Brief for the United States — Ehlert v. United States

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SD SUNN . ci dncsctecsoseciveciocecocctccss 2

tute and regulations involved.................-....- 2

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ent:

|» I. A claim to conscientious objector status is not

fe entitled to Selective Service Board consideration

pt! if made after the mailing of an induction notice... 13

g A. The manifest purpose of the regulation was

to set an absolute time limit on claims

not based on emergent external events- - 17

B. This limitation on post-notice claims is au-

thorized by statute and does not conflict

with Section 6(j) of the Act_......._-- 27

II. Even assuming post-notice claims of conscientious

objection are entitled to board consideration, the

refusal to reopen was warranted in the present

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ih 6 CITATIONS

’ Cases:

0 Badger v. United States, 322 F. 2d 902..........__-- 20

Blades v. United States, 407 F. 2d 1897___.....__--- 22

Boyd v. United States, 269 F. 2d 607_......-._----.- 15, 31

Capobianco v. Inird, 424 F. 2d 1304, petition for

certiorari pending, No. 611, this Term________- 15, 20, 34

Clark v. United States, 236 F. 2d 13__..--.-.-_____- 30, 32

Dawis v. United States, 374 F. 2d 1___---------_-_-_- 16, 31

Dickinson v. United States, 346 U.S. 389____.___- 30, 34, 35

Dugdale v. United States, 389 F. 2d 482_____________ 16

Estep v. United States, 327 U.S. 114.__--____- 29, 30, 34, 35

Falbo v. United States, 320 U.S. 549__-_-___________- 29

Feuer v. United States, 208 F. 2d 719_......_---_-_- 15

406-547—70—1 7

2 ¥ere =e

Cases—Continued

Gillette v. United States, No. 85, this Term

Keene v. United States, 266 F. 2d 378

14,

15, 29, 30, 31, 32, 35

15, 1970

Straight v. United States, 413 F. 2d 263

United States v. Al-Majied Muhammad, 364 F . 2d 223. -

United States v. Bartelt, 200 F. 2d 385

United States v. Beaver, 309 F. 2d 273, certiorari

denied, 371 U.S. 951 14, 19, 24, 31

United States ex rel. Berman v. Oraig, 207 F. 2d 288. - 15

United States v. Blaisdell, 294 F. Supp. 1303

United States v. Bowen, 421 F. 2d 193

United States v. Brown, 129 F. Supp. 237

United States v. Broyles, 423 F. 2d 1299

United States v. Delfin, 419 F. 2d 226

United States v. Gearey, 368 F. 2d 144

15, 16, 17, 21, 22, 23, 24, 29, 30, 31, 33, 35, 38, 39

United States v. Gearey, 379 F. 2d 915, certiorari de-

nied, 389 U.S. 959 34, 38, 39

United States v. Helm, $86 F. 2d 434, certiorari denied,

390 U.S. 958

United States v. Hinch, 202 F. Supp. 696

United States v. Holmes, 426 F. 2d 915

United States v. Jennison, 402 F. 2d 51

United States v. Kanner, 416 F. 2d 522

United States v. Kroll, 400 F. 2d 923

United States v. Maine, 417 F. 2d 951

fh

@ases—Continued Page

United States v. Mohammed, 288 F. 2d 236, certiorari

SR ae es Ginn hsanaatasecaschat.csse 15, 32, 34

United States v. Nugent, 346 U.S. 1__..------.------ 29

United States v. Sandbank, 403 F. 2d 38, certiorari

GRR, SW Ws Sines Shoes <bebsn ow ek ee. dcee 15

United States v. Schoebel, 201 F. 2d $31---..-.-_-- 15, 21, 31

United States v. Seeger, 380 U.S. 163_--._----- 20, 21, 23, 30

United States v. Stafford, 389 F. 2d 215__-..--.----- 15, 22

United States v. Stoppelman, 406 F. 2d 127, certiorari

eye Rae 16, 22

United States v. Taylor, 351 F. 2d 228__....----. 15, 31, 32

Warren v. United States, 177 F. 2d 596, certiorari de-

UE, Ge Gn pienccris atten nnintanccocecce 24, 32

Welsh v. United States, 398 U.S. 339_.......----- 23, 30, 37

Witmer v. United States, 348 U.S. 375__..--...----- 30, 35

Statute and regulations:

Military Selective Service Act of 1967 (formerly the

Universal Military Training and Service Act), 65

Stat. 75, as amended, 81 Stat. 100:

50 U.S.C. App. 456(j)------- 2, 12, 17, 25, 27, 30, 31, 38

50 U.S.C. App. (Supp. V) 460(b)-_........-.-_. 28, 34

80 USA. Age. 90).................... nae 17

Air Force Regulation AFR 35-24 (March 25, 1969) - - 26

Army Regulation AR 635-20 (Jan. 1, 1970)__._____ 26

Coast Guard COMDTINST 1900.2 (Oct. 7, 1968)-. 26

Department of Defense Directive No. 1300.6:

BE Bh BE adaktnenninnnenncecnecnemennces 25, 26

Marine Corps Order MCO 1306.16B (June 18, 1969) - - 26

Navy Department, BURPERINST 1900-5 (July 18,

SR snctkdbccccncebhtSadcncdddccsncscennccase 26

Selective Service Regulations:

ih inne nisiieisan nem namnioniiie 28

Be ey tin ccccnnnendaccscucctucas 22

Ss HE Ms din ben dcnencéncasdnndnce ~

32 C.F.R. 1625.2... .- 3, 10, 12, 13, 16, 18, 22, 28, 32, 34

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SED adnondkusenntukdhaneeohaas 8

I isla scariaaaiemday lakes dedcia 28

pe A sb adneubencosdeedaucunddcconeuh

Miscellaneous:

Adcock, Fundamentals of Psychology (Penguin Books,

Executive Order No. 10594.

Freud, The Ego and the Id (Norton, 1962 ed.) -.--.-.--

James, Psychology (Briefer Course, Collier Books,

CO . }

Gn the Supreme Court of the Bnited States

Oocrosrer TERM, 1970

No. 120

Witi1aM Warp EHLERT, PETITIONER

v.

UnttTep STaTEs OF AMERICA

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH OIROCUIT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The en banc opinion of the court of appeals (A.

31-47) is reported at 422 F. 2d 332. The original

opinion of the panel of the court of appeals (A. 25-

27) is not reported. The district court did not render

a written opinion.

JURISDICTION

The judgment of the court of appeals (A. 48) was

entered on February 2, 1970. On March 16, 1970, Mr.

Justice Douglas extended the time for the filing of a

petition for a writ of certiorari to and including

April 3, 1970. The petition was filed on April 2, 1970,

(1)

2

and was granted on May 4, 1970 (397 U.S. 1074). The

jurisdiction of this Court is invoked under 28 U.S.0,

1254(1).

QUESTIONS PRESENTED

1. Whether the alleged maturation or crystalliza-

tion of conscientious objector beliefs after the mail-

ing of a notice to report for induction is, within the

intended meaning of 32 C.F.R. 1625.2, a circun-

stance over which the registrant had no control, per-

mitting his draft classification to be reopened at that

late date.

2. Whether in any event there was a “basis in fact”

for the local board’s refusal to reopen and reclassify

petitioner as a conscientious objector.

STATUTE AND REGULATIONS INVOLVED

50 U.S.C. App. 456(j), as in effect at the time this

action was commenced, provided in pertinent part:

Nothing contained in this title * * * shall

be construed to require any person to be sub-

ject to combatant training and service in the

armed forces of the United States who, by

reason of religious training and belief, is con-

scientiously opposed to participation in war in

any form. Religious training and belief in this

connection means an individual’s belief in a re-

lation to a Supreme Being involving duties

superior to those arising from any human rela-

tion, but does not include essentially political,

sociological, or philosophical views or a merely

personal moral code. Any person claiming ex-

emption from combatant training and service

because of such conscientious objections whose

claim is sustained by the local board shall, if

3

he is inducted into the armed forces under this

title * * *, be assigned to noncombatant serv-

ice as defined by the President, or shall, if he

is found to be conscientiously opposed to par-

ticipation in such noncombatant service, in lieu

of such induction, be ordered by his local board,

_ subject to such regulations as the President

may prescribe, to perform for a period equal

to the period prescribed in section 4(b) * * *

such civilian work contributing to the mainte-

nance of the national health, safety, or interest

as the local board may deem appropriate and

any such person who knowingly fails or ne-

glects to obey any such order from his local

board shall be deemed, for the purposes of sec-

tion 12 of this title * * *, to have knowingly

failed or neglected to perform a duty required

of him under this title * * *. Any person

claiming exemption from combatant training

and service because of such conscientious ob-

jections shall, if such claim is not sustained

by the local board, be entitled to an appeal to

the appropriate appeal board. * * *

32 C.F.R. 1625.2 provides:

The local board may reopen and consider

anew the classification of a registrant (a) upon

the written request of the registrant, the gov-

ernment appeal agent, any person who claims

to be a dependent of the registrant, or any per-

son who has on file a written request for the

current deferment of the registrant in a case

involving occupational deferment, if such re-

quest is accompanied by written information

presenting facts not considered when the regis-

trant was classified, which, if true, would

justify a change in the registrant’s classifica-

tion; or (b) upon its own motion if such action

is based upon facts not considered when the

registrant was classified which, if true, would

justify a change in the registrant’s classifica-

tion; provided, in either event, the classification

of a registrant shall not be reopened after the

local board has mailed to such registrant an

Order to Report for Induction (SSS Form No.

252) or an Order to Report for Civilian Work

and Statement of Employer (SSS Form No.

153) unless the local board first spevifically

finds there has been a change in the registrant’s

status resulting from circumstances over which

the registrant has no control.

Department of Defense Directive No. 1300.6 (August

21, 1962) provided :

Federal courts have held that a claim to ex-

emption from military service under the

UMT&S Act must be interposed prior to notice

of induction and failure to make timely claim

for exemption constitutes waiver of the right to

claim. Therefore, request for discharge after

entering military service, based solely on con-

scientious objection which existed but was not

claimed prior to induction or enlistment, cannot

be entertained. Similarly, requests for discharge

based: solely on conscientious objection claimed

and denied by Selective Service prior to induc-

tion cannot be entertained.

STATEMENT

After trial without a jury in the United States Dis-

trict Court for the Northern District of California,

5

petitioner was convicted of having refused to submit

to induction into the armed forces, and was sentenced

to two years’ imprisonment. His conviction was

reversed by a panel decision of the Court of Appeals

for the Ninth Circuit, one judge dissenting. On re-

hearing en banc, however, the conviction was affirmed

by an eight-to-five decision.

A. Petitioner first registered with his local board on

July 24, 1961, after reaching his eighteenth birthday

(F. 1). He made no claim to conscientious objector

status in his classification questionnaire (F. 7), which

he returned to the board on January 17, 1964 (F. 8).

On April 15, 1964, he was sent an order to report on

May 26 for his physical examination (F. 13); in re-

sponse he requested only that the examination be proc-

essed through a local board more convenient to his

new residence (F’. 14).

Petitioner’s induction notice was mailed to him

June 16, 1965, effective July 14 (A. 50). On

July 13, he mailed a letter to his board stating that

he could not accept induction and wished to apply for

conscientious objector status. He acknowledged that he

could no longer make such application as a matter of

right but invoked the discretion which he understood

local boards possess to reopen classifications. In his

letter, petitioner explained that he had been ‘‘unable

1%” refers to the printed appendix in this Court; “R.” to

the trial transcript, which was part of the record in the court

of appeals; “F.” to petitioner’s selective service file, which was

part of the record in both the district court and the court of

appeals, Both of the latter are part of the record in this Court.

406-547—70——2

6

to make 4 decision of such moment until faced with

the absolute necessity to do so’’ and that, since receiv-

ing his induction notice, he had “‘begun to be more

fully aware of the implications of military service at

this time,’’ The asserted nature of his objection was,

in essence, ‘‘that the sole purpose of military service

in this country today is preparation for a nuclear

orgasm which would be totally destructive of human

life and values” (A. 51).

On July 14, petitioner reported to the bus depot

from which inductees left for the induction center but

refused to go to the center. He was then told to report

to the office of his local board. There, he stated that

‘the was in the process of being a Conscientious Objec-

tor’’ and that he had mailed a letter “a couple days

ago” explaining his position. He was given an SSS

Form 150 to complete and return and was told that he

would hear from the board after his file was reviewed

upon receipt of his letter and the completed Form 10

(A. 52).

On his Form 150, petitioner struck out the para-

graph addressed to a claim of exemption only from

combatant training and service and also the para-

graph claiming exemption from both combatant and

noncombatant training and service (A. 54). He indi-

cated that he did not believe in a Supreme Being and

that he had no convictions which could be called re-

ligious in the commonly understood sense of the word

(A. 55). Instead, he stated that his claim was based

on a belief that ‘‘service in the armed forces of this

7

country at this time is work toward the end of the

destruction of the human race’’ and that his ‘‘duty

not to work for the destruction of the human race

is superior to any duties which may arise from any

human relation’ (A. 54). He allegedly did believe,

however, in the use of force ‘‘{u]nder any cireum-

stances in which the use of force would not make more

probable the destruction of the human race.” As to

the time period during which he acquired these

beliefs, petitioner stated it was ‘‘from September,

1960, to the present’’; also, he added, the ‘‘source and

the method have been the intellectual atmosphere of the

University of California and its surroundings and the

natural workings of an eager-to-know and question-

ing mind.’’ Never had he given any written or oral

public expression to his beliefs (A. 55).?

B. Following petitioner’s refusal to submit to induc-

tion, his Selective Service file was forwarded to the

United States Attorney for prosecution (F. 11, 29,

30). Prosecution was declined on January 5, 1966, in

order to enable the local board to review the infor-

mation submitted by petitioner and afford him another

opportunity to submit to induction (F. 34). The state

*He also acknowledged that he had participated in R.O.T.C.

while he was a student at the University of California, but said

that at the time participation was compulsory for lower divi-

sion male undergraduates (A. 56). At trial, he testified that he

knew when he enrolled at the university that he would be

required to take R.O.T.C. He added that, except for being

annoyed at being forced to take a required course, he had no

objection to his participation, since at the time he had “no

notion of the ideas which led me to ask for a conscientious

bjector’s status” (R. 26-27).

8

director instructed the board to consider petitioner's

Form 150 and, if it determined not to reopen, to give

petitioner another opportunity to report for indue-

tion under the previously issued order (A. 58). On

January 19, 1966, petitioner was informed that the

board had found on review that the facts presented

did not warrant a reopening or reclassification

(A. 59).* He then (January 21) requested a personal

appearance before the local board to discuss his appli-

cation further (A. 60). This request crossed in the

mail with a notification sent by the board on Janu-

ary 22 ordering petitioner to report for induction on

February 9, 1966, pursuant to the prior induction

order (F. 38).

In answer to his January 21 request, the board sent

petitioner a letter on January 28 which reviewed the

history of his case and then stated that the board had

determined, after reconsidering his classification

under the provisions of Part 1625 of the Selective

Service regulations, that the information submitted

on his Form 150 was not indicative of a change in

status beyond his control warranting reopening of his

classification. Thus, he was told, that under the regu-

lations he was not now entitled to a personal appear-

ance.* On February 5, petitioner wrote to the board

*An entry was made in the minutes of the local board on

January 18, 1966, that petitioner’s file had been reviewed and

not reopened (F.11).

*The letter explained that a personal appearance is a proce-

dural right to which a registrant is entitled only when a change

of classification is made by the local board and the registrant

makes a request for such an appearance within ten days after

the classification card is mailed (A. 61). See 32 C.F.R. 1625.13.

9

objecting to the action taken ; he requested that the letter

be sent to the appropriate appeal board for considera-

tion (F’. 40).

On February 9, petitioner appeared before an in-

duction officer but refused to take a new physical

examination to determine if he was still physically

qualified for induction (F. 42). The same day he

signed a statement saying that he refused to be

inducted (F. 43).°

C. Immediately after refusing to take his physical

examination, petitioner was interviewed by an F.B.I.

agent. He told the agent that he was refusing induc-

tion because he believed that participation in the mili-

tary would be the same as participation in the

destruction of the nation and the world, since he felt

that a nuclear war was building. He added that the

object of a human being on earth is to perpetuate the

race and the country; and, because he viewed war as

suicidal, he felt that participation in it would be

a contribution to the suicide of the country. He fur-

*The next day, the state director requested the local board to

forward the file for review (F. 41). Thereafter, on March 2,

1966, the state director wrote to petitioner that examination of

his file indicated that his procedural rights had been observed

in all respects and hence that no intervention on the state level

was contemplated. The letter noted that petitioner had neither

claimed conscientious objector status on his classification ques-

tionnaire nor appealed his initial 1-A classification but instead

had submitted his first claim for the exemption on the day

when he was to have reported for induction. The letter also

noted that the local board had reviewed his claim when it was

submitted and determined not to reopen his file, and had also

considered his request for a personal appearance and had ex-

plained to him by letter its reasons for denying it (A. 62).

10

ther informed the agent that his beliefs in this respect

were derived solely from reading, studying and talk-

ing to other persons (R. 19). Petitioner also said that

a contributing factor in his refusal was the fact that

the local board had ordered him to report for indue-

tion immediately after denying him the appeal which

he had requested, since he felt that he should have

been entitled to a ten-day period in which to appeal

this denial (R. 20).

At trial, petitioner gave a further explanation of

the mental process which led to his claim to con-

scientious objector status. He said that when he en-

tered college in 1960 he came into contact for the

first time with pacifist groups who were against the

war and the idea of maintaining a nuclear arsenal

(R. 24). These groups, he said, engaged in activities

and demonstrations designed to show the public that

a large number of people ‘“‘had grave doubts about

the validity of the idea of maintaining a strong nu-

clear arsenal as a necessity of continuing freedom

and liberty’? (R. 25). He maintained, however, that

it was not until he received his first induction notice

that he ‘‘finally realized” he had ‘‘no other choice”

but to refuse induction. As he explained it: he ‘‘had

doubts previously but the induction notice simply

forced me to face the issue and I realized the thing

about what I was going to do, that I couldn’t go

in” (R. 28).

SUMMARY OF ARGUMENT

1. This case calls into question the validity of Se-

lective Service regulation 32 C.F.R. 1625.2 insofar

11

as it has been interpreted to foreclose local boards

from entertaining conscientious objector claims raised

for the first time after the mailing of a notice to

report for induction. At issue is whether such a

claim, purportedly based on a sudden late crystal-

lization of inchoate beliefs, can, within the intended

meaning of the regulation, constitute a ‘“‘change

in * * * status resulting from circumstances over

which the registrant had no control.”

That a regulatory prohibition on post-induction-

notice claims was deemed essential to the orderly and

efficient processing of available manpower into the

Armed Forces is not controverted. If registrants had

been permitted endlessly to challenge their classifi-

cations, it would not only have been disruptive to the

System, but also extremely unfair to those eligible

registrants whose induction would necessarily have

been accelerated to fill the quota vacancies left by

late claimants. With this in mind, the single exception

in the regulation to the prohibition on post-notice

claims is designed to cover only the unusual emer-

gency situation where an unforeseeable event, such

as death in the family, may give rise to a belated

claim of exemption or deferment.

In our view, this limited exception was not in-

tended to reach post-notice conscientious objector

claims. Leaving to theologians, philosophers and psy-

chologists the age-old debate over whether the devel-

opment of such beliefs are or are not beyond a

registrant’s “‘control’’, we think it clear that the

circumstances of crystallization are not the kind of

er hn oe ee oe

12

‘‘eircumstances” contemplated by the regulation. The

draftsmen intended to permit a last-minute reopen-

ing and reclassification based only on the occurrence

of some objectively identifiable extraneous event or

circumstance which the local board “specifically

finds” to be outside the registrant’s control, not on some

element of a registrant’s thought processes.

To construe the regulation as cutting off board

consideration of post-notice conscientious objector

claims is wholly consistent with the statutory pro-

vision exempting from “combatant training and sery-

ice’’ those registrants determined by their local

boards to be conscientiously opposed to war in any

form. 50 U.S.C. App. 456(j). Taken as a whole,

this provision was not intended to establish an abso-

lute statutory right of exemption for all those claim-

ing conscientious objector status. Its aim, instead, was

to provide a procedural framework for the fair proe-

essing of such claims. Within that framework, time-

liness has been recognized repeatedly as a_ valid

element of the administrative system, and the regu-

lation merely prescribes what the reasonable time limit

must be.

Moreover, this reading of 32 C.F.R. 1625.2 does not

deprive one whose beliefs truly crystallize after the

mailing of an induction notice but before actual in-

duction of an opportunity to assert his claim. It

requires only that he, just as the soldier whose

conscientious objection develops subsequent to indue-

tion, raise his claim in a different forum and have it

considered by the military. If it is sustained, he will,

of course, be entitled to immediate discharge.

13

9. The claim in the instant case was made for the

first time well after the mailing of petitioner’s in-

duction notice. Thus, if the Court agrees with our

interpretation of the regulation, that ends the matter.

However, even if it is decided that 32 C.F.R. 1625.2

requires board consideration of post-notiee conscien-

tious objector claims, petitioner is not on this record

entitled to any relief. The information in his Selec-

tive Service file warrants a finding that he was not

conscientiously opposed to war in any form and that

his beliefs, such as they were, had not in fact crystal-

lized only after the induction notice was mailed. Since

the board explicitly acknowledged that it had con-

sidered this information in refusing to reopen peti-

tioner’s classification, there is sufficient basis for this

Court to uphold the denial of Ehlert’s post-induction-

notice claim.

ARGUMENT

I

A CLAIM TO CONSCIENTIOUS OBJECTOR STATUS IS NOT EN-

TITLED TO SELECTIVE SERVICE BOARD CONSIDERATION IF

MADE AFTER THE MAILING OF AN INDUCTION NOTICE

The regulation here in question—32 C.F.R. 1625.2—

provides in pertinent part that a local board is pre-

cluded from reopening a registrant’s classification

once it has mailed him an induction notice unless it

‘first specifically finds that there has been a change

in * * * status resulting from circumstances over

which the registrant had no control.’ It is settled

that this prohibition was intended to prevent disrup-

406-547—70——_3

14

tion of the Selective Service machinery by dilatory

assertions of claims of exemption or deferment. Keene

v. United States, 266 F. 2d 378, 384 (C.A. 10) ; United

States v. Beaver, 309 F. 2d 273, 276 (C.A. 4), certiorari

denied, 371 U.S. 951. As the Second Circuit recognized in

United States v. Gearey, 368 F. 2d 144, 149, “[i]f young

men eligible for the draft are permitted endlessly to

challenge their status and to claim review of adverse de-

terminations, the effect on the Selective Service System

would be chaotic, for manpower quotas could rarely be

met with any degree of certainty.’’ See United States v.

Delfin, 419 F’. 2d 226, 228 (C.A. 2) ; Paszel v. Laird, 426

F. 2d 1169, 1173 (C.A. 2). Moreover, such a practice

would be unfair to other registrants whose induction is

accelerated by their local boards in fulfillment of the

duty to fill the quota vacancies left by late claimants. In

view of these overriding policy considerations, Selective

Service appropriately prohibited virtually all post-in-

duction notice claims, recognizing but a single exception

designed to cover the unusual emergency situation

where an unforeseeable event, such as death in the

* Such acceleration of induction could cause a registrant to be

drafted just prior to his twenty-sixth birthday; it could unex-

pectedly prevent a registrant from enrolling in a college or

university, or from seeking employment in a deferred occupa-

tion. Also, it could have the effect today of inducting regis-

trants out-of-turn under the present random selection system,

possibly subjecting to the draft some whose lottery number, in

the normal course of events, would not have been reached. And

see the government’s brief in United States v. Weller, No. 77,

this Term, p. 44 n. 32.

family, may give rise to a belated claim of deferment

(e.g. on grounds Of new hardship) or exemption

(e.g., a8 a sole surviving son). See, ¢g., Petrie v.

United States, 407 F.2d 267 (C.A. 9).

The precise issue raised here is whether a post-

notice claim, made by a registrant who did not con-

clude that he was a conscientious objector until after

notice was mailed, fits within the intended scope of

this exception for emergent circumstances beyond the

registrant’s control. The Seeond Circuit has recently

held that it does, in United States v. Gearey, supra,’

but previously the regulation had consistently been

construed otherwise, See United States v. Schoebel,

201 F. 2d 31 (C.A. 7); United States v. Bartelt, 200

F. 2d 385 (C.A. 7); United States ex rel. Berman v.

Craig, 207 F. 2d 888 (C.A. 3); Feuer v. United States,

208 F. 2d 719 (C.A. 9); Leitner v. United States, 222

F. 2d 363 (C.A. 4); United States v. Mohammed, 288

F. 2d 236 (C.A. 7), certiorari denied, 368 U.S. 820;

Boyd v. United States, 269 F. 2d 607 (C.A. 9) ; Keene

v. United States, 266 F. 2d 378 (C.A. 10); United

States v. Taylor, 351 F. 2d 228 (C.A. 6); Porter v.

United States, 334 F. 2d 792 (C.A. 7); Parrott v.

United States, 370 F', 2d 388 (C.A. 9), certiorari denied

sub nom. Lawrence y. United States, 387 U.S. 908. In-

*™See also the Second Circuit decisions in United States v.

Stafford, 389 F. 2d 215; United States v. Holmes, 426 F. 2d 915;

United States v. Sandbank, 403 F. 2d 38, certiorari denied, 394

U.S. 961; United States v. Delfin, 419 F. 2d 226; Capobianco v.

Laird, 494 F, 2d 1304, petition for certiorari pending, No. 611, this

Term; Paszel v. Laird, 426 F. 2d 1169.

16

deed, since Gearey only the Third Circuit has agreed

that the exception should be so applied ; * all other courts

of appeals that have since passed directly on the ques-

tion have refused to follow the Gearey rationale, holding

instead that 32 C.F.R. 1625.2 forecloses consideration by

the local board of any conscientious objector claim made

after the mailing of an order to report for induction.

United States v. Al-Majied Muhammad, 364 F. 2d

223, 224 (C.A. 4); United States v. Helm, 386 F. 2d

434, 435 (C.A. 4), certiorari denied, 390 U.S. 958;

Davis v. United States, 374 F. 2d 1;\4 (C.A. 5);

United States v. Jennison, 402 F. 2d 51, 52-53 (C.A.

6); Dugdale v. United States, 389 F. 2d 482 (C.A.

9); and see United States v. Kroll, 400 F. 2d 923

(C.A. 3).

This Court is now asked to overturn the weight of

judicial and administrative precedent which sustains

a specific cut-off date for submission of pre-induction

conscientious objector claims, by either adopting the

Second Circuit’s interpretation of 32 C.F.R. 1625.2, as

first enunciated in Gearey, or declaring the regulation,

® Scott v. Volatile, No. 18,546, decided September 15, 1970.

But see United States v. Kroll, 400 F. 2d 923 (C.A. 3). In

both the First and the Tenth Circuits, while the question has

yet to be reached, there is dictum in related cases suggesting

that these Circuits might well follow Gearey. See United States

v. Stoppelman, 406 F. 2d 127, 131, n. 7 (C.A. 1), certiorari

denied, 395 U.S. 981; Martinez v. United States, 384 F. 2d

50-51 (C.A. 10) ; United States v. Maine, 417 F. 2d 951, 953 (C.A.

10). And see United States v. Hinch, 292 F. Supp. 696 (W.D. Mo.) ;

United States vy. Blaisdell, 294 F. Supp. 1303 (D. Me.). See

also United States v. Brown, 129 F. Supp. 237 (D. N.J.).

aac eeairaiaeae

17

as traditionally interpreted, inconsistent with 50

U.S.C. 456(j). Neither approach, we urge, withstands

close scrutiny.

A. THE MANIFEST PURPOSE OF THE REGULATION WAS TO SET AN

ABSOLUTE TIME LIMIT ON CLAIMS NOT BASED ON EMERGENT EX-

TERNAL EVENTS

The Gearey case involved a post-induction-notice

elaim to conscientious objector status based on the

registrant’s assertion that his objection to war in any

form “did not ripen until after he received his notice.”’

368 F. 2d at 149. The local board there granted the

registrant a personal interview to articulate his newly

formed beliefs and then concluded that “he did not

qualify to be a genuine ¢.0.” and “[ajll facts con-

sidered [he] did not warrant a change in classifica-

tion.” 368 F. 2d at 147, n. 4. Gearey then refused to

submit to induction, and he was convicted under 50

U.S.C. App. 462(a). On appeal, the conviction was

vacated and the case remanded to determine whether

the local board’s action was based on a finding that the

claim was in fact not genuine or, instead, was based

solely on the ground that the claim was not made prior

to the mailing of the induction notice. The Second

Circuit stated (368 F. 2d 150) :

If the Board finds * * * that the applicant’s

beliefs ripened only after he received his notice,

and that his beliefs qualify him for classifica-

tion as a conscientious objector then a change in

status would have occurred “resulting from cir-

cumstances over which the registrant had no

control,” and he would be entitled to be reclassi-

fied by the Local Board.

It is this interpretation of 32 C.F.R. 1625.2 which

was rejected below and is again urged by petitioner

here. The issue turns not on the words “change * * *

in status”; rather, the lines are drawn over whether

a post-notice crystallization of inchoate beliefs can re-

sult from “circumstances over which the registrant had

no control’? within the intended meaning of the

regulation.

Petitioner and amicus argue forcefully that be-

cause conscientious objection is by definition a “mat-

ter of conscience’’, both the crystallization of beliefs

and the point in time at which that occurs are ipso

facto “circumstances over which the registrant had

no control’”’ (Br. 9, 11; Am. 6-7).° Reference is made

to the experience of Saul of Tarsus (Br. 12), though

more demonstrative of a complete religious conversion

than of a crystallization of inchoate beliefs, as a typi-

cal analogue.

While we might also join the age-old debate among

theologians, philosophers and psychologists (see Pas-

zel v. Laird, supra, 426 F. 2d at 1172) as to whether or

not a decision of this kind is, as an abstract matter,

“involuntary” on one or another definition of that

term,” we fail to see how such discussion in abstract

*“Br.” references are to the Brief for petitioner; “Am.” ref-

erences are to the Brief of Lawyers’ Selective Service Panel

of San Francisco, as Amicus Curiae.

In Scott v. Volatile, supra, slip op. 11-18 (Aldisert, J.

concurring), the differing viewpoints are summarized. Thus,

John Dewey and Bertrand Russell both emphasize the use of

the deliberative process, whie David Hume and H. H. Price

19

intellectual or mystical terms is pertinent to the in-

terpretation of a Selective Service regulation, The

question here is the much simpler, more concrete

question of what the regulation intends by its use of

the terms. The kind of exercise petitioner invites us

(and the Court) to join is, in our view, a singularly

inappropriate basis for any governmental decision,

whether executive or judicial, and we cannot share

the assumption that the regulation in question eontem-

plates it. Our argument as to the impact of the regu-

lation is, therefore, simply that the development of

conscientious objection, whether or not some would

regard it as beyond the registrant’s “control,” is not

the kind of “‘cireumstance”’ that was contemplated. See

422 F., 2d at 335 (Duniway, J. concurring).

As we have indicated, the prohibition on post-notice

claims established by 32 C.F.R. 1625.2 is plainly de-

signed as a protection against the assertion of “last

minute changes in status for purposes of avoidance.”

Umted States v. Beaver, supra, 309 F.2d at 276. Be-

fore the local board is permitted to reopen after mail-

argue forcefully on the other side. 7d. at 14-16. In the middle,

taking a position that beliefs are at times within one’s control

and at other times due to emotion, are William James and

C. J. Adcock. See James, Psychology (Briefer Course, Collier

Books, 1969 ed.) , 392, 426; Adcock, Fundamentals of Psychology

(Penguin Books, 1968), 219-218. And see Freud, The Ego and

the Id (Norton, 1962 ed.), 15, where the following point is made

“The ego represents what may be called reason and common sense,

in contrast to the id, which contains the passions.”

aie sem

20

ing an induction notice, it must not only be satisfied

that a change in status has occurred but also must

specifically find that the ‘‘circumstances” causing such

change actually did exist and were in fact beyond the

registrant’s control. Unlike the pre-induction notice

claim (see Mulloy v. United States, 398 U.S. 410, 415-

416), it is not enough that the registrant is able to

make out a prima facie case at the eleventh hour (see

Paszel v. Laird, supra (426 F. 2d at 1172-1174) ;* he

must present affirmative evidence that some event or

circumstance discernably outside his control did in fact

occur which in and of itself suddenly entitled him to

an exemption or deferment classification—+.e., a sud-

den death in the family (supra, pp. 14-15). Cf. Petrie v.

United States, 407 F. 2d 267 (C.A. 9) ; Badger v. United

States, 322 F. 2d 902, 906 (C.A. 9).

This standard, if held applicable and then applied

in its terms to late conscientious objector claims, would

require a registrant to demonstrate to his local board

both (1) that his crystallized beliefs are now for the

first time ‘‘truly held’? (United States v. Seeger, 380

U.S. 163, 185) and (2) that uncontrolled circumstances

in fact occurred which directly caused the crystalliza-

tion. See Scott v. Volatile, supra, slip op. 5-6. Thus, be-

fore reopening the board would be compelled by

the regulation to engage in precisely the kind of in-

quiry appropriate only for debate by theologians, phi-

losophers, and psychologists. We cannot believe the

11 See also our Petition for a Writ of Certiorari in Laird v.

Capobianco, No. 611, this Term, pp. 7-9.

. —

regulation intended such a result.* Of. United States v.

Jennison, supra, 402 F. 2d at 53; United States v.

Schoebal, supra, 201 F'. 2d at 32. Clearly, it is not ap-

propriate for a local draft board to examine the men-

tal processes by which a registrant claims he arrived

at his beliefs. United States v. Seeger, supra, 380 U.S.

at 184-185. One hardly can expect a board to cope ef-

fectively with the perennial controversy over whether

“matters of conscience” are within or without a per-

son’s control. As this Court has indicated, while

“[s]ome theologians, and indeed some examiners,

might be tempted to question the existence of the

registrant’s ‘Supreme Being’ or the truth of his con-

cepts * * * these are inquiries foreclosed to Gov-

ernment.”’ United States v. Seeger, supra, 380 U.S. at

184.

Indeed, the Gearey decision implicitly recognizes as

much, but argues instead for an irrebuttable presump-

tion in favor of late conscientious objector claimants—

i.¢., if they can show a change in status, such ‘‘change”’

wa sipso facto due to circumstances beyond their control

within the meaning of the regulation (368 F. 2d at

150). But any such rule is contrary to the clear intent

of the regulatory language, for it reads out of the pro-

viso the most essential element of proof necessary for

the extraordinary relief of last-minute reclassification.

It thus requires for certain claimants a post-notice

reopening on precisely the type of showing (change in

* Judge Duniway, concurring below, observed: “[t]he word

‘circumstances’ indicates to me some fact, act or event external

to the mind or consciousness of the registrant, rather than the

mysterious and unfathomable internal mental and spiritual proc-

esses of the registrant himself.” 422 F. 2d at 335.

Sea,

22

status, and nothing more) which the drafters of the

regulation manifestly demed to be inadequate.” More-

over, it assumes the very theological-philosophical-

psychological point which remains in controversy;

whether matters of conscience are actually voluntary

%In United States v. Stafford, 389 F. 2d 215, the Second

Circuit, applying the Gearey rationale, read the regulation as

requiring a postponement of induction for purposes of accord-

ing the board an opportunity to review a C.O. claim based

on late crystallization where the written claim is raised for the

first time at the induction station. And in United States vy,

Holmes. 426 F. 2d 915 (C.A. 2), the same result was reached

where the claim was made orally for the first time at the in-

duction center (which was also the situation in the instant

case). Both decisions rested on the Second Circuit’s conclusion

that it is reasonable to consider the induction station as merely

an arm or agent of the Selective Service administrative agency —

and thus as an instrumentality of the local board for purposes

of receiving a belated conscientious objector claim. Thus Gearey,

as extended by Stafford and Holmes, stands for the proposi-

tion that a postponement of induction is automatic on the mere

assertion at the induction station of a post-notice claim, not-

withstanding the fact that no written request to reopen and

reclassify is made to the local board pursuant to 32 CFR.

1623.1(b) and 1625.2. Such an interpretation of 32 C.F.R. 1625.2

totally disregards the very nature and purpose of the questioned

proviso—i.e., the prevention of substantial disruption to the

Selective Service machinery by dilatory assertions of claims of —

exemption or deferment. These considerations apply with par-

ticular force to relieve the Selective Service System from the

necessity of affording a lengthy delay in induction. Blades v.

United States, 407 F. 2d 1397, 1399-1400 (C.A. 9). As the court

below correctly observed in Palmer v. United States, 401 F. %

226, 227-228, “[c]lassification functions of the local board cease

with induction, and a registrant cannot, by refusing to submit

to induction, impose upon the board any new duties respecting

reclassification or reopening.” See Martinez v. United States,

384 F. 2d 50, 51 (C.A. 10); United States v. Stoppelman, 46

F, 2d 127, 131-132 (C.A. 1) ; Straight v. United States, 413 F.2d

263, 264 (C.A.9),

23

or involuntary is a question no more appropriate for

the courts to answer than for the local boards. Cf.

United States v. Seeger, supra, 380 U.S. at 185; Welsh v.

United States, 398 U.S. 333, 339. And even if it were

permissible for the courts to pass judgment upon

such a matter, there is nothing in the reasoning of

Gearey or in the arguments in the instant case

that justifies the conclusion that every late-bloom-

ing conscientious objection is the product of forces be-

yond the registrant’s “control”, the conclusion that

necessarily underlies the reading of the regulation that

Gearey and petitioner here suggest.”

Accordingly, the provision of the regulation allowing

limited emergency reopenings by local boards can-

not reasonably be read as intended to cover late con-

scientious objector claims.” Clearly what the drafts-

* See pp. 26-27, n. 19, infra. Moreover, since an alleged “crystal-

lization” or “maturation” of conscientious objector beliefs neces-

sarily contemplates the existence of inchoate antiwar senti-

ments, which in varying degrees are harbored by registrants

prior to the date they ripen, the Gearey presumption would

make it virtually impossible to distinguish the true late crys-

tallizer from the conscientious objector who was always sin-

cerely opposed to war in any form but simply delayed in as-

serting his claim until after the mailing of an induction notice.

See infra, p. 31.

We point out that our reading of the regulation does no

more than push forward the final date for assertion of such

claims before the board from the date of induction to the date

of mailing a notice of induction. Thus, in the vast majority

of crystallization cases, registrants who, as petitioner, had been

“unable to make a decision of such moment until faced with

the absolute necessity to do so” (Br. 1), will find themselves

faced with such an “absolute necessity” at the time of the I-A

classification, rather than at the time they are to take the symbolic

step forward at the induction center. Supra, n. 13.

men of the regulations contemplated by the questioned

language, as we have already pointed out, was simply

the occurrence of some objectively identifiable ex.

traneous event or circumstance which the loeal board

eould specifically find to be outside the registrant's

control, and not some element of a registrant’s in-

ternal thought processes.

The argument is made that to adhere to such a

narrow interpretation has the effect of singling out

conscientious objectors as the only claimants seeking

exemption or deferment status who are unable to ob-

tain board reclassification after the mailing of an in-

duction notice. We point out initially that, even if

this were the case, it would not suggest a basis for

invalidating the regulation. It is well settled that “no

one has a constitutional right to exemption from mili-

tary service.’’ United States v. Beaver, supra, 309 F.

2d at 276; cf. Warren v. United States, 177 F. 2d 596,

598-600 (C.A. 10), certiorari denied, 338 U.S. 947. Per-

haps equally relevant is the fact that conscientious ob-

jectors are indeed not alone in this respect. Also fore-

closed from further consideration after the designated

cut-off date are claims of a change to student (II-S) de-

ferment status or occupational (II-A) deferment status,

for example. Cf. Scott v. Volatile, supra, slip op. 2.

It is quite clear, then, that the exception to the proviso

is not directed, either favorably or unfavorably, at any

specific class of claimants; it is drafted so as to meet ex-

ceptional emergency situations if and when they arise.

It is contended, however, that a rejection of the

Gearey rationale by this Court would forever precludea

25

conscientious objector whose beliefs crystallize late from

asserting his claim (Br. 21). But this is not true.

While it is true that the claim can no longer properly

be raised before the local board, it can be considered

by the military immediately upon induction; the sug-

gestion that the military would offer no relief for any

conscientious objection developed between a regis-

trant’s notification and his induction is, as Judge Ely

(concurring below) observed, “more fancied than real’’

(422 F. 2d at 337, n. 3). Department of Defense directive

No. 1300.6 (August 21, 1962), only part of which has

been relied on by petitioner (Br. 22), plainly deals with

post-induction claims which could have been raised

“prior to notice of induction’’ but were not * (emphasis

supplied). At the time this action was commenced, the

Directive stated explicitly that “failure to make timely

claim for exemption constitutes waiver of the right to

claim’’ (emphasis supplied), and then, continuing with

the word “Therefore,” * went on to declare that a con-

1° There is, then, no substance to the “hiatus” problem which

disturbs petitioner (Br. 21-24) and the dissenting judges be-

low. See 422 F. 2d at 339. All conscientious objectors whose

claims are sustained by the local board prior to the mailing of

an induction notice are on the same footing under Section 6(j)

(see infra, pp. 30-31). Those whose beliefs allegedly crystallize

subsequent to such mailing date will be processed by the armed

forces under the applicable military procedures (infra, n. 18).

* Recently the directive has been restructured so as to begin with

what formerly was the second sentence, followed by this language:

“This accords with Federal court holdings that a claim to ex-

emption from military service under the Selective Service laws

must be interposed prior to notice of induction and failure to

make timely claim for exemption constitutes waiver of the right

to claim.” Department of Defense Directive No. 1300.6 (May 10,

1968) (emphasis supplied).

scientious objector claim “which existed but was not

claimed [t.e., had been waived] prior to induc-

tion * * * cannot be entertained.” Thus, when the

language quoted by petitioner is properly read in con-

nection with the unequivocal policy statement directly

preceding it, it follows that ‘‘the thrust of the direc-

tive is toward claims arising before the induction no-

tice’? (422 F. 2d at 337, n. 3). It was not designed to

exclude claims which a registrant had not waived but

rather, due to late crystallization, had never had an

opportunity to assert prior to induction.” Nor to our

knowledge has the Directive ever been so applied.”

* As to such claims, the various military services have pre-

scribed specific procedures for investigating and processing such

claims and, where appropriate for granting discharges. Depart-

ment of Defense Directive No. 1300.6 (May 10, 1968) expressly

declares that, “[s]ince it is in the national interest to judge all

claims of conscientious objection by the same standards, whether

made before or after entering military service, Selective Service

standards used in determining I-O or I-A-O classification of

draft registrants prior to induction shall apply to servicemen who

claim conscientious objection after entering military service.” And

see Army Regulation AR 635-20 (January 1, 1970); Navy De-

partment BUPERINST 1900-5 (July 18, 1968) ; Marine Corps

Order MCO 1306.16B (June 18, 1969). Air Force Regulation AFR

35-24 (March 25, 1969); Coast Guard COMDTINST 19002

(October 7, 1968).

** Even if we could accept the abstract general approach to

the problem of late-blooming conscientious objection that. peti-

tioner advocates, we do not believe that, on the facts as peti-

tioner has presented them in this litigation, he could claim that

his alleged crystallization of beliefs was an occurrence in any

meaningful sense beyond his control. Petitioner claims that he

has harbored vague antiwar sentiments before his induction no-

tice came, and that they did not ripen into a “conscientious

objection” until several weeks after that date. In his words, he

had been “unable to make a decision of such moment until faced

with the absolute necessity to do so” (Br. 1; emphasis sup-

27

B. THIS LIMITATION ON POST-NOTICE CLAIMS 18 AUTHORIZED BY

STATUTE AND DOES NOT CONFLICT WITH SECTION 6(j) OF THE ACT

Petitioner contends that the questioned proviso of

the regulation, if interpreted as foreclosing further

hoard consideration of conscientious objector claims

after the mailing of an induction notice, is neither au-

thorized by statute nor consistent with 50 U.S.C. App.

456(j) and therefore must be declared invalid. We

cannot agree.

plied). In these circumstances, we think it clear that the ulti-

mate decision to claim conscientious objector status is a matter

of rational thought well within the registrant’s control. Per-

haps the triggering event which prompts such a momentous

decision may be a circumstance over which the registrant had

no control (though we cannot view the receipt of an induc-

tion notice containing information already known to the regis-

trant as so dramatic and unexpected that it falls within this

category), but the decision itself seems in any event to be a

rational one. Moreover, even if the time when a registrant

finally makes that decision once he has put his mind to it were

a circumstance over which he has no control, it is not altogether

clear that he cannot control the time when he chooses directly

to confront the problem and start the thinking process. As the

court below observed in another case “[a]n average man of

average intelligence, who can read, must daily realize that he

may, once he is subject to a draft call from his board due to his

designated classification, be ‘soon’ called upon to kill.” Parrott vy.

United States, supra, 370 F. 2d at 396. Is it, then, unreasonable

to require that he sit down at the outset and think through

his inchoate objections to war, rather than encourage him to

postpone the decision to the eleventh hour? We think not.

Thus, petitioner’s particular claim can be rejected without

becoming too deeply embroiled in theological-philosophical-psy-

chological disputation. In contrast, acceptance of his claim

would, as we have shown, either require that local boards de-

cide other, closer cases on the basis of such disputations or else

unjustifiably emasculate the basic regulation by establishing an

irrebuttable presumption that all crystallizations of conscien-

tious objection are uncontrollable circumstances (see n. 14 supra).

en 5 re ne eo

28

The Universal Military Training and Service Act,

like the present law,” contained a provision authoriz-

ing the President to prescribe the rules and regula-

tions necessary for its administration. 50 U.S.C. App.

460(b)(1). Under this grant of power, President

Eisenhower signed Executive Order No. 10594 on

January 31, 1955, setting forth in its entirety the

present language of 32 C.F.R. 1625.2." The complete

regulation, including the prohibition on reopening

questioned here, was manifestly intended to have ap-

plication to all claims of exemption or deferment, and

so must be considered in this broad context—not sim-

ply in the narrow context of conscientious objection—

in ascertaining its statutory authorization. So viewed,

the establishment (in the vast majority of cases) of

an 2solute cut-off for further requests to reopen

and reclassify at the point of the final act by the

local draft board in processing a registrant for in-

duction (i.e., the mailing of a notice to report) is not

20 Petitioner was convicted under the Universal Military

Training and Service Act rather than under the present Mili-

tary Selective Service Act of 1967. There are two variations,

not directly pertinent here, between the version of the exemp-

tion section (50 U.S.C. App. 456(j)) appearing in the present

statute and the version which appeared in the statute under

which pciitioner was convicted: the earlier form of the section

contained a definition of “religious training and belief” and

also provided certain rights of administrative appeal for regis-

trants to whom local boards denied classification as conscien-

tious objectors. Both provisions were omitted from the 1967

statute; provision for appeal is now found only in the Selective

Service regulations (see 32 C.F.R. 1626, 1627).

“In 1912, two years after the Selective Service Training

Act became law, the President promulgated former 32 C.F.R.

626.2 which is substantially similar to what is today 32 C.F.R.

1625.2.

29

“ynreasonable or derogatory to the spirit and pur-

pose’? (Keene v. United States, 266 F'. 2d 378, 383 (C.A.

10)) of the Act. On tke contrary, the courts have consist-

ently recognized that “Cwl]ithout such a regulation, the

manpower quotas of Selective Service could not be met

with any degree of certainty.” 422 F. 2d at 334;

United States v. Delf™ supra, 419 F. 2d at 228 ; Paszel v.

Laird, supra, 426 F: 2d at 1173. As earlier indicated,

not only is it essential to the achievement of

what is indisputably the single most important objec-

tive of the System—the orderly and efficient process-

ing of available mar'POWwer into the Armed Forces (cf.

United States v. Nugent, 346 US. 1, 9; Falbo v.

United States, 320 U.S. 549, 553; see also Estep v.

United States, 327 U.S. 114, 140 (Frankfurter, J.,

concurring) )—it alS° substantially reduces injustices

resulting from an otherwise unnecessary order of in-

duction of another eligible registrant to meet quota re-

quirements (supra, P- 14, n. 6). As observed even in

Gearey (368 F. 2d at 149), “‘[y]ears of experience have

demonstrated that it i8 necessary and reasonable to set

limits on the time ™ Which a claim must be as-

sel * & # 99 22

2 In Kramer v, Unite? States, voe F. 2d 756, 759 (C.A. 6),

it was said, “The Supre™e Court has declared that legislation

must be often adapted: to conditions involving details with

which it is impractic ble for the legislature to deal directly ;

and that the Constitutio® 20es not deny to Congress ‘the neces-

, .»ility and practicality, which will enable

t ra paws ad text tion in laying down policies and estab-

lishing standards, while leaving to selected instrumentalities

the making of subord2#te rules within prescribed limits and

the determination of facts to which the policy as declared by

the Legislature is to a? ply.” Currin v. Wallace, 306 U.S. 1, 15;

* * *9

Panama Refining Co. v: Ryan, 293 U.S. 388, 421.

30

Even so, petitioner argues that, to the extent the

regulation has application to conscientious objector

claims and is construed as it was below, it is contrary

to the statutory mandate of 50 U.S.C. App. 456()),

which provides in part that “‘[n]Jothing” shall require

conscientious objectors ‘‘to be subject to combatant

training and service in the armed forces.’’ The quoted

statutory language, however, cannot be read in isola-

tion. Section 6(j) as a whole makes clear that Con-

gress did not intend to establish an absolute statutory

right of exemption for all those claiming conscien-

tious objector status. See Clark v. United States, 236

F. 2d 13, 21 (C.A. 9). Its aim, instead, was to provide

a procedural framework (United States v. Gearey,

supra, 368 F. 2d at 150; Keene v. United States,

supra, 266 F. 2d at 383-384) for the fair processing of

conscientious objector claims alleged to come with-

in the statutory definition. Cf. United States v.

Seeger, supra; Welsh v. United States, supra. Thus,

the first sentence of the section, on which petitioner

and amicus rely so heavily, has effect, in light of the

third sentence of Section 456(j), only where such a

claim ‘“‘ts sustained by the local board’’ (emphasis

supplied). If a claimed exemption is denied by the

board and on appeal within the Selective Service

System, a registrant is subject to “combatant training

and service” under the statute if the denial, even

though perhaps erroneous (Estep v. United" States,

327 U.S. 114, 122-123), has a “basis in fact.’’ Witmer

v. United States, 348 U.S. 375, 377; Dickinson v.

United States, 346 U.S. 389; Mulloy v. United States,

supra, 398 U.S. at 416. Accordingly, the statutory scheme

does not establish a judicially enforceable right to

exemption, but more simply a system for fair ad-

ministrative consideration of exemption claims.

To construe the word “nothing’’ in the manner

urged by petitioner would not only have the effect of

rendering all but the first two sentences of Section

6(j) meaningless; it would also require local boards

to recognize conscientious objector claims whenever

made, including those that could have been asserted

prior to the mailing of an induction notice but were

not communicated to the board until after that date.

That argument has been uniformly rejected by the

various courts of appeals United States v. Gearey,

368 F. 2d 144 (C.A. 2); Davis v. United States, 374 F.

2d 1 (C.A. 5); Untted States v. Taylor, 351 F. 2d 228

(C.A. 6) ; United States v. Beaver, 309 F. 2d 273 (C.A.

4), certiorari denied, 371 U.S. 951; United States v. Kan-

ner, 416 F. 2d 522 (C.A. 9) ; Boyd v. United States, 269

F. 2d 607 (C.A. 9); Keene v. United States, 266 F. 2d

378 (C.A. 10); United States v. Schoebel, 201 F. 2d

31 (C.A. 7). Quite clearly, then, timeliness is a valid

element of the administrative system; the purpose of

the statute goes no further than to assure that the Selec-

tive Service process will exempt from “combatant train-

ing and service’’ * those whose timely claims to conscien-

* We emphasize further that the provision makes explicit ref-

erence to “combatant training and service.” Plainly, “{c]on-

scientious objector status does not per se excuse the regis-

trant from induction.” United States v. Beaver, supra, 309 F.

2d at 276 (emphasis supplied). Indeed, Section 6(j) provides

expressly that even where a claim “is sustained by the local

board,” a conscientious objector may be “inducted into the armed

forces under this title” and “assigned to noncombatant service”

(emphasis supplied).

32

tious objector status are (within the limited constraints

of judicial review) sustained by the local board or the

appeal board.™ Cf. Cark v. United States, supra, 236

F. 2d at 21. The reguhtory proviso of 32 C.F.R. 1625.2,

establishing the mailng of an induction notice as the

final cut-off date forsubmitting such claims to local

boards, is entirely coisistent with this scheme. United

States v. Kroll, 400 F 2d 923 (C.A. 3). As stated by the

Sixth Circuit in Unttd States v. Taylor, 351 F. 2d 228,

230:

It seems resonable to this court (and in ac-

cord with thegreat weight of authority)- for

regulations ofthe selective service system to

provide that < claim of conscientious objector

* The argument by azicus (Am. pp. 17-19) that the statute

thus “creates two clusses[of registrants]” in violation of equal

protection of the laws iswithout substance. As we have demon-

strated, it is not “unreasonable or derogatory to the spirit and

purpose of the exemptir statute to provide by regulation that

no request for reopeniz and reclassification shall be enter-

tained after notice to reort for induction is mailed.” Keene v.

United States, 266 F. 2d 78, 383-384. Such a cut-off date does not

deny sincere conscientias objectors whose beliefs crystallize

late an opportunity to clim exemption from “combatant training

and service in the armed orces.” It merely requires, for valid pol-

icy reasons (supra, pp. $-29), that they assert their claim after

induction and have it prossed pursuant to the applicable military

regulations, rather than ursuant to the Selective Service regula-

tions. “There is here ncinterference with defendant’s right to

adopt and believe the rigion of his choice. To the extent that

his freedom of desirediction in the practice of his religious

faith is curtailed, that crtailment is a permissible result of the

selective service laws aopted and enforced for the protection

of the nation.” United ‘ates v. Mohammed, 288 F. 2d 236, 244

(C.A. 7), certiorari dend, 368 U.S. 820. See Warren v. United

States, supra, 177 F. 2d 2598-600.

33

status must be made before the individual con-

cerned has been notified to report for induc-

tion.”

II

EVEN ASSUMING POST-NOTICE CLAIMS OF CONSCIENTIOUS

OBJECTION ARE ENTITLED TO BOARD CONSIDERATION,

THE REFUSAL TO REOPEN WAS WARRANTED IN THE

PRESENT CASE

Though the local board stated no reasons for its re-

fusal to reopen after consideration of petitioner’s con-

scientious objector claim,” it did indicate in a subse-

quent letter (supra, p. 8) that the basis for its action

was its inability to find, on reviewing the entire file

(including information submitted in the SSS Form

150) “under the provisions of Part 1625” of the regula-

tions, “a change in [petitioner’s] status which was be-

yond [his] control’’ (A. 61). We submit that even if the

Court were to adopt the Gearey rule, a reopening would

not be required on the facts of this case.

1, Amicus suggests that reopening is required if a

court finds that petitioner made a prima facie showing

**Due process does not require that the cut-off date selected

be contingent upon something within the control of the regis-

trant; so long as it has a reasonable relation to the overriding

purpose of the statute (see supra, pp. 28-29), it will not be con-

sidered unconstitutionally “arbitrary and capricious” (Am. 19).

See Louisville Gas Co. v. Coleman, 277 U.S. 32, 41 (Holmes, J.,

dissenting).

*Here the local board entertained the claim subsequent to

petitioner’s first refusal to submit to induction only after the

United States Attorney declined prosecution so as to afford the

board an opportunity to review the information submitted, and

the state Selective Service director instructed the board to con-

sider petitioner's Form 150. See supra, pp. 7-8.

34

of conscientious objector status (Am. 10-13). How-

ever, the regulation governing reopening expressly pro-

vides that the board is permitted to reopen in the post-

notice situation only if it “first specifically finds” a

change resulting from circumstances beyond the regis-

trant’s control. 32 C.F.R. 1625.2. Thus, the prima facie

showing that would be sufficient to warrant a pre-

notice re-opening (Mulloy v. United States, 398 U.S.

410)—-~where the board has unrestricted power under

the regulation if new facts are presented “—will not

suffice when the claim is submitted after a notice of in-

duction has been mailed. Paszel v. Laird, supra; Scott v.

Volatile, supra; United States v. Bowen, 421 F. 2d 193,

197 (C.A. 4). See our Petition for a Writ of Certiorari

in Laird v. Capobianco, No. 611, this Term, pp. 7-9.

It follows that a board determination to refuse a

post-notice reopening, resting as it does on determina-

tions of fact, is subject to judicial review only to the

same extent as an original classification by the board.”

United States v. Gearey, 379 F. 2d 915 (C.A. 2), cer-

tiorari denied, 389 U.S. 959; United States v. Moham-

*7 32 C.F.R. 1625.4 states only that a board shall not reopen

in any event where no new facts are presented, or where new

facts are presented which “if true, would not justify a

change”—.e., where no prima facie showing has been made (em-

phasis supplied).

*6 The traditional rule, first laid down by this Court (Zstep v.

United States, 327 U.S. 114, 122-123; Dickinson v. United States,

346 U.S. 389, 394; Witmer v. United States, 348 U.S. 375, 380-

381), and now codified by statute (50 U.S.C. App. (Supp. V) 460

(b)(3)), has been that the classification assigned by the local

board is valid and not subject to review if it has a “basis in fact”

discoverable from the record.

35

med, supra, 288 F. 2d 236, 238, In both instances, the

action taken must be upheld if it has a “basis in fact’’

discoverable from the record. Estep v. United States,

397 U.S. 114, 122-123; Witmer v. United States, 348

U.S. 375, 380-381. ‘‘[I]t is not for the courts to sit as

super draft boards, substituting their judgments on the

weight of the evidence for those of the designated agen-

cies.” Witmer v. United States, supra, 348 U.S. at 380-

381; Dickinson v. United States, 346 U.S. 389, 394.

In the instant case there is ample evidence to sup-

port the Board’s refusal to reopen (assuming arguendo

that such reopening is allowed). Even under Gearey,

the registrant is not entitled to reclassification unless

the ‘“‘Board finds * * * that the applicant’s beliefs

ripened only after he received his notice, and that his

beliefs qualify him for classification as a conscientious

objector’’ (368 F. 2d at 150). Since exempt status is a

matter of legislative grace (Keene v. United States,

supra, 266 F. 2d at 383), it is the registrant who

“bears the burden of clearly establishing a right to

the exemption.” Dickinson v. United States, supra,

346 U.S. at 395. Here, as Judge Ely (concurring below)

emphasized, Ehlert failed to supply ‘‘the barest

basis, even vestigial,’? upon which his board could

have made even the minimal Gearey findings. 422

F, 2d at 336.

2. With respect to the timing of his alleged

“change in status’, Ehlert represented in his Form

150 responses (A. 54-57) that he had ‘“‘received the

training and acquired the belief which [was] the

basis of [his] claim” during “[t]he time period * * *

from September 1960, to the present’’ (4.¢., July

1965). He identified the ‘“‘source and method”’ of his

training as ‘‘the intellectual atmosphere of the Uni-

versity of California and its surroundings and the

natural workings of an eager-to-know and questioning

mind.” His claim was late, he stated, due to an in-

ability “to make a decision of such moment until

faced with the absolute necessity to do so’’; and

added: “Since the receipt of my induction notice, I

have begun to be more fully aware of the implications

of military service at this time.” (A. 51).

From this information, the board could well have

concluded that “Ehlert had long been aware of his

beliefs but had simply been unable to decide whether

to claim the status to which he felt entitled.” ” 422 F.

2d at 336 (Ely, J., concurring). And as District

Judge Zirpoli observed, support for this interpretation

can be found in the five-year period it allegedly

took the “natural workings of [his] eager-to-know

and questioning mind” to develop his objection,

coupled with the fact that Ehlert did not assert

his claim until faced with boarding the bus to the

induction center, almost a full month following re-

ceipt of the notice to report. 422 F. 2d at 336. The

board’s action is, then, clearly sustainable in that there

is, at the very least, a “‘basis in fact’’ for finding on

this record that Ehlert did not experience a crystal-

* District Judge Zirpoli indicated at trial that he was then

inclined to place just such a construction on these statements.

See 422 F. 2d 336.

lization of inchoate beliefs only after receipt of

the notice.

3. Indeed, there is every reason to conclude that,

even assuming a late maturation, the beliefs peti-

tioner held at the time of his claim did not qualify

him as a conscientious objector. Thus, he expressed

the view that “service in the armed forces of this

country at this time is work toward the end of the de-

struction of the human race.” (A. 54; emphasis sup-

plied). His “duty”, he said (A. 54), “‘not to work for

the destruction of the human race is superior to any

duties which may arise from any human relation.’’ Ac-

cordingly, he “believe[d] in the use of force * * *

[u]nder any circumstances in which the use of force

would not make more probable the destruction of the

human race” (A. 55). As he assessed the present sit-

uation, however, “the sole purpose of military service

in this country today is preparation for a nuclear

orgasm which would be totally destructive of human

life and values’’ (A. 51).”°

These statements could reasonably be read as re-

flecting an “objection to war [which] does not rest at

all upon moral, ethical, or religious principle but in-

stead rests solely upon considerations of policy”’

(Welsh v. United States, supra, 398 U.S. at 342-343)

i.e., petitioners’ views are “essentially political, socio-

logical or philosophical” or emanate from a “‘merely per-

sonal code.”’ 50 U.S.C. App. 456(j). His objection was

*°In the same letter, he also stated: “[s]ince the receipt of

my induction notice, I have begun to be more fully aware of

the implications of military service at this time” (emphasis

supplied).

a ora x—

~ 38

not to “participation in war in any form’’ as required by

Section 6(j), but, at best, constituted a “selective’’ ob-

jection, which is no basis for exemption unless this

Court holds to the contrary in Gillette v. United

States, No. 85, this Term, or Negre v. Larsen, No. 325,

this Term. Thus, contrary to the assumption of Ami-

cus (Am. 12), petitioner’s selective service file can be

read as failing to present even a prima facie claim to

conscientious objector status.”

4. Accordingly, irrespective of its decision on the

timeliness issue, this Court may, on the basis of the

record now before it, appropriately uphold the action

of the local board in denying Ehlert’s post-induction-

notice claim. There is not here the question which

prompted a remand in Gearey—‘‘whether the Board

* * * refused to consider [the] claim simply because

of the late date at which it was raised” (United

States v. Gearey, 379 F. 2d at 919—Grearey IT; see

also 368 F. 2d at 150-151). That issue could not be

resolved in Gearey I because nothing said by Gearey’s

local board indicated that his file had been considered

and, since he had stated a prima facie claim (supra

n. 31), the court could find nothing in his papers sug-

gesting a basis in fact for the board’s refusal to re-

*1 Tt is immaterial that, as petitioner urges, he was not ac-

corded the “courtesy” interview which Gearey received ( Pet.

Br. 25-26). Gearey had stated a prima facie claim; it took a

personal appearance for the board to determine that his claim

was not “genuine.” Since petitioner did not state a prima facie

claim, the question whether it was really his stated beliefs which

motivated him was not put in issue and there was therefore no

occasion to interrogate him personally.

39

open.” Here, in contrast, Ehlert’s board wrote him

a letter (A. 61) informing him specifically that it had

“reconsidered [his] classification” on the basis of

“the information submitted on” his Form 150. More-

over, as we have shown, there was here no prima facie

showing of conscientious objection, and there was a

basis for concluding that petitioner’s beliefs, such as

they were, had not in fact crystallized only after the

notice was mailed. Had that been the situation pre-

sented in Gearey I, there would have been no occasion

for a remand and Gearey II. Cf. United States v.

Broyles, 423 F’. 2d 1299, 1302-1304 (C.A. 4). On sucha

record, the board is thus entitled to have its refusal to

reopen upheld by this Court. See 422 F. 2d at 336-337

(Ely, J., concurring).

CONCLUSION

For the foregoing reasons, the judgment of con-

viction should be affirmed.

ERwin N. Griswoip,

Solicitor General,

Wir Wison,

Assistant Attorney General,

Wa. Braprorp REYNOLDS,

Assistant to the Solicitor General,

BEATRICE ROSENBERG,

MarsHatL Tamor GOLDING,

Attorneys.

OctoBER 1970.

*? Thus, the district court was ordered to conduct a hearing to

determine whether the board members concluded, on the basis

of their courtesy interview with the registrant, that Gearey

was not sincere in his beliefs. After such a hearing, the convic-

tion was upheld when Gearey I/ upheld the trial court’s deter-

mination that the local board had so found.

U.S. GOVERNMENT PRINTING OFFICE: 1970