The opinion
JAMESON, District Judge
(concurring) :
I agree with Judge Merrill that there is no basis in fact for rejecting appellant’s claim as a conscientious objector on the ground of insincerity. It is clear from the record that appellant was a sincere conscientious objector when he applied for discharge on January 20, 1970 and for at least two years prior thereto. This conclusion, however, should not be construed as justifying or condoning appellant’s conduct in accepting the benefits of his reserve commission without disclosing his conscientious objector beliefs until he was called for active duty.
The Board could properly find that the imminence of active duty was the immediate cause of appellant’s application for discharge. 1 This court, as appellee argues, has held in a number of cases that the Board may consider “suddenness of conversion”, particularly after receipt of an order to report for active duty, in determining whether conscientious objector beliefs are sincerely held. 2 These cases, however, were decided prior to Welsh v. United States, 398 U.S. 333 , 90 S.Ct. 1792 , 26 L.Ed.2d 308 (1970) and are distinguishable with respect to the religious test to be applied. In most of them there was additional ev *209 idence to support a finding of insincerity.
By reason of appellant’s failure to assert his conscientious objector beliefs until called for active duty, a close question is presented. 3 From a review of all the evidence I conclude that this fact alone is not sufficient to support a finding that applicant’s conscientious objector beliefs were not truly and sincerely held. 4
. On August 20, 1908, appellant requested that his delay status be continued until January 1, 1970 to permit him to take the California bar examination and qualify for a Judge Advocate General commission. On February 15, 1969 he returned a Certification of Medical Fitness indicating that he was physically qualified for military service. On June 7, 1969 he was promoted to first lieutenant and apparently accepted without comment. On July 9, 1969, after declining an appointment in the Judge Advocate General Corps, he was notified that he was scheduled to report for active duty on February 9, 1970 (later amended to April 13, 1970). On October 1, 1969 he again requested rescheduling of liis active duty commencement date. On January 20, 1970 he submitted his application for discharge as a conscientious objector. At no time prior thereto liad he asserted his conscientious objector beliefs.
. The obvious feeling of the Board that appellant should have submitted an application for discharge at an earlier date is understandable. It is true, as the Board’s decision indicates, that appellant was willing to accept any benefits of his status as a reserve officer until he was required to report for active duty. On the other hand, there was no legal obligation to submit an earlier application, and his own explanation, as set forth in Judge Merrill’s opinion, is credible, even though different inferences may also properly be drawn.
. In fact, it is difficult to see how appellant could have entered active duty without making an application for discharge in the light of his beliefs and activities as set forth in detail in the record.