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March 12, 1952


The opinion of the court was delivered by: KAUFMAN

Defendant was indicted under 50 U.S.C.A.Appendix, § 462 for failing to take one step forward, thereby refusing to be inducted into the United States Army.

The case was tried without a jury and upon the trial the following facts developed. Defendant, who was born on May 1, 1929, is a member of the Jehovah's Witnesses sect. Early in May, 1949 he received a Selective Service questionnaire which he answered on May 13, 1949. In the questionnaire he claimed to have been a Jehovah's Witness since 1942 and requested exemption from service on grounds that he was a minister and conscientious objector. He subsequently filled out a form S.S. 150 for conscientious objectors and with it returned several religious tracts to his local draft board. The documents were included, he testified, to furnish the local board with official religious information about the nature and work of Jehovah's Witnesses.

 On June 6, 1949 defendant was given a hearing by his local board, and a day or two thereafter he was notified that he had been classified 1-A-O. Such a classification qualifies a registrant for service but limits his service to noncombatant duty.

 On June 15, 1949 defendant wrote to his local board requesting a hearing on his classification since he felt his religious duties warranted a total exemption which a 1-A-O classification does not give. The hearing was denied him, and in his file is the local board's notation, apparently made by a clerk of the board: 'Called and explained to registrant right of appeal.' That call was made on June 21, 1949. Following this, defendant's file was forwarded to a Selective Service Appeal Board. Defendant was notified of the transmittal of his file, and on July 21, 1949, the Appeal Board concluded that defendant was not entitled to the IV D *fn1" or IV E *fn2" classification he requested. The file was then sent on to a Department of Justice hearing officer. He recommended that defendant be given a IV E classification as did the Department of Justice when referral was made to it by its hearing officer. Defendant did not appear before the hearing officer at the time the hearing was held although he was notified of the time and place of the hearing. Defendant testified that he tried to appear at the hearing but could not because he was unable to find the office, which was apparently in a large Brooklyn office building.

 The hearing officer forwarded his recommendation of a IV E classification to the Appeal Board, but the Board did not alter its decision. By a vote of 4 to 0 it decided to retain defendant in a 1-A-O classification.

 Several months later, while defendant was in the 1-A-O status, the local board sent his file to Selective Service Headquarters in New York City. The New York Director of Selective Service requested that the Appeal Board reconsider the case. On March 3, 1950 the Appeal Board reconsidered defendant's case, and by a vote of 5 to 0 it continued him in the 1-A-O classification. The local board advised Selective Service Headquarters in New York City that its, the local board's, original decision would not be changed.

 On March 21, 1950 the New York City Director appealed to the National Board of Appeals. By a vote of 2 to 0 the National Board classified defendant 1-A-O on June 23, 1950. The classification was continued until November, 1950. On November 28, 1950 defendant was found acceptable for service, and he was ordered to report for induction on February 14, 1951. On that day defendant refused to take the oath of induction which precipitated the indictment under which defendant was tried.

 Defendant has raised a point which I find is of critical importance to the ultimate legal conclusion drawn in this case. He urges that at no time after he was classified by his local draft board was he given the opportunity to be heard in any argument or statement he might wish to make to the board in connection with his first classification, although he did request an opportunity to appear before the board.

 The Government stresses the uncontested fact that defendant had a hearing at the local board prior to the first classification. There was introduced in evidence a memorandum of this appearance, and it was initialled by three members of the board. Defendant testified that in fact he was interviewed by only one board member at the pre-classification hearing, and the memorandum seems to bear out defendant's contention that it was a very curt hearing at that.

 I am persuaded the defendant did see but one member of the board at that hearing, and the three initials on the memorandum in evidence do not establish ipso facto the number of board members actually present at the pre-classification hearing. It takes no torture of the imagination to conjecture that three sets of initials were merely pro-forma and are not evidence of which board members were or were not at the hearing.

 32 CFR § 1624.2(b) requires a summary of the information furnished by registrant to the board after the registrant's appearance. The so-called summary of the information in this case is in fact no summary at all, for it is merely an observation by the board members that the registrant is not on an approved and certified list of ministers. And, of course, this was a 'summary' of a pre-classification appearance.

 But even if I assume that three members of the board were present, that the hearing was of sufficient duration, and that a genuine summary was made, I must conclude that the hearing is legally beside the point.

 I am of the opinion that registrants under the Selective Service Act have an absolute right to a hearing following notice of their classification by the board.

 32 CFR § 1624.1 provides: '(a) Every registrant, after his classification is determined by the local board (except a classification which is itself determined upon an appearance before the local board under the provisions of this part), shall have an opportunity to appear in person before the member or members of the local board designated for the purpose if he files a written request therefor ...

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