# Appendix — Giordano v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1969
- **Citation:** 394 U.S. 310

## Text

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Opinion of the Fifth Circuit Court of Appeals
IN THE ore

- United States Court of Appeals |
: FOR THE FIFTH CIRCUIT |
No. 249 91

a

‘CASSIUS MARSELLUS CLAY, JR.,
\ | Appellant,
versus

UNITED STATES OF AMERICA,
Appellee..

Appeal’ from the United States District Court for the
Southern District of Texas.

(May 6, 1968.)

Before COLEMAN, AINSWORTH and DYER, Circuit
Judges.

AINSWORTH, Circuit Judge: “It may not be
doubted that the very conception of a just govern-
ment and its duty to the citizen includes the recipro-
cal obligation of the citizen to render military serv-
ice in case of need and the right to compel it.’’ Chief.
Justice Edward Douglass White, Selective Draft Law
Cases, 245 U. S. 366, 378, 38 S. Ct. 159, 161 (1918).

Cassius Marsellus Clay, Jr., also known as Muham-
.mad Ali, heavyweight professional boxing champion

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of the world, was convicted after, trial by jury on an
indictment charging violation of 50 U.S.C. App. § 462,
for knowingly and wilfully refusing to report for and
submit to induction into the armed forces of the
United States. Clay’s draft case has been through :
practically every phase of selective service pro- .
cedure, beginning with the date he registered on
April 18, 1960, until he was ordered to report but de-
clined to submit to induction on April 28, 1967, and
was thereafter convicted by jury trial held on June 19,
20, 1967. On four different occasions he was classified
1-A (Available for military service) by his local
board, twice by: two different appeal boards (in Ken-
tucky and Texas) and once by the National Selective
Service Appeal Board (the Presidential Appeal
Board)..In every instance the vote of the boards was
unanimous. 7

_ There has been no administrative process which
Clay (Ali) has not sought within the Selective Serv-
ice System, its local and appeal boards, the Presi-
dential Appeal Board and finally the federal courts,
in an unsuccessful attempt to evade and escape from
military service of his country. Being entirely satis- |
fied that he has been fairly accorded due process of
law, and without discrimination, we affirm his con-
viction. ie

The pertinent but lengthy chronology of his case
. follows: |

3a

“ April 18, 1960—Clay (Ali) registered for. aie

service with Local Board No. 47, Louisville, Ken-
- tucky. : ° |

March 9, 1962—Registrant was classified 1-A by
Local Board No. 47, Louisville, Kentucky.

March 26, 1964—Registrant was classified 1-Y as-

. a’result of a physical examination, as being not ac-
ceptable for induction in the armed forces and not
qualified under current standards.

February 17, 1966—Registrant was reclassified 1-A.

by Local Board No. 47, Louisville, Kentucky, after
having been gdnsidered by the Examining Station in
accordance c current regulations and found fully
acceptable for induction. ‘ .

February 18, 1966—1-A classification notice was:

mailed to registrant. Clay (Ali) was furnished Spe-
cial Form for Conscientious Objector (SSS Form
150). ;

February 28, 1966—Special Form for Conscientious
Objector was filed by registrant with the local board.
' This was the first time such a claim had been made.
Registrant requested a personal appearance before
the local board in reference to the change of his
classification from 1-Y to 1-A.

March 17, 1966—The local board granted a person-

al appearance before it by registrant and again clas-
sified him 1-A.

See een Ue. Sree tee

4a
March 28, 1966—Registrant appealed the 1-A. clas-

_ sification to the menCky Appeal Board.

May 6, 1966—The Kentucky Appeal Board reviewed
the file de novo and téntatively determined that the
registrant was not entitled to the 1-O, conscientious
objector or lower, classification. The complete file
was referred to the Department of Justice for an ad-
visory recommendation as provided by Selective
Service Regulations (32 C.F.R. § 1626.25), and an in-
vestigation by the Federal Bureau of Investigation
was requested by the Department.

August 23, 1966—Registrant filed a letter request
with Local Board No. 47; Louisville, Kentucky, for re-
classification to IV-D as a minister of the Lost Found
Nation of Islam (Black Muslims).

August 23, 1966--The FBI investigation having .

- been made, a special hearing was held in Louisville,

Kentucky, to consider registrant’s conscientious ob-

_jector claim. The Hearing Officer reported his be-

lief that the registrant was sincere in his conscienticus
objector claim.

November 25, 1966—The Department of Justice, Of-
fice of Legal Counsel, Conscientious Objector Sec-

tion, recommended to the Kentucky Appeal Board
that the request of the registrant for conscientious

objector status be denied. Registrant was mailed a
copy of the recommendation on November 29, 1966.

5a

_. January 10, 1967—The Kentucky Appeal Board de-
nied the requested conscientious objector claim and
notified the registrant that he was classified 1-A.

January 12, 1967—-Local Board No. 47, Louisville,
Kentucky, reviewed the registrant’s complete file but
declined to reopen his classification. The board
agreed unanimously that registrant was not entitled
‘to the IV-D ministerial exemption.

January 19, 1967—Pursuant % the written request
of General Lewis’ B. Hershey, the National Director
_ of Selective Service, Local Board No. 47, Louisville,
Kentucky, reopened and considered anew the classi-
fication, including the claim for ministerial classifi-
cation, and after re-examining the registrant’s file
again classified him 1-A, and notice of classification
was mailed to registrant.

January, 26, 1967—Registrant.appealed the 1-A clas-
sification and requested that the Appeal Board for
the Southern District of Texas (the place of-his cur-
rent domicile at Houston, Texas) hear the appeal.

February 15, 1967—The Appeal Board for the South-
ern District of Texas classified registrant 1-A and re-.
turned his file to Kentucky on February 20, 1967, after
finding that no new information had been submitted

relating to his conscientious objector claim, and hav-
ing considered and rejected his claim for ministerial
exemption.

February 24, 1967—The National Director of Selec- |
tive Service, General Lewis B.. Hershey, appealed

en eee Oe ee Meee tee SL Ee, see eee

6a

the registrant’s classification to the National Selec-
. tive Service Appeal Board (the Presidential Appeal
Board). (See 32 C.F.R. §1627.1 for the authority of
the National Director to do so.) Registrant could not
file such an appeal because the regulations (32 C.F.R. |
§ 1727.3) require that one or more members of the
appeal board dissent from the classification before a
registrant has such a right to file the appeal himself.

e

March 6, 1967—The Presidential Appeal Board
unanimously voted to classify the registrant 1-A, and
a copy of ‘Minutes of Action Upon Appeal to the
President’? was forwarded to. the local board on
March 14, 1967.

March 14, 1967—Local Board No. -47, Louisville,

. Kentucky, ordered the registrant to. report for in-

duction on April 11, 1967, at Louisville, Kentucky.

March 24, 1967—Registrant requested a transfer of
induction to Houston, Texas, which was €ranted by

? Local Board No. 61 at Houston,

March 29, 1967—Local Board No. 61, Houston, Tex-
as, ordered registrant to report to it on April 28, 1967,
for delivery to the induction station.

April 28, 1967—Registrant reported for but declined
..to submit to induction on the grounds of his religious
- beliefs as a minister of the Islam Religion.

_ May 8, 1967—Registrant was indicted for violation
of 50 U.S.C. App. § 462.

Ta

June 19, 20, 1967—Registrant was tried and con-
victed by a jury of the selective service violation for
refusing to submit to induction, and sentenced to five
years’ imprisonment and a fine of $10,000.2- This is
his me from the conviction and sentence. .

Clay (Ali) has no prior criminal record and no pre-
vious charges or convictions for crime, other- than
minor traffic violations.

The registrant has, therefore, exhausted every ad-
ministrative remedy provided by Selective -Service.
He has also fully..pursued his rights in the United
States courts in a vain attempt to stop his induction
before his trial and conviction in the present case.

In Kentucky, registrant, who is a Negro, filed suit
in the United States Distriet Court for the Western
. District of Kentucky to prevent his induction into the
armed forces. In his suit he sought a declaration that
‘the Universal Military Training and Service Act is
unconstitutional on its face and as applied because
of “systematic exclusion” of Negroes from member-
ship ‘on draft boards; also, for an injunction. to- re- -
strain all draft boards’'in Kentucky from performing
their functions until Negroes ,were appointed to
boards in proportion to their ratio to the population.
He sought to. enjoin further classification and induc- .

1The District Judge said in this regard:
“Well, I am going to impose the maximum penalty because .
under the rules at the end of an appeal if it is reversed,
-. why, of course it is nil. If it is affirmed it is then subject
to motion to reduce, and I find that we get into problems
when clemency is given at the time of sentencing and then
following an .affirmance there is . another petition for
clemency.” (R. 277) ’ .

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tion of Negroes until this had been accomplished. The

_ District Court denied relief, holding that no evidence

had been submitted and no contention made that
Clay (Ali) had been deprived of any right of appeal
or other administrative process of Selective Service;

that there was no evidence that he had personally

been singled out and subjected to punitive action or
other discriminatory: treatment by the System. The
District Court said that the issues were not appropri-
ate for judicial review until the registrant either sub-
mitted to induction or refused to submit to induction,
at which time the issues could be raised either by ha-

. beas corpus or in defense to a criminal: prosecution.

The District Court also held that except in rare cir-
cumstances, not present here, it was not the function
of the judiciary to enjoin the operation or enforce-
ment of the Universal Military Training and Service
Act. A stay of injunction pending appeal was refused.
Muhammad Ali v. Breathitt, D. C., W. D. Ky., 1967,
268 F. Supp. 63. Registrant petitioned the Sixth Cir-
cuit for leave to appeal and for temporary restrain-
ing order pending appeal, which was denied, the
Court taking cognizance of the ‘District Judge’s de-
nial of:a certification that immediate appeal was os :
warranted and the: denial of an order staying pro-
ceedings (Unpublished opinion, 6 Cir., Docket No.
17787, March 28, 1967.) The Sixth Circuit, on/April
17, 1967, denied registrant’s application for a order
staying orders of the District Court and for an injunc-
tion pending appeal. (Unpublished opinion, 6 Cir.,
Docket No. 17884.) On the same day, the Supreme
Court denied registrant’s application for stay of the

9a

order of the United States District Court-for the West-
ern District of Kentucky, for injunction pending ap-.
peal and ‘denied leave to file a petition for manda-

, mus. Muhammad Ali v. Gordon, 386 U. S. 1002, 87
S. Ct. 1365 (1967). Rehearing was denied by the Su-
preme Court on April 24, 1967. 386 U. S. 1027, 87 S;
Ct. 1388. On the same | day, the Supreme Court
also denied petition for writ of certiorari to the Sixth
Circuit. Muhammad Ali, v. Gordon,. 386 U.S. 1018,. 87
S. Ct. 1376.

In Texas the registrant filed a similar suit -in the
United States District Court; Southern District of
Texas, raising substantially the same legal conten-.
tions as those in the Kentucky suit. The District
Court (Judge Hannay) denied relief and ruled that
the selectee’s' remedy could only arise after the final
Step toward military induction and should he refuse
this step, his remedy would lie in whatever defense
‘he claimed in the criminal prosecution, The District
Judge said that a second remedy available was that
of habeas corpus in the event the selectee should take ~
the final step toward military induction while claim-
ing that his induction was illegal, unconstitutional
and void. Muhammad Ali v. Connally, D. C., S. D.
Tex., April 28, 1967, 266 F. _— 345.

The registrant sapaniet rein the District Court de-_
_ cision. He also filed application to stay and for inter- -
im injunction pending appeal, which was denied by ©
the District Judge. He then petitioned Judge John R.
* Brown of the Fifth Circuit (now Chief Judge) for in-

10a

junction pending appeal, which was denied,? and the
matter was then referred to a panel of this Court
(Judges Gewin, Coleman and Simpson), which also
denied the motion for stay and injunction pending ap-
peal. (Unpublished order, 5 Cir., Docket No. 24714,

May 11, 1967.) | |

After refusing induction on April 28, 1967, appellant
filed another suit in the United States District Court,
Southern District of Texas, on April 29, 1967, for sim-
ilar relief, which was denied on May 1, 1967 by Judge
' Seals for substantially the same reasons assigned by
Judge Hannay in the prior case, the District Judge
being of the opinion that the subsequent refusal of in-
duction did not suffice to.create a remedy for injunc-
tive relief. At the same time an application for a stay
and for an interim injunction to the District Court
pending appeal was also denied. A panel of the Fifth
Circuit (Judges Gewin, Coleman and Simpson), on
May 11, 1967, thereafter denied a motion for stay or

2 Judge Brown in detailed reasons for his refusal (unpublished
opinion) said in part: , : .
“I conclude that on traditional principles the equities—which
includes the public interest—argue against such relief. I
would not intimate what the intrinsic merits are—but I am
convinced that the chances of success on appeal are so
remote that I ought not to grant it.

“Balancing these factors I do not think that the courts
should fntervene to test, on the application of every regis-
trant, the statutory validity of the process. The law will
not finally ever compel the unlawful conscription of a citi-
zen or permit criminal punishment for failure to submit to
unlawful orders. That inconvenience, hardship or risk may
‘be suffered if and until Congress prescribes ether remedies—
one of the perils of civilization and citizenship in a nation
which calls on its citizens for the protection of its national
and international interests.”

*

-

7

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injunction pending appeal of Judge Seals’ decision.

(Unpublished order, 5 Cir., Docket No. 24723.)

Appellant, having been indicted on May 8, 1967 for
the selective service violation, then petitioned the
Fifth Circuit for a writ of prohibition to restrain the
impending trial, which petition was denied by a panel

of this Court (Judges Tuttle, Washington and Simp- -

son) on May 15, 1967, (See unpublished order, 5 Cir.,
in Docket No. 24750.)°-

We summarize the principal guestions for decision
as follows:

1) Was the selective service induction order
to appellant invalid because of alleged
systematic exclusion of Negroes from
‘draft boards? .

2) Did the District Court err in refusing to
grant appellant’s request for the produc-

tion of certain documentary and other ev-
idence?

3) Was there a basis in fact for the denial to
appellant of a ministerial exemption?

4) Was there a basis in fact for the denial to
appellant of conscientious objector status?

‘The appeal to the Fifth, Circuit from Judge Hannay's ruling
(Docket No. 24714) was dismissed for want of prosecution on
July 28, 1967; and the appeal from the ruling of Judge Seals

(Docket No. 24723) was dismissed for want of prosecution on
September 5, 1967.

et |

i Ph iat

12a

5) Did the proceedings as a whole, selective
service and. judicial, constitute a prohib-
ited bill of attainder? |

a *

THE ALLEGED SYSTEMATIC EXCLUSION OF
NEGROES FROM SELECTIVE SERVICE BOARDS

The Selective Service System is based on the con-
stitutional provision which grants to Congress the
power. “To raise and support Armies .... ” U. S.
Const. art I, § 8(12). The Universal Military Training
and Service Act provides (50 U.S.C. App. § 460(b)
(3)) that the President is authorized to create civil-
ian local boards and appeal boards. Each local board
shall consist of three or more members to be ap-
pointed by the President from _recommendations
“made by the respective governors of each of the
states. No member of any local board shall.be a
member of the armed forces but each member shall
be a citizen residing in the local board jurisdiction.
Appeal boards shall also be composed of citizens who
are not members of the armed forces and consist
normally of five members appointed by ‘the Presi-
dent upon recommendation of the governor. The ap-
peal board shall be a composite board representative
of the activities of its areas and shall include one
member from labor, one member from industry, one
physician, one lawyer and, where applicable, ‘one
member from agriculture. (32 C.F.R. § 1604.22.)

Thus the racial composition of the local and appeal
- boards about which appellant complains, because of

13a

the absence of a proportion of Negroes in accordance
‘with their ratio to the population, results from ap-
pointment by the President upon recommendation of
the governor of each state. The appointments are
therefore federal, not state. .

There is also a National Selective Service Appeal
Board (sometimes called the Presidential Appeal
Board) composed of three members who are 4p-
pointed by the President from citizens who are not
members of the armed forces. This. board acts for
_ the President himself, being vested with the func-
tions and duties of the President provided by the Act

‘(50 U.S.C. App. § 460(b)(3)), which reads in perti-°

nent part as follows:

“The President, upon appeal or upon his own
motion, shall have power to determine all
claims or questions ‘with respect to inclusion
for, or exemption or deferment from train-
ing’and service under this fitle, and the deter- |
mination of the President shall be final.”

This board shall be in all respects independent of
the Director of Selective Service. (32.C.F.R. § 1604.6
(a), (b), (c).)-It was stipulated in the present rec-
ord that one of the three members of the Presiden-
tial Appeal Board was a Negro. However, there was
no Negro member on any of the local or appeal
boards which considered appellant’s draft case.

According to the report of the National Advisory

Commission on Selective Service (the Marshall Com-

l4a

mission), in Kentucky, only 0.2% of 641 local board
members is Ni tro, though 7.1% of the total popula-
tion is: Negro. In Texas, only 1.1% of local board
members is Negro, though 12.4%’ of the total popula-
tion is Negro. In the City of Louisville, the total pop-
‘ulation (1964) is 389,044,”“of which the white popula-
tion is 310,717 and the Negro population 78,245, or 21%.
of the total population.*-The Jefferson County, Ken-
tucky, total. population (1960) number 610,947, of.
which there are 532,057 whites and 78,350 Negroes, or
12.8% of the total population. In Harris County, Tex-
as, of a total population of 1,243, 158, 19. 817%, or 246,-
351, is Negro.”

According to the Marshall Commission Report, the
unequal percentage of Negroes on draft boards was
not peculiar to Kentucky, Texas or the South, but the
imbalance was nationwide. Only in the District of
Columbia and in Delaware were there substantial
percentages of Negroes on the boards. In twenty-
three states, there were no Negroes on draft boards,
the Report stated.®

- Nevertheless the Marshall Commission said sig-
nificantly in its report, “There is no evidence that the

4 Appellant’s. brief asserts the Negro population of Louisville
(1964) to be 78,327 and the percentage of Negroes to be 20.1%—
a slight error. The difference is, of course, not significant. See
Special Censuses, Series P-28, No. 1377, Louisville, Kentucky
(United States Department of Commerce).

> Appellant in brief supplies other calculations from the record
as follows: 9. 60% of the total population of the Western District
of Kentucky is Negro; 14. 25 % -of the. total population of the .
Southern District of Texas is Negro.
. §For example, there were no Negroes on draft boards in such
states as Indiana, Iowa, Kansas, Maine,. Minnesota, New Jersey
and Rhode Island.

15a

variability of the Selective Service System leads to
any systematic biases against poor people, or Ne-
groes, insofar as the final proportion of men serving
‘inthe Armed Forces is a measure of this.”

As a direct result of the Marshall Commission Re-
port, the President in his message to the Congress on
Selective Service dated March 6, 1967, instructed the
Director of the Selective Service System to work with
_ the governors “to assure that all local boards are
truly representative of the communities they serve
and. to submit periodic reports on the progress in
this area.’’

The Universal Military Training and Service Act
in its congressional declaration of policy declares
that the obligations and privileges of serving in the
armed forces’ should be shared generally in accord-
ance with a system of selection which is ‘‘fair and
just” (50 U.S.C. App. § 451(c)). The Act further pro- .
vides (50 U.S.C. App. § 455(a)) that “The selection of
persons for training and service ... shall be made
in an impartial manner, under such rules and regula-
tions as the President may prescribe, from the per-
sons who are liable for such training and service and
who at the time of selection are registered and clas-
sified, but not deferred or exempted: Provided, That
_ in the selection of persons for-trajning and service .
under this title .. . , and in the interpretation and
execution of the ‘provisions of this title .. . , there
shall be no discrimination against any person on ac-
count of race or color: . . ...”

Wate dyy cxSayn aed ie

“a

16a
The Selective Service Regulations .(32 C.F.R. §

' 1622.1(d)) provide, “In classifying a registrant there

shall be no discrimination for or against him because

of-his racé, creed, or color, or because of his mem-

bership .or activity in any labor, political, religious,
or other organization. Each such registrant shall re-
ceive equal justice.”’ eh

. Appellant argues that the quoted statistics evidence
racial exclusion in the composition of draft boards,
in violation of the Fifth Amendment. He cites United
States v. Jefferson County Board of Education, 5 Cir.,
1966, 372 F. 2d 836, 837, aff’d on rehearing, en banc,
380 F. 2d 385 (1967), cert. denied, sub nom. Board of
Education, of the City of Bessemer v. United States,
389 U. S. 840, 88 S. Ct. 77 (1967), where this Court said
that it has frequently relied on percentages in jury
exclusion cases and in other civil rights cases for ev-
idence of deliberate discrimination against Negroes.

He concludes that if systematic exclusion of Negroes

is constitutionally barred in the composition of juries,
their exclusion in the Selective Service System like-
wise infringes his rights and requires a holding that
draft boards, such as those in Kentucky and Texas
which considered appellant’s case, have no jurisdic-
tion over appellant or in fact over any Negro. Thus
he argues. that the local boards have acted beyond
their jurisdiction and may not act as to that class of

. registrants (including appellant) against whom it is

claimed the appointing process has discriminated.
Appellant concedes that considerable progress in rec-

. tifying this disparity in the several states has been -—

: la
made since the President’s March 6, 1967, message to
Congress on Selective Service, but contends that Ne-
groes should not:be selected in the future until the al-
leged systematic exclusion of members of that race
from draft boards has ceased.
- .

Appellant - likens his classification and induction
into the armed forces to a criminal prosecution be- .
cause, aS in a criminal prosecution, the Govern-|
ment restrains a registrant.of his liberty and may
even cause his death by sending him into combat.

No court has held, so far as we can determiine, nor
do we here, that a Negro registrant for selective serv-
ice is entitled to be classified and inducted by a selec-
tive service board composed of a percentage of Ne-
gro members which the Negro population bears to
the total population, or that a board-lacks jurisdic-
tion of a registrant unless so constituted. No ques-
tion is raised that the boards which considered ap-
pellant’s classification were not regularly and prop-
erly constituted under appointment by the Presi-
dent, recommended by the. governor. We do not jus-
tify the failure to include substantial numbers of Ne- ©
groes on such boards. The Selective Service System
must not only be fair, it must likewise have the ap-
pearance of fairness. Negro draftees stould’ be se-
lected for military service by a system which gives
| Negro citizens a full participation in the selection
process, The Marshall Commission affirmed the ne-
cessity of greater participation by Negroes who are
underrepresented as a class 6n local draft boards.

18a

The Commission said that the Negro’s position in
_ the military manpower situation’ is in many ways
disproportionate, even though he does not serve in
the armed forces out of proportion to his percentage
to the population. The President in his March 6, 1967,
message to Congress said in this regard: “The Na-
tion’s requirement that men must serve, however,
' imposes this obligation: that in this land of equals,
men are selected as equals to serve. A just nation

must have the fairest system that can be devised for
making that selection.” We concur. with these re-
marks to the fullest. But nothing we have said. justi-
fies exemption from service in the armed forces for -
Negro registrants. | :

It is undeniable, as appellant contends, that con-
scription deprives an individual of his liberty and
may even take his life. But we cannot properly com-
pare the military draft to a criminal prosecution.
There is no stigma’ attached to wearing the military
uniform of the United States. To the contrary, it isa .
badge of the highest honor. Service under the flag of
our country cannot properly be likened to imprison-
- ment in a penitentiary. A proud nation with a long
tradition of valor and bravery on the battlefield, with
vivid memories in modern times of distant places |
where Americans have fought and died to preserve —
freedom, some with unusual names, such as Chateau-
Thierry, Normandy, Iwo Jima and Khe Sanh, would
never permit a comparison so odious. It is the same
willingness of Americans to sacrifice their lives in the -
military service of the country which has made it

19a

possible to establish the United States as a free na-
tion, and which ‘has successfully warded off the en-
croachments of its enemies. “The knowledge that
military service must sometimes be borne by—and
imposed on—free men so their freedom may be pre- .
served is woven deeply into the fabric of the Ameri-
can experience.’’ President Johnson, Message on Se-
lective Service to the Congress, March 6, 1967.

The Government. argues—-and we agree—that a
draft board system which does not have a sufficient-
ly representative number of Negro members is com-
parable to a malapportioned legislature. The acts of
such a legislature are not invalid and the laws which
it passes are not null and void. The acts of a malap-
portioned legislature or local or county commission |

or board are acts of a de facto political authority and - ;

valid despite their failure to be apportioned in ac-
cordance with Baker v. Carr, 369 U. S. 186, 82 S. Ct.
691 (1962), and Avery v. Midland County, Texas, ....
U.S: ...., 88S. Ct. 1114 (1968).

Nor is appellant’s argument meritorious that .com-
position of draft. boards is similar to that of grand
. and petit juries. The right to trial by jury has spe-
cific constitutional authority. However, nothing in
the Constitution or the Universal Military Training
and Service’ Act requires racially proportionate se-
lective service boards. It is not difficult to uuder-
stand the reasons which support the prior rulings of
the Supreme Court and this Court in the jury selec-
_ tion cases where convictions have been set aside for

BT AGL SE es Qe EO Le Bee ee Semone

failure to have representative numbers of Negroes
on jury venires. See Whitus v. State of Georgia, 385
U. S. 545, 87 S. Ct. 643 (1967); Rabinowitz v. United
States, 5 Cir., 1966, 366 F.-2d 34; Mobley v. United
States, 5 Cir., 1967, 379 F. 2d 768. The boards are ad-
ministrative agencies with specific duties, many of
them purely ministerial, which are provided for by
the Act and Selective Service Regulations. A jury’s.
verdict arrived at by ‘secret deliberation has a final-
ity which is not-at all applicable to selective service
classificatioW and induction. As we shall see, draft -
~ board appeals are considered de novo and ate not ju-
dicial proceedings. |

-’ The war powers of Congress to raise and support
armies are constitutionally authorized and are of
paramount public importance because they directly
involve the protection and. preservation of the nation
itself. In this vital and sensitive area it behooves the .
judiciary to recognize the imperative necessity for |
the maintenance of the national integrity as upheld
- by the military forces of the United States. The Uni-
. versal Military Training and Service Act provides
that. “every male citizen of the United States’ be- -
tween ceriain ages shall register and be subject to in-
duction in the armed forces of the United States. Ex-
emptions from service, such as for conscientious™ob-
jectors or ministers of religion, are matters of legis-
lative grace. United States v. Mohammed, 7 Cir.,
1961, 288 F. 2d 236, 242;. Parrott v. United States, 9
Cir., 1966, 370 F.. 2d 388, 391. It has been long estab-
lished that there is no constitutional right to exemp-

*

BRN Ch me ni i oa nnd are

4
‘
|
}

7

25a whe /

peal Board. General Hershey was requested to bring
with him is notes about a public statement on Jan-
uary 31, 1967, in which he predicted appellant would
not be deferred. Representative Rivers was request-
‘ed to bring the notes of his public statement on Au-
gust 25, 1966, relative to a statement that if Cassius
Clay was deferred bythe Louisville Board, “You
watch what happens in Washington.” The. members
- of the National Selective Service Appeal Board were
to bring all records and to be examined about the
minutes of meetings and communications ‘between
them relating to appellant’s hearing. The safe in-
formation was to be obtained from the members of
the Texas Appeal Board. Appellant also moved to
take the depositions by written interrogatories of the

Governors of Texas and Kentucky, the Selective Serv-

ice Directors of those states, General Hershey, mem-
bers of. the National Selective Service Appeal
. Board, men:bers of Local Board No. 47, members of
the Texas Appeal Board and Representative Rivers.
Another application sought issuance of subpoenas
duces tecum to Lyndon B. Johnson, President of the
United States;* Ramsey Clark, Attorney General;

General Hershey; the Chairman of Local Board No. |

47, Louisville, Kentucky; the Chairman of the Texas

Appeal Board; the Director of the National Selective
Service Appeal Board, Representative Rivers and
the Executive Director of the National Advisory Com-
mission on Selective Service, whereby these. witness-
es were to produce certain books, papers and docu-
"ments in their possession called for by the subpoenas.

*The request for a subpoena to the President was subsequently
withdrawn by appellent’s counsel.

a

26a

A mass of material was, therefore, sought by these
discovery techniques. The Trial Judge held a hear-
ing, received briefs and permitted oral argument as_
to whether the requested discovery should be granted.
Appellant’s basic contention was that the informa-
tion sought was necessary to prove systematic exclu- .
sion of Negroes in the Selective Service System and
that there was lack of procedural due process in
the handling of his case. The Government objected to
the requested discovery and moved to quash the sub-
poenas duces tecum, contending that what appellant
sought was to put the Selective Service System itself -
on trial by a congressional-type general investigation.
The Government.argued against permitting such an
‘investigation of the System, and also that the ma-
terial sought was irrelevant to any issue which might
arise in the criminal trial. |

The Government further contended that defense
counsel was attempting to explore into the minds and
- mental processes of the administrative officers named
in the subpoenas, was engaging in a “fishing ex-
pedition,’’ and that much. of the matter sought,
though irrelevant, could be obtained from other
‘sources. The District Court refused to order produc-
tion of the dis¢overy, documentary and. other evi-
dence sought by appellant. Nevertheless, much of it
“found its way into’the record at the trial.’ ‘The

107n the present record are the following: Registrant’s entire .
Selec ive Service file, the Report of the National Advisory Com-
ion on’Selective Service showing the percentages of Negroes
local ,boards throughout the states of the nation, Minutes of
e Presidential Appeal Board relating to: appellant's case, and
resident’s Message to the vongrens on Selective Service

dated March 6, 1967.

t
PRY

27a ©
measure of discovery permitted by ‘the Rules of ©
Criminal Procedure is. not intended to be as broad
as in a civil case. Fishing expeditions are the order
of the day in a civil action but not in a criminal
case for in the latter only limited discovery is per-
mitted. United States v. Sermon, D. C.,, W. D. Mo.,
1963, 218 F. Supp. 871, 872, 873. A judge should, there-
fore, be sensitive to the rules of discovery, which are
far more restrictive governing criminal discovery.
Campbell v. Eastland, 5 Cir., 1962, 307 F. 2d 478,

487. Application for relief under Rule 16, Federal

Rules of Criminal Procedure, is a matter within the
sound discretion of the Court and the controlling test
is whether there has been an-abuse of discretion.
Gevinson v. United States, 5 Cir., 1966, 358 F. 2d 761,
766; Beatty v. United States, 5 Cir., 1967, 377 F. 2d
181, 185, reversed on other grounds, 389 U. S. 45, 88
S. Ct. 234 (1967). We believe the District Judge’s
ruling was correct and that it was made in the exer-
cise of reasonable discretion in the management of
the proceeding. What the defense actually sought was
to place the Selective Service System itself on. trial
by a broad, general, though vague and indefinite,
investigation into its activities and procedures. Most
of the evidence requested ‘was immaterial to any de-
_ fense which could be raised by appellant at his trial.
The statistical information about the representation
of Negroes on draft boards generally as well as in
Kentucky and Texas was available from other
sources and is in the record. It would have been
grossly improper to place the members of the Presi-
dential Appeal Board and the Texas Appeal Board

neat otilohes tite indmiz hteebtieiithis

. 28a
on the witness stand to determine from them what
their reasons were for the selective service classi-
fication which they gave to appellant in this case. -

There was, therefore, no error in the ruling of the
Trial Judge.

a *
‘DENIAL OF THE MINISTERIAL EXEMPTION

Seope of Review. In considering the propriety of
appellant’s classification, and the denial of a, minis-
terial exemption and conscientious ‘objector status,
we must keep in mind that the Act provides that de-
cisions of the local boards are final. (50 U.S.C. App.
§ 460(b)(3).) In the leading and much cited case

_of Estep v. United States, 327 U. S. 114, 122, 66 S:

Ct. 423, 427 (1946), the Supreme Court said:

“The provision making the decisions of the lo-
cal boards ‘final’ means to us that Con-
gress chose not to give administrative action
under this Act the customary scope of judi-
cial review which obtains under other stat-
utes. It means that the courts are not to
weigh the evidence to determine whether’ the
classification made by the local boards was
justified. The decisions of the local boards
made in conformity with the regulations are
final even though they may be erroneous.
The question of jurisdiction of the local board
is reached only if there is no basis in fact for .

the classification which it gave-the regis-
trant.”’ ;

Therefore, the ‘scope -of review of local board de-
cisions in draft cases is very limited and the range
of review is the narrowest known to the law. Mat-
yastik v. United States, 5-Cir., 1968, .... F. 2d ....
[No. 24269, February 12, 1968]; Blalock v. United
States, 4 Cir., 1957, 247 F. ad 615.1! In Blalock the
Fourth Circuit said:

“The ‘clearly erroneous’ rule applied in eq-
uity, appeals ‘has no place here, nor even the
‘substantial evidence’ rule of the Administra-
tive Procedure Act, 5 U.S.C.A. § 1009. Con-
gress gave the courts no general authority of .
revision over draft board proceedings, and we
have authority to reverse only if there is-a
denial of basic procedural fairness or if the
conclusion of the board is without any basis
in fact. Witmer v. United States, 348 U. S. :
375, 75 S. Ct. 392, 99 L. Ed. 428; Goff v. U. S.,
4 Cir., 135 F. 2d 610.” .

The. courts donot sit as super draft boards, sub-
stituting their judgments on the weight of the evi-
dence, nor should they. look for substantial evidence

=

11“The registrant who wants to take his case to court will find
little relief from that quarter. Indeed, he will find it difficult
to obtain review at all. The courts have allowed review only by
habeas corpus after induction and defense to a criminal prose-
cution for failure to report for induction.” (citing Witmer v.
United States, 348 U. S. 375, 377, 75 S. Ct. 392 (1955) in support
of the text) Comment, The Selective le: 76 Yale ae
172 (1966).

i.
to support such determinations. Tamarkin v. United
States, 5 Cir., 1958, 260 F. 2d 436, 437; Wood v. Unit-
ed States, 5 Cir., 1967, 373 F. 2d 894, reversed on
other grounds, 389 U. S. 20, 88 S. Ct. 3 (1967); Dick-
inson’'v. United States, 346 U. S. 389, 396, 74 S. Ct.
152, 157 (1953); Witmer v. United. States, 348 U. S.
375, 75'S. Ct. 392 (1955).

In recent cases we have consistently supported ‘the
“basis in fact’? test in connection with the classifica-
tion of draft registrants by local boards. See Wood
v. United States, 5 Cir., 1967, 373 F. 2d 894; reversed
on other grounds, 389 U. S. 20, 88 S. Ct. 3 (1967);
Greer v. United States, 5 Cir., 1967, 378 F. 2d 931;
Foster v» United States, 5 Cir., 1967, 384 F. 2d 372;

Jones v. United States, 5 Cir., 1968, .... F. 2d ....
[No. 24565, January 17, 1968]; Matyastik v. United
States, 5 Cir., 1968, .... F. 2d .... [No. 24269, Feb-

ruary 12, 1968].

The Ministerial Exemption. We turn now to the
question of the, deniai of a ministerial exemption to
appellant who claims to be a minister of the Lost
Found Nation of Islam (Black Muslims). The Act
provides that rebular or duly ordained ministers of
_ religion shall be exempt from service. - U.S.C. _—
§ 456(g).)

| “The term ‘regular minister of religion’
means one who as his cuStomary vocation
preaches and teaches. the principles of re-

12 For a further discussion of the narrow scope of review in ‘draft
cases, see Comment, Fairness and Due Process Under the Selec-
tive. Service System, 114 Penna. L..Rev. 1015, 1019 (1966).

3la

ligion of a church, a religious sect, or or-
- ganization of which he is a member, without
having been formally ordained as a minister
of religion, and who is recognized by such
‘church, sect, or organization as a regular
minister.” (50 U.S.C. App. § 466(g), (2).)

‘See also 32 C.F.R: § 1622.43 (Selective Service Reg-
ulations) which places a regular minister of: religion .
in Class IV-D. Most important, the registrant bears
A ‘the burden of clearly establishing a right to the minis-

PP eer ee ee ee

terial exemption and the board has no affirmative - ~
duty to ascertain whether or not the registrant quali- 5
fies for the exemption. Wood v. United States, 5 .
Cir., 1967, 373 F. 2d 894, reversed on other grounds, -
389 U. S. 20, 88 S. Ct. 3 (1967). — - :

In D#kinson v. United States, 346 U. S. 389, 394,
395, 74@5. Ct. 152, 156, 157 (1953), a ministerial ex-
emption case, the Supreme Court said:

“The ministerial exemption, as was pointed ~~~»
out in the Senate Report accompanying the

1948 Act, ‘is a narrow one, intended for the
leaders of the various religious faiths and not

for the members generally.’ S. Rep. No. 1268,

80th Cong., 2d Sess. 13. Certainly all mem-

bers of a religious organization ‘or sect are |
not entitled to the exemption by reason of.

their membership, even though in their belief

each is a minister. Cf. Cox v. United States,

1947, 332 U. S. 442, 68 S. Ct. 115, 92 L. Ed. of
59. On the other hand, a legitimate minister

nate te SM

Mi stedide

MY eA atc Nah resintin’ ns

Fe ee

Se eens

See eee

d2a

cannot be, for the purposes of the Act, un-
frocked simply because all the members of
his sect base an exemption claim on the dog-
ma of its faith. That would leave a congrega-
tion without a.cleric. Each registrant must

_ satisfy the Act’s rigid criteria for the exemp-
tion. Preaching. and teaching the principles of
one’s sect, if performed part-time or half-time, _
occasionally or irregularly, are insufficient
to bring a registrant under § 6 (g). These ac-
tivities must be regularly performed. They
‘must, as the statute reads, comprise the regis-
trant’s ‘vocation.’ And since the ministerial
exemption is a matter of legislative grace, the
selective service registrant bears the burden
of clearly establishing a right to the exemp-
tion,”

_ The test, therefore, is whether a registrant, as a

vocation, ‘regularly, not occasionally, teaches and

preaches the principles of his religion. There must be

regularity of religious activities, a ministerial voca-

tion rather than an avocation, and a recognized stand-

ing as a minister to a congregation or leader of a

group of lesser members of his faith. Wiggins v.
United States, 5 Cir., 1958, 261 F: 2d 113; Fitts v.
United States, 5 Cir., 1964, 334 F. 2d 416; Wood

Vv. United States,.5 Cir., 1967, 373 F. 2d 894, reversed |

on other grounds, 389 U. S. 20, 88 S. Ct. 3 (1967);

’ Greer v..United States, 5 Cir., 1967, 378 F. 2d 931;
Foster v. United States, 5 Cir., 1967, 384 F. 2d 372;

Jones v: United States, 5 Cir., 1968, .... = fae

33a

[No. 24565, January 17, 1968]; Matyastik v. United
- States, 5 Cir., 1968; .... F.2d Pete [No. 24269, Febru-
ary 12, 1968].

Appellant was certified as‘a minister by the Na-
tional Secretary of the Lost’ Found Nation of Islam
and by its leader, Elijah Muhammad. He contends
that he spends 90% of hhis time on his ministerial
duties. He submitted 43 affidavits and documents
Said to contain the signatures of 3,612 people testify-
ing to his ministerial activities. Finally he states that
there was no evidence in his file upon which a “ba-
sis in fact’’. could. be found to Support his 1-A classi-
fication by the board. We are unable to agree with
his statements or contentions. The file indicates that
appellant joined his religious sect in-January 1964.
He has apparently earned his living as a professional
boxer for a number of years and became professional
heavyweight boxing champion ‘of the world on Feb-
ruary 25, 1964. Some years earlier he had won the
world light heavyweight boxing championship at the
Olympics at Rome. He contends’ that he became a
minister of:the Muslims in early 1964. In the first in-
. formation which he supplied to his local board on
selective service forms, his occupation was shown
to be that of “professional boxer” and “professional
prizefighter.’’ The Report of Medical History dated
January 24, 1964 showed his usual occupation to be
“boxing.” : During all’ this time he made numerous
trips to foreign countries to engage in’ professional
bouts which he stated required daily physical train-
ing and exercise in preparation ne these prizefights.

His Current Information Questionnaire dated Febru-
ary 2, 1966 listed his occupation as a “professional
_boxer’’ and his work as “professional fighting.’’ Then,
on pentuary 17, 1966, the eventful and important
_. date“in this case, his 1-Y classification was changed
_by the local board to 1-A. Clay. (Ali) had never stated .
- to his board or. claimed to be.a minister or a con-
scientious objector prior to that time. He wrote Local:

* Board No. 47 on February 14, 1966, just three days _

prior to his reclassification that “My occupation is
professional boxer, and I am at present the Heavy-
. weight Champion of the World.’’, Even when he
filled out the Special. Form for Conscientious Objec-
tor dated February 28, 1966, though claiming to be a

member of. the Nation: of Islam, he did not claim to:

be a minister. His lettdr_of March 17, 1966 to Local
Board No. 47 protested that his reclassification im-
posed ‘“‘grave hardship upon me as heavyweight .
champion of the world at now age 24.” When he ap-
peared in person before Local Board No. 47 on
March 19, 1966, boxing was listed. as his livelihood.
The evidence which the local board had before it
-was much more than necessary to constitute a “ba- _
sis in fact” for his 1-A classification and denial of the

" ministerial exemption. His vocation is clearly that of
a professional boxer.

IV.
DENIAL OF CONSCIENTIOUS OBJECTOR ‘STATUS
- Appellant’s. claim that he is a conscientious objec-

tor began on February 18, 1966, one day after his re-

ae

f i be. : wel, ahi at se! ae a
EN ee sinned’ Seng SOREL Lee tote. =f elaine - =

classification to 1-A, at which time he was furnished
the Special Form for Conscientious Objector. He was
_ grante® a personal appearance before. Local Board
4 No. 47 on March 19, 1966, pursuant to his request.
The board’s record of that appearance reflects that
he claimed*hardship on account of taking care of his |
parents and paying alimony to his former wife. The
board’s record states, “‘His religion teaches them not .
‘to take part in any way with infidels or any nonreli-
gious group. they fight only in self-defense, not war.
Boxing is considered his livelihood.” Also, “Clay ob-
jects to being in service\because he has no quarrel]
_ with the Viet | Cong. Cl; stated that he could nédt,...
without being 2 ‘hypocrit, [sic] take part in any-
thing such as war or anything that. is against the
-Moslim religion.” He wrote a lengthy letter to his lo-
cal~poard dated April 16, 1966, in which he ‘repeated
his hardship request as the sole support of his moth-
er and on account of having to pay alimony to his
first wife. He protested that two years of military
service would cause him serious financial loss in be-
ing unable to pursue his livelihood as a professional
‘boxer.’® The local ‘board nevertheless reaffirmed the

13-'The pertinent part of the letter to the board reads as follows:
“Two years is a very long time in the life of.a heavyweight
champ—from age eZ when I was classified from 1-A to 1-Y,
and my present age 24. From age 24—to age 26 I may ~ '
‘never be able to. overcome this time of loss of boxing ~ -
sharpness and come back from the service and earn thie kind
' of money réquired to pay off these financial obligations,
even though they may be abated during the time of military
service. I would therefore be. in hock for the rest of my
life, whereas if I can get in a few. more fights, which are
lined up through the fall “of this year, I should be able to.
settle these permanfnt financial obligations from the money
I should get withig this year, while I am at my peak of —
shape and am the Heavyweight Champion of the World.
A 6-month defense is necessary to retain the title.”

. 2 a ~~
weighs Bri Ser oaie Prunes Lease wee sb saeail

ee re

4

“ee Ss ert Dahiasnoefiin sina in ete * ae

Cc»

1-A classification and the registrant appealed to the

’ appéal board. On May 6, 1966, the complete file was

reviewed by the Kentucky Board of Appeals. which

_Aentatively determined that the registrant should not

be classified in Class 1-O (conscientious objector) or
in a lower class. See 32 C.F.R. § 1626.25(a), (b). °

The Department of Justice then requested a Fed-

. eral Bureau of Investigation investigation and a spe-
.cial hearing on the. character and good faith of the

conscientious objections of the registrant. (32 C.F.R.
§ 1626.25(d).)™* The special hearing was held on Au-

gust 23, 1966, at Louisville, Kentucky, before former

Circuit Judge Lawrence Grauyman as hearing offi-
cer. The hearing officer reported to the Department
of Justice that the registrant stated his views in a
convincing manner, answered all questions forthright-

ly,. that he was impressed by the statements, believed-

the registrant was of good character, morals and in-

‘tegrity and sincere in his objection on religious —

grounds to. participation in war in any form. He rec-
ommended that his conscientious objector claim be

‘sustained. However, the Department -of Justice in a
detailed. and comprehensive letter opposed his"

claim’ and recommended to the Kentucky Board of
Appeals that it,not be sustained. The Department of

Justice concluded that registrant’s objections to par? ae

ticipation in. war insofar as they are based upon the

1¢The regulations.follow generally the provisions of the Act on
the procedure for considering conscientious objections. See. 50
U.S.C. App. § 456(j). f ea

13 The Department’s written objections are to be’foynd in the file

in a 17-page letter dated November 25; 1966 to tthe Chairman |
of the Appeal Board, Western District of Kentucky. +

8

- @

Ket RR SIRO anit ee Pe rt eT On ee TN POE NEE SEEN ee eS eT ture wi a% cok’

37a
teachings of the Nation of Islam “rest on grounds
which .are primarily political and racial. ‘These con-

Stitute objections to only ‘certain types of war in cer-

tain circumstances, rather than a general scrupl
against participation in war in any form.’’* The E

16 For a penetrating analysis of the beliefs of the Black Mustinis,
see Sostre v. McGinnes, 2 Cir., 1964, 334 F. 2d 906, cert. denied,
379 U. S. 892, 85 S. Ct. 168 (1864). The Court said in that

‘case (at 909); ~

“Basic to the problem of prison discipline is the‘ fact that
the teachings of ‘Elijah Muhammad include condemnation
of the. entire white race as wholly ‘evil,’ composed
of devils, murderers, thieves, robbers, scientists at
tricks, world snoopers, medtilers and liars. Present- |
ing almost equal difficulty is the Muslims’ demand for total
segregation between whites and blacks. These Muslims also
adopt the position that the Christian religion is loathsome
and . despicable.’ °

we: Elijah Muhammad has said:

““The white’ race or Caucasian European race is known
ta God and his prophets as Satan, the devil, the enemy
of God and his people (the original nation) power was

-% given to them to rule with evil and falsehood the darker

nations for six thousand years. ‘They have done and—
are now forty-six years overtime and ‘they know this.
* It will take a few years to complete the separation.

. Nevertheless the work is going on now at a very good

rate of speed.’

“The truth of the white race will make all black mankind

hate them. The truth of the white race and kind will make

all black mankind hate them regardless of their color;

_black, brown, yellow or red. The truth of the white
‘race is a part of that secret which was withheld by

Allah to -allow them, the devils, to live their time, six

thousand years.’

“If you understood it: right you will agree with me that

the whole Caucasian Race is a race of -devils.’

“(The quotations are from the Supreme Wisdom contain-
ing ‘the teachings’ of the Honorable Elijah Muhammad.
This work was an exhibit in the present case.)

“Malcolm X, at the time a ‘minister’ of the Muslims,
said of an airplane accident iw which more than 120 white
people were killed:

“*Well, somebody came and told me that he really had

answered our prayers over in France. He dropped an

airplane out of the sky with over one hundred twenty
white people on it, because the Muslims believe in an
eye for an eye and*‘a tooth for a tooth, but thanks to

s
td

allt i as ae

ba were
. :

as nie wee

ee ee ee Stil Nia ec i RN Ti TR ik Faas Pic AN AST RES APE 8 ROBE FS Rice dove Dine ,

38a

* partment of Justice ‘pointed out ‘that only a ‘iuinens
s¢ruple against participation in war in any form can .
support a ‘claim for conscientious objector status, cit-

ing United States v. Kauten, 2 Cir., 1943, "133 F. 2d

703.17 The Department of Justice said that the regis-

‘trant had not consistently ‘manifested his conscien-
tious objector claim and had not shown overt mani-
festations sufficient to establish ‘his. subjective belief

where his claim was not asserted until military serv-

ice became imminent, not having been made at all
prior to being reclassified 1-A in February 1966, and

cited’in support thereof Campbell v. United States, —

4 Cir., 1955, 221 F. 2d 454, and United States v. Cor-
liss, 2 Cir., 1960, 280 F: 2d 808, cert. denied, 364 U. S.
884, 81 S. Ct. 167 (1960). Numerous statements by the
registrant made from time to time were quoted by
the Department of Justice in-justification of its rec-
~ommendation against the registrant's conscientious
objector claim."

God or Jehovah or Allah we will continue y pray and
we hope’ that every day another plane falls out of the
sky.’ im : =
“S ‘Bratcher said in the -presence of white officers and

white inmates, to another colored inmate, “This goddam ©
Jesus Christ has got to go. -He has served the purpose .

of the _—, long enough. ”* (Testimony of A. J
__- —--—~Mfeyer:)” ,
The Deperinent of Justice’s letter said in part: “It seems clear
that the teachings of the Nation of Islam preclude fighting for
the United States not because of objections to participation in
» war in any form but rather because of political and racial objec-
tions to policies of the United States as interpreted by Elijah
Muhammad.” (Letter p.. 10.)
18 The special hearing officer quoted the following passage from
the registrant’s letter to the local board dated February 14, 1966:

“3. That I am a devoit Muslim and a follower of Islamic :

religious faith under the discipline of the prophet Elijah
. Muhammad. To bear arms or kill is against my religion
and I conscientiously object to any combat military service
that involves the participation: in any war in which the lives

no personal quarrel with those Vietcongs. .
, ; * *
“Let me tell you,,. we Muslims are taught to defend ourselves
when we are.attacked. Those Vietcong are not attacking
me. These Vietcong are fighting a very nasty. war over
there. There is a lot of people getting killed. -Why. should
we Muslims get involved? Besides, I am fighting for the
government every day. I am laying my life on the line for
the goverriment. Nine out of ten soldiers would not want
to be in my place in the ring. It is too dangerous.”
12The Third Circuit recently rejected the claim of a Roman .
Catholic for -conscientious objector classification who said he
would fight only in a “just war” and that denial of such classifi-
cation would violate his federally protected right to religious
freedom and equal: protection of the law. United States v. Spiro,
3 Cir., 1967, 384 F. 2d 159, cert. denied, — — Baer FF %
Ct. gi28 (1968).

te i a Casein gabe Pea nas Teg wD
eae -—
- - a
‘
-* ‘ : -

Yo

%

‘There was more than adequate ‘evidence to justify
the rejection of his claim.
Pd ‘
.: . THE BILL ‘OF ATTAINDER
-The Constitution prohibits the: passing of a bill of
attainder by’ Congress, Art. I, § 9, Cl. 3, and a bill of |
attainder is said to be a legislative act which inflicts
punishment without a judicial trial. Cummings v, The
State of Missouri, 71 U. S. (4 Wall.) 277 (1867). As |
interpreted ‘by the. Supreme Court, this clause pro-
hibits all legislative acts ¢‘no matter what their form,
that apply either to named individuals or to easily
; ascertainable members ofa group in ‘such a way as
* to inflict punishment on them without a judicial trial
-.... United States v. Lovett, 328 U. S. 303, 315, 66
: &. Ct. 1073, 1078 (1946). Accordingly, appellant con-
.tends that the whole proceeding of his élassification
..-. and induction into the military service constituted a
ws prohibited bill of attainder. The only issue submitted
to the jury at his trial was whether he refused‘to take
the step forward at the induction cerernony. Appel- -
lant contends in brief that “Every important factual ~
adjudication was extra’ judicially made by adminis-
trative bodies operating under the Act.” Since the
draft board’s authority flows from congressional en-
actment, appellant argues that Congress thas sub-
jected him to ‘a ‘non-judicially imposed penalty in a
non-judicial forum. He maintains: that he was classi-
fied without a judicial trial.

a ASO Biota he cilitis # CPT.

So far as the trial proceedings before the District
Court are concerned, there was no irregularity or fail-
ure to provide due process of law. The District Judge

informed ‘the jury that he had examined the defend-
‘ant’s Selective Service File and found, as a matter of

law, that there was.a basis in fact for the 1-A classi-
fication given the registrant. The jury was instructed

that it was not to consider the question of whether

or not the defendant was entitled to this classification
for this determination was not for the jury. This

ruling and instruction was in exact conformity. with .

the Supreme Court’s teaching in Cox v. United
States, 332 U. S. 442, 452, 453, 68 S. Ct. 115, 120
(1947), where the Court said: - 7 |

“Whether there was ‘no basis in- fact’ for-
the classification is not a question to be de-
termined by the jury on an independent con-
‘sideration of the evidence. The concept of a.
jury passing independently on -an issue pre-
viously determined by an administrative body
ot reviewing the action of- an administrative
body: is contrary to settled federal administra-
tive practice; the constitutional right to jury
trial does not include the right to havea jury.
-pass on the validity of an ‘administrative or-
der.”’ .
| \
Proceedings-beforé local and appeal boards are in-
formal and are stripped of the panoply of formal ju-
dicial tribunals. United States v. Pitt, 3 Cir., 1944, 144
F. 2d 169, 172. Such proceedings are non-judicial in

‘nature and are clearly non-criminal, for appellarit’

seit gl

0S Pecdae

«

. _ was ‘neither a suspect nor an. accused and he was ap-.
pearing before the. boards which were giving him a. .

hearing only in an administrative proceeding. United
States v. Sturgis, 3 Cir., 1965, 342 F. 2d-328, 332. It is
trué@ that appellant sought a judicial determination of
his case prior to induction, and “the, decision was ad-
~~ verse in every tribunal to which he presented this
' issue. The Sixth Circuit, in declining to grant him an

injunction pending his appeal from the decision of the

Kentucky Federal District aur, said:

“We do not believe that Congress ever intend? :
- ed that draftees should have the right to liti-
gate the validity of their induction before ac-
ceptance for National Service. If injunction
- suits were permitted, interminable delays |
Would undoubtedly regult while the ‘cases
were being processed in the Courts. Such a
4 procedure—would ‘interfere with the orderly
proceedings of the draft boards and prevent _
them. from filling their quotas and supply-’
ing the armed forces with much needed per-
. sonnel.’?’ Muhammad Ali v. Breathitt, 6 Cir.,
April 17, 1967, ae No. 17834, unpublished,

Similar relia?’ was also denied py the Fifth Circuit

by its numerous orders to which we have previously °

, referred.

The most recent amendment to the draft law (new
called the Military Selective Service Act of 1967)
‘permitsgudicial review only “as a defense to a crim-
inal prosecution instituted. . .after the registrant has

ts ¥

44a

responded either affirmatively or fiegatively to an
order to report for induction.’ The amendment.
was undoubtedly Congress’ answer to the holding in
Wolff v. Selective Service Local Board No, 16, 2 Cir.,
1967, 372 F. 2d 817, in which the Second Circuit up-
held preinduction judicial: review" of a selective
service classification which allegedly infringed upon
the constitutional ‘right to free speech. That case
involved the reclassification of deferred students,
making them. available for military duty because of
participation in Viet Nam. Preinduction -_considera-
tion was afforded petitioners on the narrow consti-
tutional ground that the reclassification would have
a continued chilling effect, Dombrowski v. . Pfister,
380.U. S. 479, :85 S. Ct. 1116 (1965), on them by being
subjected to the added sanction of induction. It is

2050 U.S.C. App. §° 460(b)(3), as amended in 1967, reads as
follows:
“No judicial review shall be made of the classification or
_ processing of any registrant by local boards, appeal boards,
or the President, except as a defense to a criminal prosecu-
tion instituted under section 12 of this title, after the regis-.
trant has responded either affirmatively or negatively to
an order to report for induction, or for civilian work in the
case of a registrant determined to be opposed to partici-
’. pation in war in any form: Provided, That such review shall
go to the question of the jurisdiction herein reserved to
local boards, appeal boards, and the President only when there
is no basis in fact for the classification assigned to such
registrant.”
21“While theré was no serious question that eventua.ly peti-
tioners would be able to secure review, Wolff is the first case
allowing direct judicial review of a registrant’s classification
prior to induction. It had been held almost without exception
that aggrieved registrants could not challenge the determina-
tions of ‘their local boards in ‘the courts except by either submit-
ting to induction and seeking habeas corpus relief, or by refusing
induction and sécuring review by way of a defense to a criminal .
prosecution.” Comment, 81 Hary. L. Rev. 685, 686 (1968).
The Government did not file a petition for certiorari in the
Wolff case.

»
<>

45a

clear by the 1967 amendment to the Act that, Con-..

gress intends there be no preinduction judicial pro-
ceedings which would interfere with. the orderly

drafting of needed manpower for the armed forces. .

DuVernay v. United States, 5 Cir., 1968, .... F. 2d
Siac anf February 7, 1968]. Judicial review
prior to indu¢tion, even on constitutional grounds,
'-is an open invitation to a large volume of litigation,

, . Much of which we could expect would undoubtedly be

based on frivolous grounds in an attempt to delay
or evade military service. As the Supreme Court
said in Falbo v. United States, 320 U. S. 549, 554, 64
S. Ct. 346, 349 (1944):

“The circumstances under which the Act was

adopted lend no support to a view which = -

would allow litigious interruption of the proc-
ess of selection which Congress created. To
meet the need which it felt for mobilizing na-
tional ‘manpower in the #hortest practicable
period, Congress established a machinery —
which it deemed efficient for inducting great
numbers of men into the armed forces. Care-
ful provisions were made for fair administra- _
tion of the Act’s policies within’ the frame-
“work of the selective service process. But
Congress apparently regarded ‘a prompt and
unhesitating obedience to orders’ issued in
that process ‘indispensable to the complete:
attainment of the object’ of national defense.
Martin v. Mott, 12 Wheat. 19, 30, 25 U. S. 19,
30, 6 L. Ed. 537. Surely :: Congress had in-’
tended to authorize interference with that:

iene sells Shi Dalai oY Qa ONG LPNS

PRI er

aie
46a
process by intermediate challenges of orders -

to report, it would have said so.”

The registrant’s remedy is in defense to a4 criminal
prosecution if he declines induction, and habeas cor-

¢ pus if he accepts induction but is still aggrieved by

the classification process. Witmer v. United States,
348 U. S. 375, 377, 75 S. Ct. 392, 394 (1955).

In the present matter the registrant fully exhaust-
ed all administrative rémedies available to him. In

. that respect the case differs from DuVernay v. Unit-

ed States, 5 Cir., 1968, .... F.2d .... [No. 24132,

‘ February 7, 1968], where we affirmed the conviction

of DuVernay because of his failure to exhaust ad-
ministrative remedies. We also pointed out in foot-
note 6 of that case (.... F. 2d :...) that as to the

attack on the racial composition ‘of the local board,

since draft board members are public officers ap-
pointed by the President, a challenge to the composi-

tion of the board indirectly challenges the qualifica-

tions of the present members and their eligibility to
perform their duties. We said that the public officers’

“In Schwartz v. Strauss, 1953, 206 F. 2d 767, the Second Circuit
affirmed on the opinion below (114 F. Supp. 438) the District
Court’s denial of relief to.a plaintiff who sought a preinduction
declaratory judgment and an injunction “claiming that his selec-
tive service classification is erroneous as a matter of law and
that he is thereby deprived of certain constitutional rights.”
The District Court said “that there are many authorities that

_ do not permit judicial review before induction” and that “the

Congressional intent was to keep the administrative process of
the Selective Service System free from the delays and disruption
incident to court interference prior to induction.” The Court said
that “plaintiff's remedy is by ‘way of habeas corpus after induc-
tion or by. refusing to be inducted after the administrative
process is complete.” 114 F. Supp. at .439..

’ ~ © 4 &. e
47a 3

authority was not subject to collateral attack int) the
criminal proceeding but must be challenged by di-
rect attack. DuVernay’s conviction, however, was

not affirmed on that issue but on the failure of the —

draftee to exhaust administrative remedies. While
it is true that qualifications of a public officer gen-
erally may not be collaterally attacked; the charge
of systematic exclusion of Negroes from draft boards
in this case, where all administrative remedies have
been exhausted, is of constitutional proportions and
warrants our consideration and disposition of that is-
sue. We do not view appellant’s contention ‘here as
_ requiring the removal of draft board members be-
* cause of so-called systematic exclusion or racial im-

balance, but that appellant seeks to have their acts |

declared invalid as to him. It is apparent that the
‘systematic exclusion contention must, therefore, be.

decided: Accordingly, we have given full considera-
tion to that contention, now urged"in-this criminal —

proceeding,* though we believe it is not applicable in-

sofar as. draft board membership is concerned, and,.

at the least, that the acts of such boards are de facto
valid and binding. United States v. Commonwealth

of Pennsylvania, D. C., W. D. Penna., 1963, 214 F.

Supp. 913; United States v. Lindsley,.7 Cir., 1945, 148
F. 2d 22, cert. denied, 325 U. S. 858, 65 S. Ct. 1195
(1945). There is no question involved here of the
board acting beyond its jurisdiction in classifying and
attempting to induct appellant who, under the Act
and regulations, is clearly a proper subject for mili-
- tary service in the armed forces of the United States.
Since under the Act and the settled law the system-

ii

TENDEO RITA RINT Tet

— 48a

atic exclusion ,contention may not properly be raised
prior to induction, we have concluded that it is rea-
sonable, all administrative and other remedies hav-
ing been exhausted by appellant, that we meet the
issue squarely and resolve it, which we have done.”

There is ho merit to the bill of attainder argu-
ment as we have seen.

The conviction and sentence are, therefore, AF-
FIRMED. + oe

23 Appellant raised another issue which is without merit. He
claimed, deprivation of due process because of the inclusion in his
Selective Service File of numerous letters and newspaper clip-
pings alleged to be prejudicial, and also because of pre-final clas-
sification statements of General Hershey, the National Director,
and Congressman Rivers, Chairman of the House Aymed Services
Committee.- We have heretofore described the statements of
General Hershey and Congressman Rivers in Chapter II of this
opinion. The record shows quite clearly that it is the practice
of local boards to place all corresponderice relating to a regis-
trant in his file. A number of letters and clippings from mem-
bers of the general public protesting the delay in inducting ap-
pellant were received by the board and filed. - The record is
devoid of any indication that these letters and clippings played
any part whatsoever in’ the ultimate classification of appellant.
That is also true of the statements of the General and Congress- \
man. As to General Hershey's stdtement, we have already shown
that board is independent of the National Director -as provided
in 32 C.F.R. § 1604.6(a), (b), (c), and it was General Hershey
who caused an appeal of registrant’s case to the Presidential
Appeal Board. Obviously it js the right of Congressmen to ex-
press opinions on matters of public interest, including registrant’s
draft case. But nothing in the record of this case shows that
Congressman Rivers’ statement had any effect on the classifi-
cation of appellant.

Adm. Office, U. S. Courts—E. S. Upton Printing Co. N. O., La

bd

49a -

—- and Order Denying Rehearing

This cause came on to be heard on ‘he transcript of the
‘record from the United States District Court for the South-
ern District of Texas, and was argued by counsel;

On Consideration Whereof, It is now here ordered and
adjudged by this Court that the judgment of the said Dis-
trict Court in this cause be, and the same is hereby, affirmed.

— May 6, 1968
Issued as. Mandate: \

On Petition for Rehearing En Banc
(June 6, 1968)

Before Coteman, ArxswortH and Dyer, Circuit Judges:

Per Curiam:

The Petition for Rehearing is , Desied and no member
of this panel nor Judge in regular active service on the
Court having requested that. the Court be polled on, re-
hearing en banc, Rule 25(a), subpar. (b), the Petition for
Rehearing En Banc is: Denied. ~

50a

5
e

Transcript on District Court’s Oral Findings
(Rendered June 20, 1967 ; Record, 239- 44)

The Court: -

Well, I have read the draft board file and I ~~ waded
the conclusion theré is ample evidence in the file to sup-
- port the action of the draft board: Mr. Covington has
said basis in fact must be found in the draft board | file, |
and I think it is found here.

- Now, just, to summarize some of the evidence that I
find that I conclude does support the action of the draft
board, first I want to describe the file. I am doing this
for the record, not because counsel on either side need it -
described for them. You know it as well as I do. It’is not
the neatest of files. There are many pages in it. To begin
' with there is I think.the main portion of the file, just a
group of loose sheets in the file and they are not arranged
chronologically. They are numbered for convenience and.
identification consecutively as they appear in that file; but
they are not in any chronological or other logical form,
logical sequence.

I will ask that. we have order in the courtroom. I do
not intend to be facetious and what I say is not calculated
to inspire laughter and what I had to say is serious. At
least it is serious to me and I am sure it is serious to.
the Defendant and I hope it is serious to prosecution.

I am going to refer to these pages by the pencil figures
that appéar thereon. In other sections of thé file there is
pointed out there is quite a volume of ‘petitions signed by
brothers ‘of the Defendant’s religious faith. Most ‘of them
are on mimeographed forms. There are some variations in

_ ola

-the forms.. You. will find one form an identical form with
many signatures on those petitions, and then another form.
I read the various forms and observéd -that there are quite
a number of signatures. I will take counsel’s word for the
number of signatures appearing thereon. I did net count
the. signatures. I did observe there are quite a volume
- of them. * |

Then there are those other miscellaneous—what Mr.
Covington has referred to and I refes to as crank let-
ters of people advising the Wraft boardswhat to do, just as I

have received many advising me what I should do. I did not.
" even read them. I have asked my secretary to file them
according to states. If we ever have to refer to them,
we will refer to them in that way. I don’t anticipate that
we: will. aes: :

I will say for the record out of the presence of the
jury that I have received quite a volume of what I-call
crank mail and have received some telegrams. Most of
them start off ‘with the statement that they are not pre-
suming to tell me what to do, and then they proceed to -
_ do that. That is the form of most of the letters I receive
asking for jury excuses. In paragraph 1 they protest how
concientious they are of their civic responsibility. and in
paragraph 2 why they don’t want to serve. 7

Proceeding further, in referring to matters in the file
which I believe prove the basis in fact for the action of¢
the draft board, and I’m not referring to any crank let-
ters, I am not referring to newspaper clippings, and again
I want to‘say that these letters are not arranged chrono-
logically and I am referring to them in the order in which
they appear in the file, which is not a chronological order.

On page 260 is a letter dated October 19, 1966. This was
after the Defendant has made his claim for ministerial

—_-

SEPALS SESE: AOS HN, AEN

52a

exemption. It is a typewritten letter and it is signed by

the registrant, the Defendant himself, and in that letter
addressed to the draft board he asks leave to go to Mexico ©

to negotiate a fight and to observe his ‘prospective opponent

in action. He didn’t say anything in that letter that he was

going there to preach the word of Allah or to seek converts,
but his request to- leave the country to go to Mexico
was to negotiate a fight and to observe his prospective op-
ponent in action. I think that would give some support to
the finding of the draft board that he.was a ee |
boxer as he claimed to be. .

Then on page 467 is another. letter, Viiuaiihin letter,
signed by the registrant, the Defendant Clay, dated July ;
7, 1966. This letter was before his claim for ministerial
exemption. The previous one was:after. In that letter he
asked leave to go to England to defend his world heavy
weight championship and he also advised in that letter he

. would later want to go to ws to defend his title

there.

But again in the letter to the draft board the proposition
of his projected visits out of the country to England and
to Germany to defend his heavy weight championship.
Again,;he made no mention that he was going to those
countries or that he would be going to those countries
to preach the word of Allah.

Then at page 458 is another letter, typewritten and
signed by registrant, Defendant Clay, dated August 8,

1966, which was a short time before he made his claim for

ministerial exemption. In that letter he asked leave to go.
to Germany to defendant [sic] his world heavy weight
championship there. He stated in his letter previously that

he would have such a request. In July he told them he

would have a request to go to. Germany and; true to his

58a

‘word, he did have such a request to go there, and why, to
defend his world heavy weight championship there. Again,
_ the request was not to:gd there for the —— of preaching
e word of Allah. — \
Then page 474 is another letter in his own ‘hansweiting
. signed by the registrant, Defendant Clay. This letter is

- April 26, 1966, and in this letter he asked to go to
. England ‘to defend his world heavy *weight boxing title.
Again, no mention that he wanted to go there to ‘Preach
the word of Allah. ;

At page 491 is another letter in his own handwriting
and signed by the registrant, Defendant Clay, dated March
17, 1966, in which he protests the reclassification by the
draft board and in his letter he states the reasons he does ~
so protest. He protests his reclassification for the reason
that the reclassification has and does at this time impose
great hardship upon me as heavy weight champion of the
world now at age 24. He asked the draft hoard to reconsider
his classification. That is his protest, because of hardship.
He says nathing there about a ministerial exemption.

Then at page 504, letter dated April 16, 1966 “in his
handwriting, signed by the registrant, Defegdant.: Clay.
- This is a month later than the previous = Again,
he protests his reclassification for the following reasons:

A, he says he is the sole support of his mother. B, be-
cause he hail just gone’ through an expensive divorce and
made a settlement of $150,000 on his wife and was required
to pay her $1250.00 per month alimony, the conclusions. be-
ing he couldn’t do that on a soldier’s pay. But, again, he -
protests his reclassification for entirely different reasons.
I don’t know why he didn’t think then to claim that he was
_ a minister, but he did not.:

Then at page 524 appears another letter dated February
14, 1966, in his own handwriting. The letter is signed by

d4a
the ‘registrant, Defendant Clay. He protests his reclassi-
fication for the following reasons: _ }

One, my occupation is professional boxer—and he goes
on with that explanation. Two, that he married August 14,.
1964, divorced January 11, 1966 because his wife failed
‘to comply with her premarital agreenient as to , the
tenets of the Muslim faith: Then a divorce was expense.
Three, that he is a devout Muslim and has convictions also
- against killing or bearing arms: Now, in this letter he pro-
tests His Muslim faith, his Muslim religion, but he does not |
say that he is a minister. He says that his marriage broke
up because his wife did not follow through with her pre-
marital agreement with the tenets of his faith, the Muslim
faith, and then he says that he is a devout Muslim and has
conscientious scruples against killing or bearing arms, but
he makes no claim to being a minister.

Now, wé are well aware that the Selective Servi ice Act
"recognizes conscientidus objectors. : As" I remember it, a
conscientious objector may be assigned ‘to non-combatant
duty in the armed forces of the United States or she may
be assigned to work of national importance under civil-
ian direction. But that problem has neverbeen brought to
you. I don’t think he has said in so many words, “I am an
conscientious objector, I do not believe in killing or bearing”
_arms and therefore I want to be assigned to non-combatant ~
duty or. to work of national importance under civilian direc-
_ tion.” : ;

I think the basis i in fact for the action of the draft board
is amply supported by the evidence appearing in the file,
and I find that there was basis in fact for such action. I _
deny the motion for aequittal upon all of the grounds as-
serted.

It is now five minutes after four. How much time will
you gentlemen want to present your arguments? "

58a

Pertinent Texts of Constitutional and Statutory e
Provisions and Regulations Involved vy

United States Constitution — | Aye ae, £
Article I, §9, el. 3:

“

No Bill of Attainder or ex post facto Law shall be i

- passed. | | : 7 i
Amendment I:., ; ;
; Congress shall make no law respecting, an. establish- i

ment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech, or of the
press ; ; or the right of the people peaceably to assemble,

. and to petition the Government for a redress of griev-_
ances.

Aswaineit Vv:

bs 4

No person shail be held to answer for a*éapital, or
otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury, except in cases arising in
the land or naval forces, or in the Militia, when in
actual service in time of War or’ public danger; nor
shall any person be subject for the same offence. “
to be twice put in jeopardy of life or limb; nor ‘shall
be compelled in any criminal case to be a witness
against himself, nor be deprived of life, liberty, or
property, without due process of law; nor shall private

property be taken. for public use, without just ‘com-
pensation.

*
LOR OOP LILIAOGP ED BI SEP LA” GPE AOE AE MIO OE AOE IN EDIE -
» °

*
in anette ie eh aia Lee ae

PSE a eee

56a

Amendment XIV, §1:

All persons born or naturalized in the United State S,
and ‘subject to the jurisdiction thereof, are citizens of
the United States and of the State wherein they reside.
No State shall make er enforce any law which shall
abridge the privileges or immunities of citizens of the .
United States; nor shall any State deprive any person
of life, liberty, or propéefty, without ‘due process of
law; nor deny to any person within its jurisdiction
the nan protection of the. laws.

Universal Military Training and Service Act, as appearing
in 50 U. S. C. App. §§451-63 immediately prior to the
adoption of the Military Selective Service Act of 1967:

§451(c) :

The Congress further declares that in a free soci¢ty
the obligations and privileges of serving in the armed
forces and the reserve components thereof should be
shared generally, in accordance with a system of selec-
tion which is fair and just, and which is consistent with
the maintenance of an effective national economy.

sasecs) :

The selection of persons for training. and service
under section-4 [section 454 of this Appendix] shall be
made in an impartial manner, under such rules and
regulations as the President may ‘prescribe, from the
persons who are liable for such training and service and
who at the time of selection are registered and classi-
fied, but not deferred or exempted: Provided, That
in the selection of persons for training and service
under this-title [sections 451-454 and 455-471 of this

—5Ta

Appendix], and in the interpretation and execution
of the provisions of this title [said sections], there
shall be no discrimination against any — on ac-—
count of race or color . |

§456(g).: /

Regular or duly ordained ministers of religion, as
defined in this title [sections 451-454 and 455-471 of |
this Appendix], and students preparing.for the minis-
try under the direction of recognized churches or re-
ligious organizations, who are satisfactorily pursuing

full-time courses of instruction in recognized theologi- :
eal or divinity schools, or who are satisfactorily pur- ©— —*~~-
_ suing full-time courses of instruction leading to their
entrance into recognized theological or divinity schools
in which they have been pre-enrolled, shall be exempt.
from training and service (but not from registration) t
under this title [said sections].

§456()): | j |
Nothing’ contained in this title Csertions “451-454 :
and 455-471 of this Appendix]‘shall be construed to q

require any person to be subject to combatant train-
ing and service in the armed forces of the United
States who, by reason of religious training and belief,
is conscientiously opposed to participation in war in
any form. Religious training and belief in this con-
nection means an individual’s belief in a relation: to
a Supreme Being involving duties superior to those’
arising from any human relation, but does not include
essentially political, sociological, or philosophical views
or a merely personal moral code. Any person -claim-

c8

58a

ing exemption from combatant training and service

because of such conscientious objections whose claim

is sustained by the local board shall, if he is inducted
into the armed forces under yhis title [said sections],
be assigned to noncombatant :service as defined by the
President, or shall, if he is found to be conscientiously
opposed to participation in such noncombatant serviee,
in lieu of such induction, be ordered by his local board,
subjéct to such regulations as the President may pre-
scribe, to perform for a period equal to. the period
prescribed in section 4,(b) [section 454 (b) of this
Appendix] such civilian work contributing to the main-
tenance of the national health, safety, or interest as
the local board may deem appropriate and any such

person who knowingly fails or neglects to obey any

such order from his local board shall be deemed,

for the purposes of section 12 of this: title [section

462 of this Appendix], to have knowingly failed or

“neglected to perform a duty required of him under -

this title [sections 451-454 and 455-471 of this Ap-
pendix]. Any person claiming exemption from com- —
batant training and service because of such conscien-.

‘tious objections shall, if such claim is not sustained by

the local board, be entitled to an appeal to the appro-
priate appeal board. Upon the filing of such appeal, the
appeal board shall refer any such claim to the De-
partment of Justice for inquiry and hearing. The
Department of Justice, after appropriate inquiry,
shall hold a hearing with respect to the character and
good faith of the objections of the person concerned, |
and such person shall be notified of the time and place
of such hearing. The Department of Justice shall,

59a

- after such hearing, if the objections are found to be
sustained, recommend to the appeal board that (1) if

the objector is inducted into the armed forces under

this title [said sections], he shall be assigned to non-
combatant service as defined by the President, or (2)
if the objector is found to be conscientiously opposed
to participation in such noncombatant service, he shall
in lieu of such induction be ordered by his local board,
subject to such regulations as the President may pre-
-seribe, to perform for a period equal to the period

prescribed in section 4 (b) [section 454 (b) of this

Appendix] such civilian work contributing to the main-
tenance of the national health, safety, or interest as
the local board may deem appropriate and any such
person who knowingly fails or neglects to obey any
such order from his local board shall be deemed, for
the purposes of section 12 of this title, to have know-
ingly failed or neglected to perform a duty required
_ of him under this title [sections 451-454 and 455-471
of this Appendix].

§460(b) (3): : *

. (3) to create and establish within the Selective Ser-
vice System civilian local boards, civilian appeal
boards, and such other civilian agencies, including

agencies of appeal, as may be necessary to carry out

its functions with respect to the registration, exami-
nation, classification, selection, assignment, delivery
for induction, and maintenance of records of persons
registered under. this title [said sections], together
with such other duties as may be assigned under this
title [said sections]. He’shall create and establish one
or more local boards in each courity or political sub-

ques

ee ee ee

60a

division corresponding thereto of each State, Terri-
tory, and possession of the United States, and in thie
- District of Columbia. Each local board shall consist

of three. or more members to be appointed. by the -
President from recommendations made by the respec-" ©

tive governors or comparable: executive officials . . ..
No member of any local board shall be a member of

the armed forces of the United States, but each mem- -
ber of any local board shall be a civilian who is a _

citizen of the United States residing in the county or
political subdivision corresponding thereto in which
such local board has jurisdiction, and each intereounty
local board shall have at leagt one member from each
, county ° or political subdivision corresponding thereto
‘included within the intercounty local board area. Such
lotal boards, or separate panels thereof each consist-
ing of three or more inembers, shall, under rules and
regulations prescribed by the President, have the power
within the respective jurisdictions of such local boards
to hear and determine, subject to the right of appeal
to the appeal boards herein authorized, all questions

or claims with respect to inclusion for,-9r exemption
or deferment from, training and service under this
title [said sections], of all individuals within the juris-
diction of such local boards. The decisions of such

local board shall be final, except where an appeal is_
authorized and is taken in accordance with such rules"

and regulations as the President may prescribe. There
shall be not less than one appeal.board located within
the area of each Federal judicial district in the United

States and within each Territory ‘and possession of:

the United States, and such additional separate panels
thereof, as may be prescribed by the President. Ap-

6la

peal boards within the Selective Service System’ shail ~
‘be composed of civilians who are citizens of the United -
States and who are not members of the armed forces.
The decision of such appeal boards shall be final in
cases before them on appeal unless modified or changed
~ by the President. The President, upon appeal or upon .
his own motion, shall have power to determine all
claims or questions with respect to inclusion for, or
exemption or deferment from training and service
under this title [said sections], and the determination —
of the President shall be. final. No ‘person ‘who is a pa
civilian officer, member, agent, or employee of the |
Office of Selective Service Records or the Selective
Service System, or of any local board or appeal board . - &
or other agency of such Officer or System, ‘shall be :
excepted from registration or deferred or exempted
from training and service, as provided for i in this title
[said sections], by reason of his status as such civilian
officer, member, agent, or employee .

§462(a):

(a) Any member of the Selective Service System or
any other person charged as herein provided with the
duty of carrying out any of the provisions of this title
_» [sections 451-454 and 455-471 of this Appendix], -or
the rules or regulations made or directions given there-
under, who shall knowingly fail or neglect to perform
such duty, and any person charged with such duty, -
or having and exercising any authority ‘under said
title [said sections], rules, regulations, or directions
who shall knowingly make, or be a party to the mak-
ing, of any false, improper, or incorrect registration,
classification, physical or mental examination, defer-

— :
th la i mint w ea Se le wel ah ER tarsi a

62a :

4

ment, induction, enrollment, or muster, and any per-
son who shall knowingly make, or be a party to the
making of, any false statement or certificate regard-
ing or bearing upon a classification or in support of
any request for a particular classification, for service
under the provisions of this title [said sections], or

rules, regulations, or directions made pursuant ther eto,

or who otherwise evades or refuses registration or
seryice in the armed forces or any of the soquronents
of this title [said sections], or who knowlingly coun-
sels, aids, or abets another to refuse or evade regis-
tration or service in the armed forces or any of the
requirements of this title [said sections], or of said
rules, regulations, or directions, or who in any man-
ner shall knowingly fail or neglect or refuse to per-

form any duty required ‘of him under or in the execu--
tion of this title [said sections], or rules, regulations.

or directions made pursuant to this title [said sec-

tions], or any person or persons who shall knowingly ©

hinder or interfere or attempt to do so in any way,
by force or violence or otherwise, with the adminis-
tration .of this [said sections] or the rules or regula-
tions made pursuant thereto, or who conspires to com-
mit any one or more of such offenses, shall, upon con-
viction in any district court of the United States of
competent jurisdiction, be punished by imprisonment

for not more than five years or a fine of not. “more

than $10,000, or by both such fine and imprisonment,
or if subject to military. or naval law may be tried by
court martial, and, on conviction shall suffer such. pun-
ishment as a court martial may direct. .

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63a |

Regulations ass
Selective Service Regulations, 32 C. F. R. Part 1600.

1600.735-1 Conduct Requirements in General. —(a) The
maintenance of unusually high standards of honesty, in-
' tegrity, impartiality, and conduct by Government employees
and special Government employees is essential to assure
the proper performance of the Government business and the
inaintenance of confidence by citizens in their Government.

(b) Employees of the Selective Service System shall con-
duct themselves in such a manner that the work of the
' System is effectively accomplished; shall be courteous, con-
siderate, and prompt i in dealing with or serving the public;
and shall conduct themselves i in both their official and per-
sonal lives in a manner that will not bring discredit or
embarrassment to the Selective Service System.

(c) Empley ees shall observe the applicable. laws and _

regulations governing participation in political activities ;
avoid any discrimination because of race, color, religion,
. national origin, or sex; economically utilize, protect, and
conserve Federal property entrusted to them; and conduct
all their official activities in a. manner thik is above re-
proach and free from any indiscretions or acceptance of
gratuities or favors which would cast doubt or suspicion
upon themselves or the administration of the Selective
Service System.

1600. 735-2 Definitions —Thé following definitions shall

govern in this interpretation of regulations in this ‘part.

(a) “Employee” means an officer or employee of the
Selective Service System including uncompensated: per-

Ab Whibteniecd os} 7 an Sox © an

sons, but does not include a special Government employee
or a member of the uniformed services, —

1604.1 Director of Selective Service —The Director of
' Selective Service shall be responsible directly to the Presi--
dent. The Director of Selective Service is hereby authorized
and directed:

.

(a). Tqa,prescribe such rules and régulations as he shall
deem necessary for the administration of the Selective Ser-
vice System, the conduct of its’ officers and employees,
the distribution and performance of its business, and the |
custody, use, and preservation of its records, papers, and
property.

(b) To issue such public notices, orders, and instructions
as shall be necessary for carrying out the functions of the
erapadie Service System..

1604.6 National Selective Service Anoud Board.

(b) The National Board is authorized and directed to ..
perform ‘all the functions and duties vested in the Presi-
dent by that sentence of section 10 (b) (3) of the Military
Selective Service Act of 1967, which reads as follows: “The
President, upon appeal or upon his own motion, shall have.
power to determine all claims or- questions with respect to
inclusion for, or exemption or deferment from training
and service under. this title and the determination of the
_ President shall be final.”

- 1604.11 Governor.—The Governor of each State is au-
thorized to recommend a person to be appointed -by the
President as State Director of Selective Service for his
State, who shall represent the Governor in all selective ser-_
vice matters,

~

65a

1604. 12 State Director of Selective Service. —Subject to
the direction and control of the Director of Selective Ser-
vice, the State Director of Sdlective Service for each State -
shall be in immediate charge of the State Headquarters for
Selective Service and shall be responsible for carrying out
the functions of the Selective Service System in his State.
The State Headquarters for Selective Service shall be an —
office of record for selective service operations only, and
no records other than selective service records shall be
inaintained in such office.

1604.21 Area... In each State which is divided into two
or more Federal judicial districts, except the. State of .
New York.and the City of New York, each State Director
‘of Selective Service shall establish for each such district
an — board area which shall comprise the entire dis- _
trict. . |

- 1604. 22 iedaeiaiiinaes and Appointment.—For each ap- —
peal board area an appeal board, normally of five members,
shall be appointed by the President, upon recommendation
of the Governor. The members shall be male citizens of
the United States who are not members of the armed
forces or any reserve component thereof; they. shall be
- residents of the area in which their board is appointed;
and they shall be at least 30 years old. The appéal board
should be a composite board, representative of the activi-
ties of its area, and as such should include one member

‘from labor, one member from industry, one physician, one. —

ag and, where applicable, one member oem agricul-
ture. .

: 1604.24 Jurisdiction—The appeal board shall have
Jurisdiction to review and to affirm or change any decision

wa 04 1 Stet lo Rath ianen it dave! ne

appealed to it from any local board in its area or any <le-
cision appealed from any local board not in its area when
‘such appeal is either transferred to it in, the manner pro-

vided in‘ these regulations, or is appealed -to it by,or on

behalf of any registrant whose principal place o ploy-
ment is located in its area or submitted to it in the manner
required by law. |

1604.25 Nieniitiattin. —No member of an appeal
board shall act on the case ofa registrant who is his first
- eousin or closer -relative, either by blood, marriage, or
'. adoption, or who is an employer, employee, or fellow em-
. ployee, or stands in the relationship of superior “or sub-
ordinate in connection with any employment, or is a part-
‘ner or close business associate of the member. If because

of such provision, or for any other reason, an appeal board |
cannot act on the case of a registrant, and there is no~

panel of the appeal board to which the case may be trans-
“ferred, the appeal board shall transmit such case to the
State Director of Selective Service for transfer to another
appeal board.

1604.52 Composition | and Appointment. —(a) - local:

board of three or more members shall be appointed for

each local board area by the President upon recommenda- :

— tion of the. Governor.

(b) A local board of three or more members, with at °

least one member from each county included within the

intercounty local board area, shall be appointed for each

intercounty local board area by the President upon recom-

- mendation of. the Governor. .- , |
—

67a

(c) The members of local boards shall be male citizens

of the United nine ae shall be residents of a county \

in which their local bgard has jurisdiction and who shall
also, if at.all practicable, be residents of the area in which
their local- board has jurisdiction. No member é6f a local
hoard shall be a member of the armed forces or any re-

‘serve component thereof. Members of local boards shall -

be at least 30 years of age.

1604.54 Jurisdiction—The jurisdiction of each local

board shall extend to all persons registered in, or sulsjeck,

to registration in, the area for which it was appointed. It

“ &
es
*
dis

shall have full authority to do and perform all acts withity ’

:
its — authorized by the selective service lay.”

1604.55 "Disqualification. —(a) No males of a local

board shall act on the case of a registrant who is his first
“cousin or ‘closer relation, either by blood, marriage, or

adoption, or who is an employee or employer, or who is a -
~ fellow employee, or stands in the relation of superior or,
subordinate in connection with any employment, or is'a
partner or close business assaciate of‘the member. If be-
cause of this provision a majority of a local board cannot
act on the case of a registrant, the local ‘board -shall re-:
. quest the State Divector of Selective Service to designate

another local board to which the registrant shall be trans-
ferred for action on ‘his case. 7

1622.1 General Principles of Classification.

(b) Classification is the key to selection and it must be
accomplished in the spirit of the Military Selective Service
Act of 1967, in which the Congress has declared “that in a
. free society the obligations and privileges of serving in the

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armed forces and the reserve components thereof should be

‘shared generally, in accordance with a system of selection -
which is fair and just, and which is consistent with the
maintenance of an effective national economy.”

(c) It is the local board’s responsibility to decide, sub-
ject to appeal, the class in which each registrant shall be
placed. Each registrant will be considered as available for
military service until his eligibility for deferment or exemp-
tion from military service is clearly established to the satis- .
faction of the local board. The local board will receive and
consider all information, pertinent to. the classification of a
registrant, presented to it. The mailing by the local board
of a Classification Questionnaire (SSS Form 100) to the
latest addréss furnished by a registrant shall be notice |
to the registrant that unless information is presented to
the local board, within the time specified for the return of
the questionnaire, which will justify his deferment or ex-
emption from military service the registrant will be classi-
fied in Class I-A.

(d) In classifying a registrant there shall be no diserim-
ination for or, against: him because of his race, creed, or
' eolor, or because of his membership or activity in any labor,
political, religious or other organization. Hach ie regis-
trant shall receive equal justice.

1622.14 Class I-0: Conscientious Objector Available
for Civilian Work Contributing to the Maintenance of the
National Health, Safety, or Interest.—(a) In Class I-O
shall be placed every registrant who would have been classi-
fied in Class’ I-A but for the fact that he has been found,
‘by reason of religious training and belief, to be conscien-
tiously opposed to participation in war in any form and

69a

to be conscientiously opposed to participation in both com-
batant and noncombatant training and service in the armed
forces.

(b) Section 6(j) of title . of the Universal Military
Training and Service Act, as amended, prov ides in part as |
follows:

“Religious training and belief in this connection
iueans an individual’s belief in a relation to a Supreme
Being involving duties superior to those arising from
any human relation, but does not include essentially
political, sociological, or philosophical views or a

merely persqnal moral code.”

1622.43 Class IV-D: Minister of Religion or Divinity
Student. —/( a). In Class IV-D shall be placed any registrant:

(1) Who is a regular minister of religion;
(2): Who is a duly ordained minister of religion ;

(3) Who is a student preparing for the ministry
under the direction of a recognized church or-retigious
organization and who is satisfactorily pursuing a full-
time course of instruction in a recognized theological
or divinity school; or

(4) Who is a student preparing for the ministry
under the direction of a recognized church or religious
organization and who is satisfactorily pursuing a full-
time course of instruction leading to entrance into a:
recognized theological or divinity school in which he
has been pre-enrolled.

| (b) Section 16 of the Military Selective ‘Service Act of
_1967, contains in part the following provisions:

A paint 6 te it wtb etd DL APO ahs any hae ce oe tm hte TH reais

70a

“Sec, 16. When used in this act— * * * (g) (1) the
term ‘duly ordained minister of religion’ means a per-
son who has been ordained, in accordance with the cere-
monial, ritual, or diseipline of a church, religious sect,
or organization established on the basis of a community
of faith and belief, doctrines and practices of a re-
ligious character, to preach and to teach the doctrines
of such church, sect, or organization and to administer .
_ the rites and ceremonies thereof in public worship, and
who as his regular and customary vocation. preaches
and teaches the principles of religion and administers .
the ordinances of public worship as embodied in the
ereed or principles of such church, sect, or organiza-
tion.

“(2) The term ‘regular minister of religion’ means
one who as his customary vocation preaches and teaches
the principles of religion of a church, a religious sect, |
or organization of which he is a member, without hav-
ing been formally ordained as a minister of religion,
and, who is recognized by such church, sect, or organiza-
tion as-a regular minister.

“(3) The term ‘regular or duly ordained minister of
religion’ does not include a person who irregularly or
incidentally preaches and teaches the principles of re-
ligion of ‘a church, religious sect, or organization and
does not include any person who may have been duly
ordained a minister. in accordance with the ceremonial,
rite, or discipline of a church, religious sect or organi-
zation, but who does not regilarly, as a vocation, teach
and preach the principles of religion and. administer
the ordinances of public worship as embodied in the
creed or principles of his church, sect, or organization.”

a

1622.60 Director May Direct That Eligibility for Par-
ticular Classification Be Disregarded.—The Director of
Selective Service, notwithstanding any other provisions
.of the regulations in this chapter, may direct that any
registrant shall be classified or reclassified without regard
to his eligibility for a particular classification.

1624.1 Opportunity to Appear in _Person.—(a) Every
registrant after his classification is determined by the
local board, except a classification which is determinéd

upon an appearance before the local board under the provi-—

sions of this part, shall have an opportunity to appear in
person before the member or members of the local board
designated for the purpose if he files a written request
therefor within 10 days after the local board has mailed
a Notice of Classification (SSS Form No. 110) to him.
Such 10-day period may not be extended. i

(b) No person other than a registrant shall have the
right to appear in person before the local board, but the
local board inay, in its discretion, permit any person to
appear. before it with or on behalf of a registrant: Pro-
vided, That if the registrant does not speak English ade-
quately he may appear with a person to act as interpreter
for him: And provided further, That no registrant may be
represented before the local board by anyone acting as at-
torney or legal counsel.

1625.2 When Registrant’s Classification May Be Re-
opened and Considered Anew.—The local board may re-
open and consider anew the classification of a registrant
(a) upon the written request of the registrant, the govern-
inent appeal agent, any person who.claims to be a depen-
dent of the registrant, or any person who has on file a

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‘written request for the current deferment of the registrant

in a.case involving occupational deferment, if such request
is accompanied by written information presenting facts
not considered ‘when the registrant was classified, which,
if true, would justify a change in the registrant’s classifica-
tion; or (b) upon its own motion = such action is based
upon facts not considered when the registrant was classi-_
fied which, if true, would justify a change in the regis-—
trant’s classification ; provided, in either event, the classi-
fication of a registrant shall not be reopened after the local
board has mailed to such registrant an Order to Report
for Induction (SSS Form 252) or an Order to Report for
Civilian Work and Statement of Employer (SSS Form
153) unless the local board first specifically finds there has”

been a change in the registrant’s status resulting from cir-

cumstances over which the registrant had no control.

1626. 23 Preliminary Review. —The appeal beard will
earefully check each file to determine whether all steps re-
quired by the regulations have been taken, whether the
record is complete, and whether the information in the
file is sufficient to enable it to determine the registrant’s
classification. If any steps have been omitted by the local
board, if the record is incomplete, or if the information is
not sufficient to enable the appeal board to determine the
classification of the registrant, the-appeal board shall re-
turn the file to the local board with a request for additional
inforniation or action... .

1626.24 Review by Appeal Board.—(a) The appeal
‘board shall consider appeals in the order in which they
are received unless otherwise directed by the Director of
Selective Service, in which event, they shall be considered

edna rete PA el 9 ONO es inh ANd Liles cea At a its ee li ti APA n a sant a at : — ‘i
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73a

in such order as the Director ot Releative Service shall
prescribe.

(b) In reviewing the appeal and classifying the regis-
trant, the appeal board shall not receive or consider any
information other than the following: |

(1) Information contained in,the record received
from the loeal board.

_ °(2) General information concerning economic, in-
dustrial, and social conditions. a

(3) Any advisory recommendation from the Depart-
ment of Justice under section 1626.25.

(4) Any reply to the recommendation of the Depart-
ment of Justice received from the registrant under
section 1626.25.

1626.25 Special siti When Appeal Involves
Claim That Registrant Is a Conscientious Objector. —(a)

‘If an appeal involves the question whether or not a regis-
trant is entitled-to be sustained in his claim that he is a

concientious’ objector, the appeal’ board shall tentatively
determine whether or not the registrant is eligible for .
classification in a class lower than Class I-O or in Class
I-O. If the appeal board finds that the registrant is eligible
for classification in Class I-O or in a lower class,.it shall
place him in the appropriate class,

(b) If the appeal board tentatively determines that the
registrant is not entitled to classification in either a class
lower than Class I-O or in Class I-O, it shall transmit the
entire file to the United States Attorney for the Federal
judicial district in which the appeal board has jurisdiction

74a

for the purpose of securing an advisory recommendation
from the Department of J ustice.

(c) No registrant’s file shall be forwarded to the United
States Attorney by any appeal board unless the record on
the Classification Questionnaire (SSS Form No. 100) shows
and the letter of transmittal states that the appeal board
reviewed the file and tentatively determined that the regis- ;
trant should not be classified in Class I-O or in a lower
class. Any file forwarded to the United States Attorney
without the information required by this paragraph shall
be returned to: the appeal board. Bes .

(d) Whenever a registrant’s file is forwarded to the
United States Attorney in accordance with paragraphs
(b) and (c) of this section, the Department of Justice shall
thereupon make an inquiry and hold a hearing on the.char-
acter and good faith of the conscientious objections of the
registrant. The registrant shall be notified of the time
and place of such hearing and shall have an opportunity
to be heard. If the objections of the registrant are found
to be sustained, the Department of Justice shall recom-
- mend to the appeal board (1) that if the registrant is in-
ducted into the armed forces, he shall be assigned to non-
combatant service, or (2) that if the registrant is found to
be conscientiously opposed to participation in such non-
combatant service, he shall in lieu of induction be ordered .
by his local board to perform for a period of twenty-four
consecutive months ciyilian work contributing to the main-
tenance of the national health, safety,-or interest. If the
Department of Justice finds that the objections of the regis-
trant are not sustained, it shall recommend to the appeal
board that such objections be not sustained.

FAT eae tale ea tea aca Re

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\ «
(e) Upon receipt of the recommendation of the Depart-
ment of Justice, the appeal board shall mail a copy thereof

to the registrant together with a letter advising the regis-

_ trant that, within thirty days after the date of such mail-
ing, he may file with the appeal board a written reply
concerning the recommendation of the Department of Jus-
tice. Upon receipt of the reply of the registrant or the
expiration ofthe period afforded him to make such reply,
whichever occurs first, the appeal board shall ‘determine

the classification of the registrant, and in its determination

it shall give consideration to, but shall not‘ be found to
follow, the recommendation of the Department of Justice.
The appeal board also shall give consideration to any reply

to such recommendation received from the registrant. The

appeal board shall. place in the Cover Sheet (SSS Form No.
101) of the registrant the recommendation of the Depart-
ment of J ustice, a copy of its letter transmitting a copy of
such recommendation to the registrant, and any reply to
such received from the registrant.

1627.1 Who May .Appeal to the President From Any
Determination of an Appeal Board. —(a) When either the
State Directors of Selective Service or the Director of Se-
lective Service deems it to be in the national interest or

‘necessary to avoid an injustice, he may appeal to the Presi- .

dent from any determination of an appeal board. He may
take such an appeal at any time.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1253%3A12. Public record. Not legal advice.