Reply Brief — Ehlert v. United States

Subject Index

Page

A. 32 CFR 1625.2 cannot preclude the reclassification of

a conscientious objector whose views matured after the

mailing of an order to report for induction

1. The weight of authority does not compel the denial

of reopening to the late-maturing conscientious

2. Construction of the regulation

(a) Legislative history and administrative author-

ity

(b) The plain language of the regulation

(e) There are no policy considerations of sufficient

weight to justify denying the late-maturing

conscientious objector the right to a reopening

after mailing of an order to report for induc-

tion

3. The government’s interpretation of the regulation

creates a class of conscientious objectors who are

denied a forum to assert their claims

B. Ehlert’s claim entitled him to a reopening and a re-

3

Table of Authorities Cited

Cases Pages

Aquilino v. Laird, 316 F.Supp. 1053 (W.D. Texas 1970),

on remand from 5th Cireuit, 429 F.2d 573 (5th Cir. 1970) 20

Baker v. Laird, 316 F.Supp. 1 (197J))ʒ 21, 22, 23

Boyd v. United States, 269 F.2d 607 (9th Cir. 1959)...... 1

Capobianco v. Laird, 424 F.2d 1304 (2d Cir. 1970)........ 2

Davis v. United States, 374 F. 2d 1 (5th Cir. 1987) 7

Dugdale v. United States, 389 F.2d 482 (9th Cir. 1968)... 8

Estep v. United States, 327 U.S. 114 (1946).............. 4

Feuer v. United States, 208 F.2d 719 (th Cir. 1953)...... 8

Goodwin v. Laird, No. C-70-808 (N. D. Cal., June 19, 1970),

SB Gel Berv.LiRep. SIGL ......cccccccccccccvccccccccves 20

Keene v. United States, 266 F.2d 378 (10th Cir. 1959).... 10

Leitner v. United States, 222 F.2d 363 (4th Cir. 1955).... 8

O’Callahan v. Parker, 395 U.S. 258 (1969)............... 2

Parrott v. United States, 370 F.2d 388 (9th Cir. 1966), cert.

denied BB7 UG. /in 7

Paszel v. Laird, 426 F.2d 1169 (2d Cir. 1970)............ 3, 26

Peterson v. Laird, No. C-70-807 (N.D. Cal., Aug. 12, 1970),

Sr 2

Porter v. United States, 334 F.2d 792 (7th Cir. 1964) 7, 11

Scott v. Volatile, No. 18,546 (3d Cir., Sept. 15, 1970) 3

Scott v. Volatile, . F. 2d (8d Cir. 1970) 4, 6, 26, 28

United States ex rel. Barr v. Resor, 309 F.Supp. 917 (D.

! AA ³˙mꝛAAAm.˙²˙·Ü² ͤ ͤ ease see 20

United States ex rel. Berman v. Craig, 207 F. 2d 888 (3d

/ ĩ ²ͤ Kee6th bees ** QÜůoĩ ĩ » O 9, 15

United States ex rel. Berman v. Resor, 429 F.2d 1340 (10th

yyy bans ˙ ²³ĩ²»¹ * ¼] ↄ G 3

United States ex rel. Healy v. Beatty, 424 F.2d 299 (5th

/// ĩ ² AAA ˙ . ˙ m TTT 20

United States v. Abbott, 425 F.2d 910 (8th Cir. 1970) . 2%

United States v. Al-Majied Mohammad, 364 F.2d 223 (4th

„„ „5 552 „„ eee eee eeee „„ „„ „„

—

TasLe oF AuTHORITIES CITED iii

United States v. Bartelt, 200 F.2d 385 (7th Cir. 1952).... 7

United States v. Broyles, 423 F.2d 1299 (4th Cir. 1970)... 26

United States v. Freeman, 388. F. 2d 246 (7th Cir.-1967)... 17

United States v. Gearey I, 368 F.2d 144 (2d Cir. 1966),

cert. denied 389 U.S. 950õ˖ũ r12ta t cece cece eeeeeeeeeees 3, 10

United States v. Gearey II, 379 F.2d 915 (2d Cir. 1967),

cert. denied 389 U.S. 9500-:r9 .. 3, 8

United States v. Haughton, 413 F.2d 736 (9th Cir. 1969) 26

United States v. Helm, 386 F. 2d 434 (4th Cir. 1967), cert.

denied 390 U.S. 95ꝶũꝶ h. ll

United States v. Jennison, 402 F.2d 51 (6th Cir. 1958),

cert. denied 394 U.S. 91t112729 cece eeeeeeeeceeeees 8

United States v. Kroll, 400 F.2d 923 (3d Cir. 1968), cert.

denied 393 U.S. 10699 . 7

United States v. Maine, 417 F.2d 951 (10th Cir. 1969).... 3

United States v. Mohammed, 288 F.2d 236 (7th Cir. 1961),

cert. denied 368 U.S. 8200h)0u . 8

United States v. Sandbank, 403 F.2d 38 (2d Cir. 1968),

cert. denied 89 S.Ct. 13o111!!l! ll. 3

United States v. Schoebel, 201 F.2d 31 (7th Cir. 1953)... .11, 12

United States v. Seeger, 380 U.S. 163 (1965)...........-- 5, 28

United States v. Taylor, 351 F.2d 228 (6th Cir. 1965).... 7,8

United States v. Underwood, 151 F.Supp. 874 (E.D. Pa.

b e e ee eee 15

United States v. Weller, No. 77, Oct. Term 1970 24

Welsh v. United States, 398 U.S. 339 (1970).............

32 C. F. R.:

Z 6

e e e eee 6

D ̃ r 15, 17

b eb 6

e ne

50 U.S.C. App.:

Section 451 e % %% 6646 23

„„ „„ 18, 19

ee dee 24

Gestion ())

iv Tam oy AuTHonities Crrep

Regulations

Army Regulations: Pages

re eee eee 20, 21

635- es bes ebe ee ee ese 15

Statutes

e k!! „ 7

Pub. L. 90-40 Seetion 1 (1), 81 Stat. 1oob0ů 23

Military Selective Service Act of 19/7 12, 23

Miscellaneous

113 Congressional Record, May 25, 1967:

bbb eee ee eee e eee 12, 13

Page 141il!lTW:”ss22ũꝛꝓdõd E . 23, 24

Department of Defense Directive 1300.6 ................. 20, 21

IN THE

Supreme Court of the Anited States

OcrToBER TERM, 1970

No. 120

WnIIAX Wakp ERHLERr, :

Petitioner,

15 ,

Unitep States oF AMERICA,

Respondent. |

On Writ of Certiorari to the United Btates

Court of Appeals for the Ninth Circuit

REPLY BRIEF FOR THE PETITIONER

4 32 OFR 1625.2 OANNOT PREOLUDE THE REOLASSIFIOA-

TION OF A OONSOIENTIOUS OBJECTOR WHOSE VIEWS

MATURED AFTER THE MAILING OF AN ORDER TO REPORT

FOR INDUCTION

The Government has taken the position advanced

by Judge Duniway concurring below, that the de-

velopment of conscientious objection, whether or not

some would regard it as beyond the registrant’s ‘con-

trol,’ is not the kind of circumstance that was con-

templated” by the regulation. (R.O.B. 19.)?

1R.0.B. refers to the Government’s Opening Brief. “The Regu-

lation” refers to 32 CFR 1625.2.

The Government thereby abandons the rationale of

the majority below, that presumptively every human

is a rational being having a free will and in complete

charge of his own thinking.” Appendix (hereinafter

A) 342

The Government reasons as follows: If it is held

that late-maturing conscientious objection views are

a change in the registrant’s status due to circun-

stances beyond his control, then the language of the

regulation terminating the right to reopening and

reclassification after an order to report for induction

is mailed will be read out of the regulation, and

dilatory claims must be heard, to the detriment of the

smooth supply of manpower to the military.

Second, the Government reasons that if late-matur-

ing conscientious objection views may be a change in

status requiring reopening, then the local boards will

be plunged into a thicket of philosophical speculation

inappropriate to their nature and function.

Therefore, the Government continues, such claims

are not within the intended ambit of the regulation,

and no reopening or reclassification may be had.

The rule for which petitioner argues is as follows:

When the local board is presented with a post-

induction-order prima facie conscientious objector

claim, i.e., one which on its face would entitle the

claimant to the exemption sought, the local board

must make a finding as to when the views matured.

2However, the Government attempts to create a mind-set for this

dubious proposition, without citing any authority which would

support such a conclusion. (R.O.B. 15, 17, 22, 23, and 27.)

If the board finds that the views matured after the

order to report for induction was mailed, it must

reopen and reclassify the registrant. United States v.

Gearey I, 368 F.2d 144 (2d Cir. 1966), Cert. Denied

389 U.S. 959; United States v. Gearey II, 379 F.2d

915 (2d Cir. 1967), Cert. Denied 389 U.S. 959; Paszel

v. Laird, 426 F. 2d 1169 (2d Cir. 1970) ; Scott v. Vola-

tile, No. 18,546 (3d Cir. Sept. 15, 1970); United

States ex rel. Berman v. Resor, 429 F.2d 1340 (10th

Cir. 1970).“

This rule in no way reads out of the proviso the

most essential element of proof necessary for the

extraordinary relief of last-minute classification” by

requiring only a showing of prima facie entitlement

to I-O classification, as asserted by respondent.

(R. O. B. 21.) This misconception, as the Court of

Appeals for the Second Circuit explained in Pussel v.

Laird, supra, is derived from a misreading of the

short per curium opinion in United States v. Sand-

bank, 403 F.2d 38 (2d Cir. 1968), Cert. Denied 89

§.Ct. 1301, indulged in by certain district Courts in

that circuit. That misconception has been dispelled.

Under the rule urged by petitioner, in addition to

presenting a prima facie claim for conscientious ob-

jection, the registrant must also allege facts from

*The 10th Circuit there reads its earlier opinion in United

States v. Maine, 417 F.2d 951 (10th Cir. 1969) as holding that

The emergence of beliefs of conscientious objection after an

induction order has been issued can constitute “a change in

status resulting from circumstances over which the registrant

has no control” within the meaning of the quoted regulation.

429 F. 2d at 1343,

and not, as respondent asserts, as merely “dictum in related cases.”

(R.0.B. 16 n. 3.)

4

which a board may conclude that the registrant

neither slept on his rights nor, after his order to

report was mailed, deliberately changed his status to

achieve an exemption. Should the board find that the

registrant has failed to sustain this additional burden,

it need not reopen even if the claimant would other-

wise clearly be entitled to exemption, and, of course,

such a conclusion is unassailable upon judicial review

if there exists a basis in fact to support it. Estep v.

United States, 327 U.S. 114 (1946).

Under the authority of the cases cited above, the

teaching of the philosophers, and common experience,

petitioner has argued and the dissenters below agreed

that conscience is by definition not compellable, that

views which may be consciously altered are unworthy

of that name, and that the majority below was there-

fore wrong in presuming the contrary. Further, even

where unarguably controllable activities have pro-

vided the basis for one’s conclusions, e.g., study and

inquiry, the conclusions themselves are beyond one’s

control, insofar as one has fairly permitted the evi-

dence to determine the conclusion. See Aldisert, J.,

concurring in Scott v. Volatile, ........ 1

Cir. 1970) (slip opinion, p. 18). Such a result satisfies

both the national policy of protecting conscience and

the reasonable requirement that claims for exemption

4We do not concede as an abstract proposition that bona fide

conscientious objectors may be compelled to choose between mili-

„

rted, whenever this occurs. We are not, however, com-

peed the facts and law of this case to argue this perhaps more

cult position, which the legislative intent cited infra at p. 23

would seem to support. And see Petitioner’s Opening Brief (here-

inafter P.O.B. 17, n. 27).

from military service be promptly asserted. It does

not, as respondent suggests, require the Court to take

sides in a scholastic dispute.

Local boards were not created to resolve philosoph-

ical questions in the abstract, but to deal in concrete

cases. Both parties agree that the purpose of the

regulation is to relieve the board of the burden of

granting the ordinary procedural privileges to merely

dilatory claims asserted after a certain cut-off date.

The board then must determine whether the claim is

dilatory, by determining whether the facts upon which

the claim is based existed and were known to exist

prior to the cut-off date (culling out those who have

slept on their rights), or whether the registrant,

learning that induction is imminent, has deliberately

created a set of circumstances in a last-minute at-

tempt to forestall induction by achieving a deferred

status.

In actual practice, the scope and standards of the

inquiry are familiar to local boards. Although the

decision is difficult and much rests upon it, the board

is not required to determine whether the registrant’s

statement is, in a philosophical or theological sense,

true“, or even whether it is comprehensible. The

board is required to determine, from facts submitted

by the registrant, whether the registrant’s post-mail-

ing claim is based on pre-existing views tardily as-

serted, or is the result of a conscious effort to acquire

views in oppostion of war in any form—in the words

This, contrary to respondent’s contention, is the inquiry for-

51 to be pot under United States v. Seeger, 380 U.S. 163

of Judge Aldisert, ‘‘Opt[ing] for a belief without

being ‘driven’ by the evidence, or in spite of the

evidence,” Scott v. Volatile, slip op. 18—or is, like

Ehlert’s, a claim which demonstrates the coalescence

of previously unformed views into sincere conscien-

tious objection after the notice to report was mailed.

If the board finds the latter set of facts to exist,

then, petitioner insists, the board must reopen and

reclassify the registrant.

There is no substance to respondent’s assertion that

the regulation can not apply to late-maturing con-

scientious objectors and that neither Courts nor local

boards can interpret the language and intent of

Congress and the President to achieve a sensible

result. Even if this proposition were true, it would

not follow that the late-maturing conscientious ob-

jector must bear the burden of a regulation contain-

ing a deadline for asserting his claim without the

benefit of the exception to the deadline found in the

same regulation.“ Such an interpretation, we have

argued, would be ultra vires and void. See P.O.B. 17,

n. 27. We shall show that the case law, the legislative

history, the language of the regulation and consider-

The Government’s position creates loose ends and requires fu-

tile acts both of the registrant and of the local board. The regis

trant must still notify the local board of any change in his status,

32 CFR 1625.1(b), even though, according to the Government,

they are foreclosed from acting upon that notice. The board must

send the registrant an SSS Form 150, 32 CFR 1261.11, although

they cannot act upon it. The registrant must return that form

in a fixed number of days, 32 CFR §1606.51(a), SSS Form 150,

and yet the board may not act upon it. The statute and the regu-

lations require all these acts by the parties; yet all these acts, if

respondent is correct, are sterile, dry and futile.

7

ations of public policy do not support such an un-

conscionable result.

1. The Weight of Authority Does Not Oompel the Denial of

Reopening to the Late Maturing Conscientious Objector.

The Government asserts that acceptance of peti-

tioner’s position would have the result of overturning

“the weight of judicial . . . precedent which sustains

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

conscientious objector claims. (R. O. B. 16.)

Many of the cases referred to by respondent either

do not speak to the issue at hand or reason to a dif-

ferent conclusion than that reached by respondent.’

The Government has cited seventeen cases in sup-

port of its arguments. (R.O.B. 15-16.) In seven of

these cases, the registrant’s claim was either made be-

fore the order to report for induction was mailed, or

was based upon a status existing before the order was

mailed.

613.) This procedure

and was amended

385 (7th Cir. 1952); Boyd

1959); United States v.

228

= F.2d 792 (Ith —

388 (9th Cir. 1966) cert. ; 1

Kroll, 400 F. 2d 923 (3d 1968) cert. denied 393 U.S. 1069;

Davis v. United States, 37 F.2d 1 (5th Cir. 1967).

In three of the cited cases, the registrant either

never made a claim for exemption or introduced no

facts to support his elaim.“ In these cases, the result

would have been the same had the Gearey rule been

applied.

Leitner v. United States, 222 F.2d 363 (4th Cir,

1955) is simply not in point.

United States v. Jennison, 402 F.2d 51 (6th Cir,

1958), Cert. Denied, 394 U.S. 912, is highly equivocal.

The holding of the Court was two-pronged. Taylor,

n. 8, supra, was read as holding that a draft board is

not required to consider a claim of conscientious objec-

tion asserted after notice of induction has been mailed

even if a conversion to conscientious objection has

matured after mailing of such notice. The court did

not hold that such reconsideration was barred. Second,

the Jennison Court held that the claim presented in

that case was not such as to require the Selective

Service authorities to find that, in such period, there

had occurred a change in his status resulting from

circumstances ‘over which the registrant had no con-

trol.“ 402 F. 2d at 52.

The Court said:

It appears that appellant's beliefs likely had

matured prior to receipt of the induction notice

. . . 402 F.2d at 54.

Feuer v. United States, 208 F. 2d 719 (9th Cir. 1953); United

States v. Mohammed, 288 F.2d 236 (7th Cir. .1961) cert. denied

368 U.S. 820; Dugdale v. United States, 389 F.2d 482 (9th Cir.

1968).

Judge McCree, dissenting, felt that the regulation

could not stand unless it was interpreted so as not to

Two other cases cited as authority by respondent

actually support the position advanced by the peti-

In United States ex rel. Berman v. Craig, 207 F.2d

888 (3d Cir. 1953), the local board classified the

registrant I-A, then mailed an order to report for

induction less than 10 days after the date of that

classification. Berman’s application for ministerial

deferment was received after the order to report for

induction had been mailed, but within 10 days of the

date he learned of his acceptance to a theological

seminary. The Court of Appeals reversed his convic-

tion, finding a violation of procedural rights. The

Court said:

Sections 1625.1 and 1625.2 of the Regulations

taken together require a local board to consider

anew the classification of a registrant who re-

ports, within 10 days after it occurs, a change

in his status which may require his reclassifica-

tion. This it is the board’s duty to do even

though, as here, an order to report for induction

has been sent to the registrant, provided he has

not yet been inducted. Such a timely report was

made . . by Berman through his telegram of

July 3, 1952. . . . The local board should have

given consideration to Berman’s change of status

and determined whether it required his reclassifi-

cation. 207 F. 2d 888, 891.

Thus, as early as 1953, the Third Circuit held that

the mailing of an order to report for induction is

not an absolute bar to reopening and reclassification

even where the change in status antedates that mailing,

The holding in Keene v. United States, 266 F.2d 378

(10th Cir. 1959), is directly contrary to the concur-

ring opinion of Judge Duniway below, upon which

respondent relies so heavily, and in fact was relied

upon as authority by the Court in Gearey I, supra.

In Keene, the defendant applied for an exemption as

a conscientious objector by letter on the date his order

to report for induction (SS Form 252) was mailed

to him by his local board. The Board made a specific

finding of no new change in status due to circum-

stances beyond his control. The Court there found

that the defendant had entertained the beliefs that he

claimed exempted him from service for at least three

months prior to the order to report for induction;

hence, there was no change in status after the induc-

tion notice was mailed. As to the applicability of the

regulation, the Court said:

We think the Regulations have application to

a conscientious objector’s claim as all other claims

for a change in status. . . Our question then is

narrowed to whether the appellant is entitled to

have his classification reopened and considered

anew on the grounds of a change of status due

to circumstances beyond his control. This is to

say, a change of status due to a change of con-

science occurring after the notice to report was

mailed. If such change did occur, the board

erroneously refused to reopen and review, and an

appeal lies therefrom by force of the statute,

although no provision in the Regulations is made

therefor. 266 F.2d 378, 384. (Emphasis added.)

ll

The cases upon which respondent relies which do

in fact support respondent’s position in turn rely on

United States v. Schoebel, 201 F.2d 31 (7th Cir.

1953). Not only was the issue as there presented not

thoroughly briefed and argued by counsel, since it

appears that it was first raised at oral argument on

appeal, but the decision rendered by that Court was

devoid of any reasoning, logic or authority to support

its conclusion that conscientious objector beliefs which

mature after the mailing of an order to report for

induction fall outside of the contemplated scope of

the Regulation. The Court there merely said:

On oral argument before this court, defend-

ant’s counsel suggested that conscientious objec-

tions resulting from the promptings of a regis-

trant’s conscience would be a change in status

over which the registrant had no control. We

cannot acquiesce in such a strained interpreta-

tion of the regulation. There was no other claim

of a change in status. The Board did not find

any change in defendant’s status, and therefore

in failing to reopen defendant’s classification it

did not exceed its powers or act in an arbitrary

manner. 201 F.2d at 32.

The balance of respondent’s authority rests upon

this insecure foundation. United States v. Helm, 386

F.2d 434 (4th Cir. 1967) Cert. Denied 390 U.S. 958,

relies solely upon United States v. Al-Majied Moham-

mad, 364 F.2d 223 (4th Cir. 1966). That case rested

its opinion upon Schoebel, supra, and upon Porter v.

United States, 334 F.2d 792 (7th Cir. 1964). Porter,

in turn, relied upon Schoebel (although, as indicated

earlier at n 8, Porter’s change of status antedated

12

his order to report), and, as we have shown, the

Schoebel “holding” is almost an afterthought, unsup-

ported by analysis or authority.

2. Construction of the Regulation.

(a) Legislative history and administrative authority.

The Government theorizes that all post-mailing

claims are barred except in ‘‘the unusual emergency

situation where an unforeseeable event, such as a

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

of deferment . . . or exemption,” (R.O.B. 14-15), and

therefore concludes that hardship, dependency, and

sole-surviving son claimants may be heard, while late-

maturing conscientious objectors may not. The Gov-

ernment cites nothing to support this conclusion,

which is in fact directly contrary to the express intent

of Congress.

The congressional] debates surrounding the passage

of Senate Bill 1432, which became the Military Selec-

tive Service Act of 1967, indicate no such intent to

discriminate against conscientious objectors.

In the House of Representatives, in a summary of

the provisions of the House Committee version of 8.

1432, we find the following:

Mr. Smith of California: Registrants claim-

ing conscientious objection will therefore be af-

forded the same appeal procedures and adminis-

trative remedies that are available to all other

registrants. 113 Cong. Rec., May 25, 1967, 14094.

Representative L. Mendel Rivers, the Chairman of

the House Committee on Armed Services, spoke in

almost identical terminology :

13

Registrants claiming conscientious objection

will therefore be accorded the same appeal pro-

cedures and administrative remedies that are

available to all other registrants. Id., 14097-98.

Thus, it is clear that Congress intended conscientious

objector claimants to have identical rights of reopen-

ing and reclassification as hardship claimants, sole-

surviving son claimants, or any other claimant. As

for administrative precedent (R.O.B. 16), the Gov-

ernment cites no authority, nor does it question that

the state directors of at least two states have provided

detailed guidelines for processing post-notice claims

of induction for conscientious objector status. (P.O.B.

28, n. 53.)

(b) The plain language of the regulation.

Respondent, in accord with Judge Duniway below,

theorizes that ‘‘what the draftsmen of the regulations

contemplated . . . was simply the occurrence of some

objectively identifiable extraneous event or circum-

stance .. . and not some element of the registrant’s

internal thought processes.” (R.O.B. 23-24.)

Such an intent is not clear. No authority beyond

respondent’s own reading of the language of the

regulation is cited to show such an intent, save the

concurring opinion of Judge Duniway below. The

argument of that learned Judge was that ‘‘circum-

stances” must mean circumstances external to the

registrant, and since conscience is an internal change,

the regulation cannot apply. The basis for that opin-

ion was a particular reading of the words of the

14

regulation. Respondent suggests this reading is er-

roneous, and that an alternative reading is correct

and just. Perhaps it is the Latin origins of the word

„eireumstances“ — standing around”—that leads to

the image of events outside the registrant somehow

being required by the regulation. But the regulation

does not read a change in the registrant resulting

from circumstances beyond his control,” it reads a

change in the registrant’s status resulting from cir

cumstances beyond his control.” Thus, the regulation

does not require some external act or event standing

around” the registrant; it requires some act or event

external to the registrant’s status.

The registrant’s status in this context can only

mean his draft status, and, in the case at bar, the

only relevant change in that status is the change in

the registrant’s views from a position where military

service does not violate conscientiously held beliefs to

a position where such service has become morally im-

possible.“

There is no specific language in the regulation

which states that claims of conscientious objection

shall categorically be barred after an order to report

is mailed. This is not surprising, in view of the

legislative history previously cited. But certainly had

the President intended the regulation to bar these

claims, such an exclusion would have been carefully

spelled out, in view of the nature of such claims and

the long-standing tradition of affording them protec-

10See the rebuttal of Judge Duniway’s argument by Merrill, J.,

dissenting below at A. 44.

tion. See United States v. Underwood, 151 F.Supp.

874, 876 (E.D. Pa. 1955).

The Government argues that there is no discrimi-

nation against conscientious objectors, because claims

of a change to student or occupational status are also

foreclosed by the regulation. But it is not possible

that one may enroll in a school“ nor is it likely that

one’s occupation could become necessary to the na-

tional interest through circumstances beyond one’s

control.

The regulation may properly be applied to prevent

a registrant from gaining a reopening and reclassifi-

cation by unarguably volitional acts.

Further, no reason is advanced for the Govern-

ment’s proposition that it is proper to make an excep-

tion for belated claimants for deferment on grounds

of extreme hardship and not for belated conscientious

objector claimants. Army Regulation 635-200 provides

a forum and a remedy for in-service hardship claim-

ants; the inquiry may be more complex and time-

consuming in the hardship case than in the conscien-

tious objection case, and, perhaps most important, the

military forum is at least accessible to the hardship

claimant, whose conscience does not compel him to

refuse to submit to induction.

But see United States ex rel. Berman v. Craig, 207 F.2d 888,

890 (3d Cir. 1953).

12Normally, at least, this is true, but suppose that, prior to

April 23, 1970 when occupational deferments were abandoned, an

accident in a defense plant incapacitated all but one engineer on

a team of engineers doing critical defense research. The services

of that survivor may have become necessary to the maintenance

of the national health, safety or interest within the meaning of

32 CFR 1622.22, through circumstances beyond his control.

n;, ee

justify denying the late-maturing conscientious objector the

right to a reopening after mailing of an order to report for

The Government argues that the purpose of 32

CFR 51625.2 is to prevent dilatory claims from dis-

rupting the operation of the Selective Service System.

Further, the Government insists that to recognize

such claims is unfair to other registrants, whose in-

duction would thereby be accelerated, and who might

be drafted where in the normal course of events,

[they] would not have been reached”. (R.O.B. 14, n.

6.) These factors are referred to by the Government

as overriding policy considerations”. (R. O. B. 14.)

We agree with respondent as to the purpose of the

regulation. However, a true late-maturing conscien-

tious objection claim is not ‘‘dilatory”—that is, either

made for delay or made after the registrant has slept

on his rights. Here petitioner’s claim for exemption

as a conscientious objector was made promptly upon

the maturation of the views it communicated to the

board. To insist, as the Government does, that

Ehlert's claim should have been submitted before his

conscientious objection was fully mature, is both ab-

surd and an invitation to make false statements with

respect to his Selective Service classification, a viola-

tion of law.“

In response to the unsupported assertion that

granting a few conscientious objector claimants the

right to have their claims heard will plunge the

16650 U.S.C. App. §462(a).

17

Selective Service System into chaos, petitioner has

discussed at length in his opening brief how post-

ponements and delays in inductions are quite rou-

tinely granted in numerous other cases without any

apparent disturbance in the orderly satisfaction of

military manpower requirements. (P. O. B. 27-29.)

Nor, in any given case, is the burden of dealing

with a conscientious objection claim significantly

greater than that encountered in resolving other

routinely-handled claims. The material before the

board in deciding a conscientious objection claim is

generally the registrant’s completed Form SSS 150

(Special Form for Conscientious Objectors) (See A

54) and whatever supporting letters he himself can

muster. On the other hand, the inquiry necessary to

determine an extreme hardship claim, 32 C.F.R.

§1622.22, especially if that claim involves emotional

- hardship, may call for inquiries about his financial

situation, his family life, the emotional and physical

health of his dependents, a projection of the impact

of his induction upon these elements, and finally a

decision based upon these objective and subjective

factors which may be much more difficult to make

than that required in the conscientious objection

situation.

The impact upon military manpower of the brief

delay which a reopening might require is, of course,

nil, as the services of the sincere conscientious ob-

jector claimant will be denied to the armed forces in

any case. See United States v. Freeman, 388 F.2d 246.

(7 Cir. 1967). @

18

The government asserts that to recognize late

maturing conscientious objection claims is unfair to

other registrants, whose induction is accelerated and

who might be drafted where ‘‘in the normal course of

events, [they] would not have been reached.” (R. O. B.

14, n. 6.) This only begs the question as to what the

so-called normal course” is and should be. It is only

unfair to other registrants to hear such claims if the

necessary postponement or cancellation of the immi-

nent induction order is unlawful. If the government

is arguing that to grant exemption from service to

those conscientiously opposed to participation in war

in any form is unfair to others, its remedy is to seek

the repeal of 50 U.S.C. App. 456()).

In sum, the government’s contentions do not ad-

vance any legitimate purpose, and lead to the follow-

ing results: No relief to other registrants, some slight

relief to the local board, and no relief to the military

who, the government later insists, should itself

shoulder the burden of hearing such claims.

Compare these ephemeral benefits with the other

results of the government’s interpretation: In the

face of a time-honored tradition of protection of the

conscience of the individual more ancient than the

Republic itself, and in the face of an Act of Congress

which provides that ‘‘nothing contained in this Title

. . . Shall be construed to require any person to be

subject to combatant training and service in the

armed forces of the United States who, by reason of

religious training and belief, is conscientiously op-

posed to participation in war in any form,” 50 U.S.C.

App. 456(j), sincere conscientious objectors of peti-

19

tioner’s class are denied even a hearing on their

claims for exemption.“

3. The Government’s Interpretation of the Regulation Creates

a Class of Conscientious Objectors Who Are Denied a Forum

to Assert Their Claims.

We have shown that the regulation as construed

below creates a no- man's land” for that class of con-

scientious objector claimants whose views mature be-

tween the date that an order to report for induction

is mailed and the date set for induction. (P.O.B. 21.)

The Government dismisses this argument by asserting

that “‘[the claim] can be considered by the military

immediately upon induction.” (R. O. B. 25.) However,

petitioner is not merely a claimant seeking a forum;

he is a man who is conscientiously opposed to par-

ticipation in war, to the extent that it is morally im-

possible for him to submit to induction into the

Armed Forces.

The Government’s position creates the paradox

whereby a claimant for conscientious objector status

must submit to induction in order to assert that it is

impossible for him to submit to induction!

We reaffirm that the regulation as interpreted below

bars Ehlert from any forum, either Selective Service

14The government argues that there is no absolute statutory right

to exemption because §456(j) only applies when the claim “is sus-

tained by the local board.”

Even assuming arguendo that conscientious objectors only have

a statutory right to exemption after the board ts them a con-

scientious objector classification, the language of the statute fairly

— * t at the very least to an opportunity to raise a claim

have a decision upon the merits without having first to sub-

mit to induction, upon which no regulation may i ’

Respondent argues for a rule which prevents the local board

from examining the claim, much less sustaining it.

20

or military, and is thus unconstitutionally discrimina-

tory, contrary to national policy and contrary to the

mandate of Congress.

In two categories of cases, registrants who had sub-

mitted claims for exemption as conscientious objector

prior to induction have been granted habeas corpus

relief by the Courts after the military has denied

their subsequent applications for discharge as con-

scientious objectors pursuant to Department of De-

fense Directive (hereinafter DoD) 1300.6.

The first category consists of those cases where the

Courts have found that the later in-service claim was

somehow different from the claim earlier denied by

Selective Service, and thus not barred by Army

Regulation 635-20 Para. 3b(2)."* United States ex rel.

Healy v. Beatty, 424 F. 2d 299 (5th Cir. 1970); United

States ex rel. Barr v. Resor, 309 F.Supp. 917 (D.D.C.

1969); Aquilino v. Laird, 316 F.Supp. 1053 (W. D.

Texas, 1970) [on remand from the Fifth Cireuit, 429

F.2d 573 (5th Cir. 1970) J. And see Goodwin v. Laird,

No. C-70-808 (N. D. Cal., June 19, 1970), 3 Sel. Serv. L.

Rep. 3151.

favorably considered when

(2) Based solely on conscientious objection which existed, but

was * claimed prior to notice of induetion . . (changes empha-

As we shall show, this change affords no relief to the conscien-

tious objector who cannot submit to induction.

21

The second category is similar to the case at bar

and consists of cases where the pre-induction claim

was made but not decided on the merits. Baker v.

Laird, 316 F.Supp. 1 (1970) [special form for con-

scientious objectors requested prior to mailing of in-

duction order but received afterward; Board refused

to reopen under 32 C.F.R. §1625.2]; Peterson v.

Laird, No. C-70-807 (N.D. Cal., August 12, 1970), 3

Sel.Serv.L.Rep. 3120 [misadvice by local board, re-

fusal to supply special form for conscientious objec-

tors].

In Baker the petitioner submitted a completed re-

quest for classification as a conscientious objector

after an order to report for induction had been

mailed. The local board refused to reopen, and Baker

submitted to induction. After Basic and Advanced

Training, Baker applied for a conscientious objector

discharge, which was denied. In granting habeas

corpus, the district Court held: (1) Baker’s views had

strengthened and changed during his service period,

hence his in-service claim was not based solely on

conscientious objection claimed and denied by the

Selective Service System prior to induction,” [em-

phasis added] and (2) Baker’s claim, while made

before induction, was not denied on the merits, but

on procedural grounds, hence his in-service claim was

not barred by AR 635-20, 13 (2).

16We discuss only the Army regulations implementing DoD

1300.6, because the relevant cases involve soldiers, the other serv-

ice regulations are very similar, and the vast majority of draftees

are inducted into the Army.

— —

22

The Court said:

“The crystallization requirement of

Regulation 635-20 is not intended to deny sincere

conscientious objectors an opportunity to have

their claims considered, but only to designate the

proper forum in which their claims should be

brought. See Milton v. Commanding General,

F.Supp. ... [No. C-70-368] (N.D. Cal. 1970).

Such a principle of forum apportionment guaran-

tees to the applicant at least one fair chance to

have his conscientious objector claim considered.

The Government contends that for Baker’s in-

service application to be entertained would be

giving him a second bite at the legal apple, but

the facts of the present case are such that to

accept the Government’s position would be to

afford Baker little more than a brush across the

mouth of that cherished fruit. Crystallization is

undeniably a subtle and ephemeral process which

should not be interpreted in such a way as to

deny relief to a sincere conscientious objector.

Goodwin v. Laird, F.Supp. —.. [3 Sel. Serv.

L.Rep. 3151] (N.D. Cal., 1970).” 361 F.Supp. at

5.

While this holding, if generally followed,“ will

ameliorate the ‘‘no-man’s land” effect for late-matur-

‘7Note that the Army denied Baker’s claim, and the Govern-

ment vigorously defended their action in doing so, in the face of

respondent’s assertion that. . . nor to our knowledge has the

Directive ever been so applied. ” (R.0.B. 26.)

As William P. Thompson, the representative of the National

Council of Churches, pointed out during the Senate hearings on

the 1967 Act,

“It is our impressicn that the administrative provisions of

Directive No. 1300.6 are discretionary with the Armed Serv-

ices, and that recently this diseretion has been exercised in

ways that seemed arbitrary and unnecessarily harsh.” Senate

— on Armed Services, Hearings on S. 1482, 379

=

23

ing claims submitted by registrants who can conscien-

tiously submit to induction, it does not fulfill the

guarantee of at least one fair chance to have his

claim considered” to the registrant who, like Ehlert,

eannot in conscience submit to induction. To stretch

the Baker metaphor, it places the legal apple in a

tree which the registrant cannot, in conscience, climb.

Nor did Congress intend that persons whose con-

scientious objection matured before induction should

be required to submit to induction in order to have

their claims heard.

In the majority report of the House Committee on

Armed Services on the bill which became the Military

Selective Service Act of 1967,“ a result, identical to

that which the Government here suggests, was pro-

posed by an amendment requiring all conscientious

objectors to submit to induction and to noncombatant

service. There was serious objection on the floor of

the House:

Mr. Kastenmeier: The Committee bill, as re-

ported, would return to the World War I prac-

tice of inducting conscientious objectors into the

armed forces and be required to perform non-

combatant duties. This procedure in World War

I created many difficulties, court martials, long

imprisonments, and even death sentences, though

no executions were carried out. Cong. Rec., May

25, 1967, 14119.

N Mr. Reuss: Requiring the actual induetion of

) eonscientious objectors goes directly counter to

the valid principles of conscientious objection. I

1850 U.S. C. App. §§451, et seq., June 30, 1967, Pub. L. 90-40,

§1(1), 81 Stat. 100.

hope this change in the new law will be rejected,

Id., 14131.

This proviso was unanimously amended out on mo-

tion of Representative L. Mendel Rivers, Chairman

of the House Armed Service Committee. Id., 14141,

As Representative Schwerber said:

It cannot be emphasized too strongly that for

the great body of religious objectors the objec-

tion is not merely to war and killing, but to in-

duction in the armed forces, and to service under

the military arms of the government.. [citing

the Mennonites]. The tragic result of not accept-

ing the amendment now offered could well be the

imprisonment of thousands of religious objectors

sincerely desiring to be loyal to their Nation but

unable to violate their higher loyalty to that

which they believe God requires of them. . Ibid.

Nor would requiring late-maturing conscientious

objectors to have their claims heard by the military

make any sense in terms of forum apportionment.

Congress has placed upon the Selective Service Sys-

tem the fundamental] responsibility of making find-

ings and sustaining or not sustaining claims of con-

scientious objection. The local board is required to be

composed of members residing in the county of its

jurisdiction, 50 U.S.C.App. §460(b)'(3), and hence

presumably having some opportunity for acquaintance

with the registrant and whomever he may request to

support his claim.“ It is their sole function to select

19This is, at least, the position of the Government. See United

States v. Weller, No. 77 this Term, Brief for the United States, 30.

But see Brief for appellee in that case, 45.

25

and supply to the military certain numbers of fit and

willing men for training and service.

For the Army, on the other hand, to process con-

scientious objectors is a serious burden and a distrac-

tion from their fundamental mission. As this Court

has said in another forum-allocation context:

Unlike courts, it is the primary business of

armies and navies to fight or be ready to fight

wars should the occasion arise. But trial of sol-

diers to maintain discipline is merely incidental

to an army’s primary fighting function. To the

extent that those responsible for performance of

this primary function are diverted from it by the

necessity of trying cases, the basic fighting pur-

pose of armies is not served. O’Callahan v. Par-

ker, 395 U.S. 258, 262 (1969).

B. EHLERT’S CLAIM ENTITLED HIM TO A

REOPENING AND A REOLASSIFICATION

Under the rule urged by petitioner, he is entitled

to a re-opening and re-classification if the local board

finds that the applicant’s briefs ripened only after

his order to report for induction was mailed and that

his beliefs qualify him for classification as a conscien-

tious objector. Two basic principles apply to this rule:

The claimant bears the burden of showing the above

facts to be true, and the local board’s decision is con-

elusive on review if there exists a basis in fact to

support it.

What was the decision of the local board in this

ease? The Board decided not to re-open because the

“claim was not a change in [Ehlert’s] status which

26

was beyond [his] control.” A 61. The Board did not

dispute, or, apparently, ever reach the genuineness of

Ehlert's claim, nor did they make a finding as to

when his views matured. Thus, we do not know

whether the Board decided that Ehlert’s views pre-

existed the order to report or whether they felt his

views were not sincerely held, or whether they errone-

ously decided his views were insufficiently ‘‘religious.”

Welsh v. United States, 398 U.S. 339 (1970).

A number of recent cases have held that the local

board’s failure to state any reason for denying a

registrant’s prima facie claim for exemption vitiates

the legality of a subsequent order to report for induc-

tion. Scott v. Volatile, supra; United States v.

Broyles, 423 F.2d 1299 (4th Cir. 1970) (en banc);

Capobianco v. Laird, 424 F.2d 1304 (2d Cir. 1970),

pet. for cert. pending (1970); Paszel v. Laird, supra;

United States v. Abbott, 425 F.2d 910 (8th Cir. 1970);

United States v. Haughton, 413 F.2d 736 (9th Cir.

1969).

The reasoning is significant in the present context:

In any case where the board fails to disclose

the basis for its decision, we risk blind endorse-

ment of a mistake of law. United States v.

Broyles, 423 F.2d at 1304.

Thus, behind the mask of a refusal to reopen

couched in the naked words of the regulation, arbi-

trariness, error of law or malice may lurk. Searching

the registrant’s claim with a fine glass for some speck

of basis-in-fact will not reveal the unstated reasons

for the denial of that claim.

27

Ehlert’s claim, on its face, alleges facts which

clearly indicate that he is conscientiously opposed to

participation in war in any form, and that such views

matured after the order to report for induction was

mailed. A 51, 54-57. This was the finding of the trial

judge who had the opportunity of hearing Ehlert ex-

amined and cross-examined under oath, and to satisfy

himself by questions from the bench. Even without

the benefit of Ehlert’s demeanor on the stand to aid

them, eleven of the thirteen judges of the Court be-

low also found that Ehlert presented a prima facie

case and that his views matured after the order to

report for induction was mailed. (P. O. B. 26.) Thus,

there is no substance to the respondent’s argument

that the local board’s refusal to re-open was war-

ranted.

The Board could not have found that Ehlert did

not make a prima facie case. The Government seeks

to support such a finding by stressing the phrases

“today” and at this time” in the text of Ehlert’s

claim. (R.O.B. 37.) To apply the principles of baroque

pleading to the claim of a conscientious objector,

thereby finding a negative pregnant with the implica-

tion that the claimant thus enthusiastically approves

of wars past and future is, we think, grotesque.

Nor can Ehlert’s reply to the question, ¶ Under

what circumstances, if any, do you believe in the use

of force?” provide a basis in fact for denying his

claim. He replied, ‘‘ Under any circumstances in which

the use of force would not make more probable the

destruction of the human race.” A. 55. This Court

may notice that since August 6, 1945, any war any-

where makes more probable the destruction of the

human race. It is opposition to war which is of the

essence of a conscientious objection claim, not opposi-

tion to the use of force in any form—the law does

not require petitioner to abhor the findings of Sir

Isaac Newton.

The Government also seeks to show petitioner’s

objection to a nuelear orgasm which would be totally

destructive of human life and values” rests solely

upon considerations of policy R.O.B. 37. But Ehlert’s

statement that I consider that my duty not to work

for the destruction of the human race is superior to

any duties which may arise from any human rela-

tion.” A. 54, is not contradicted anywhere in the

record. The objection is clearly based on moral and

ethical grounds, upon a duty superior to that arising

from any human relation. United States v. Seeger,

380 US. 163 (1965); Welsh v. United States, 398

U.S. 339 (1970). A conscientious objector is not re-

quired, in addition, to believe that the total destruc-

tion of the human race is somehow politic.

Further, Ehlert’s claim that his views matured

after the order to report for induction was mailed is

uncontradicted. Of course, as Ehlert frankly stated

(A 51) his views had antecedents. A lightning trans-

formation from fascist warmonger to total pacifist is

not required. Scott v. Volatile, supra, Slip Opinion 6.

29

OONOLUSIONS

For the foregoing reasons, the judgment of convie-

tion should be REVERSED.

Dated, December 14, 1970.

Respectfully submitted,

Paul. N. HALvoxIX,

CHar.Les C. Mansox,

American Civil Liberties Union

of Northern Californie,

Marvin M. KaRrATKIN,

ACLU Foundation,

Net Horton,

SraxLExr J. FRIEDMAN,

Mortimer H. HERZSTEIN,

HERZ STEIN, Marer, FrmepMAn & Lippert,

By SraxLExT J. FRIEDMAN,

Attorneys for Petitioner.*

*Attorneys for petitioner gratefully acknowledge the assistance

of Arthur Wells, Jr., Esq., who ably represented a nt before

200 Court of Appeals, Robert Regli, Esd., and David Reid Gilson,