# Reply Brief — Ehlert v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 1971
- **Citation:** 402 U.S. 99

## Text

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,

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0271%3A07. Public record. Not legal advice.