The opinion of the court was delivered by: KNIGHT
Trial was had on July 30, 1953 to the Court without a jury- trial by jury having been waived. The issue is whether or not under the circumstances of the case the Selective Service System has failed to take certain procedural steps which defendant claims are necessary to his proper processing.
The pertinent facts are contained in the file of Local Board No. 89 of the Selective Service System, stipulated in evidence, relating to defendant. From the file it appears that defendant was born September 9, 1932; that defendant received the usual questionnaire (S.S.S. 100) from his Local Board mailed October 5, 1951, which was returned to the Board and received by it October 16, 1951, with his signed request at Series XIV thereon for Special Form for Conscientious Objector (S.S.S. Form 150); that supporting certificates and affidavits were received by the Local Board from defendant on Dec. 6, 1951; that defendant received the Special Form and to questions 2, 3, 4, 5, 6, 7 of Series II, and questions 2(a), 2(b), 2(e), 3 of Series IV, which are not answered in the places provided on the Form, reference is made to six sheets of paper attached thereto; that the Special Form was stamped by the Local Board 'Dec. 7, 1951' and 'Dec. 14, 1951'; that defendant received from the Local Board his classification notice of I-A on December 24, 1951, and wrote a letter to Local Board No. 89 on that date requesting permission for a personal appearance before the Local Board to support his claim for a '4-D' classification; that a hearing date was set for January 4, 1952 at 3:45 P.M. at which time hearing was had; that the incomplete minutes of the hearing consisting of one page, typewritten, contain the following:
'Q. Do you want to appeal your I-A Classification for a I-AO? A. No, we do not want a I-AO classification, we wish to have a 4-E Classification as ministers.
'Q. Are you an ordained minister? A. I am- I was ordained by water immersion.
'Q. What was the date? A. April, 1951.
'Q. Are you a conscientious objector? A. I object only to fighting, in any form. We are opposed to battle.
'Q. Do you go to a regular school? A. Yes.
'Q. Where is this school located? A. 1632 South Park Avenue.
'Q. (Without previous mention in the minutes) What is this service work that you mention? A. That is house to house preaching of the gospel.
'Q. (Without previous mention in the minutes) You are talking about doing something for mankind, don't you think you could do a lot of good in the army? There is a lot of good that could be done there. A. A lot of good could be accomplished, but I would not be free to do as I wished.
'Q. You don't qualify as an ordained minister. Whatever decision we may come to may be appealed by you if you choose.
Defendant received notice of reclassification as I-AO on Jan. 8, 1952 and wrote the Local Board on January 17, 1952, acknowledging its receipt and stating that he was seeking a classification of '4-D, as a duly ordained minister of Jehovah's Witnesses,' and asking for submission of the 'letter of Appeal to the proper appeal authorities' to which letter was attached a letter addressed to the Selective Service System Appeal Board; that defendant's cover sheet and file were transmitted by the Local Board to the Appeal Board, Western District of N.Y. on February 12, 1952; that defendant's cover sheet and file were returned to the United States Attorney at Buffalo, New York, on March 24, 1952, after the Appeal Board had reviewed the case and determined that defendant should not be classified I-O or lower and in its accompanying letter stated that the file is transmitted to the United States Attorney for inquiry and hearing as prescribed by the Universal Military Training and Service Act and Selective Service Regulation, Section 1626.25; that the file was thereupon transmitted to the Hearing Officer; that the United States Attorney on September 9, 1952, requested the Hearing Officer to return the file to him inasmuch as no hearing had been had by the Hearing Officer in order that the file might be transmitted to the Appeal Board for its proper consideration; that the Hearing Officer wrote the United States Attorney on September 10, 1952, with respect to the defendant, as follows:
'The indicated actions to be taken in the matter of Gordon Joseph Cotie, conscientious objector, the file in which is returned herewith, suggests that all appeals by conscientious objectors who are Jehovah Witnesses, which involve as all of them presently do, the claim for classification as ...