Baker was not entitled to a hearing on his conscientious objection claim because he submitted to his local board, after he received his induction notice, a claim based on conscientious objection, which *347 was denied by the local board. 1 This, according to the Army, indicated that Baker’s conscientious objection beliefs “became fixed prior to his entry into the active military service.” Because the facts giving rise to the Army’s determination in Baker transpired during substantially the same time period as the events in Shomock’s ease, it is not unreasonable to conclude, nor is it inconsistent with the letters we received from the Army, that the Army would have taken the same position with regard to Sho-mock.

Therefore, Shomoek’s case is distinguishable from Ehlert because Ehlert, had he submitted to induction, would have been granted a hearing on the merits by the Army, whereas Shomock, if he had submitted to induction, would not have received a hearing to determine the validity of his conscientious objection claim.

The question then remains: Did Sho-mock receive a hearing on the merits of his conscientious objector claim from his local board? In arguing that the local board did not err in failing to state reasons for denying Shomock’s claim, as required by United States v. Crownfield, 439 F.2d 839 (3d Cir. 1971); Scott v. Commanding Officer, 431 F.2d 1132 (3d Cir. 1970), the Government takes the position that the board never reached the merits, but decided only that Shomock had failed to present to the local board a prima facie case, a situation not requiring a statement of reasons by the local board. In fact, the Government takes the position that “there was no de facto reopening.”

But we cannot determine from our own independent examination of the record — primarily because no statement of reasons was ever given by the local board —whether or not the courtesy interview granted Shomock by his local board amounted to a full consideration of his claim on the merits.

Thus, while it would appear that Sho-mock never received from his local board, or could have received from the Army had he allowed himself to be inducted, the fair hearing contemplated by Ehlert, it is possible that such a hearing was actually held by the board. If Shomock never received the hearing to which he was entitled, then his conviction fails to comply with due process. Cf. Ehlert v. United States, swpra. However, if he did receive such a hearing, then it would appear that Shomock’s induction notice was invalid for failure to state the reasons for denying his application. See United States v. Crownfield, supra. See also, United States ex rel. Bent v. Laird, 453 F.2d 625 (3d Cir. 1971).

Accordingly, the judgment of conviction should be reversed. The local board is, of course free to reprocess Shomock for induction.

. Here Shomock submitted to Ms local board, after he received his induction notice, a claim based on conscientious objection, which was denied by the board.