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August 17, 1956

UNITED STATES of America, Plaintiff,
Wilbert Charles SCHULTZ, Jr., Defendant

The opinion of the court was delivered by: BRENNAN

The existence of procedural due process in the action of the draft board in classifying the registrant defendant is the disputed point involved in this trial.

Wilbert Charles Schultz, Jr., was brought to trial before the Court on an indictment which charges a violation of the Universal Military Training and Service Act of 1948, as amended, in that he failed and refused to report for civilian work at Marcy State Hospital at Marcy, N.Y. on June 3, 1954 -- all in violation of Title 50 U.S.C.A.Appendix, § 462.

 The draft board file of this defendant was received in evidence and it was stipulated that the defendant did not report for civilian work as ordered by the local draft board and referred to in the indictment. The above constituted the Government's case and reference will be made to the pertinent parts of the record which are involved in the matter of the determination of the defendant's guilt.

 The defendant, who was born Dec. 3, 1932, registered with Local Board No. 71 at Belmont, N.Y. sometime prior to Feb. 4, 1952. On that day, he filed his questionnaire furnished by the Board in which he asserted a conscientious objection to war and expressed the opinion that he should be classified IV-D which is a classification reserved for ministers of religion or divinity students. On March 15 he was classified I-A. The prescribed notice of such classification was mailed to him and on the same date Form 150, which is a special form for conscientious objectors, was mailed to the defendant who thereafter returned same to the local board. On Feb. 29, 1952, defendant's claim of conscientious objection was recognized by the board and he was classified I-O which in effect exempted him from military service but under certain circumstances would require the performance of civilian work contributing to the maintenance of the national health, safety, or interest. CFR 1622.14, 1660.20.

 The defendant appealed from such classification and on July 31, 1952 was classified I-O by the Appeal Board and notice of such classification was properly given to the defendant. After a physical examination, he was found to be acceptable for the service indicated in his classification.

 About Nov. 24, 1952, defendant wrote the local board requesting that they 'consider my appeal of classification' claiming that he was entitled to the IV-D classification rather than that of I-O. In the same letter, he stated that the board should consider his appeal because he did not have a personal appearance before the board. On Nov. 25 the board, through its clerk, advised the defendant by letter that since the classification of I-O was made by the Appeal Board, there was no further appeal provided. The clerk also advised that the defendant had the right to appear before the board at any time and an appointment for Dec. 5 was suggested.

 Forms were sent to defendant on which he was requested to designate work which he would perform in lieu of induction. On Dec. 3, 1952, the defendant called at the office of the board and advised that he would not do any type of work authorized under the regulations. His letter of Dec. 1 indicated the same attitude.

 On Dec. 5, 1952, he appeared before the board who made no change in his classification. Then followed a series of communications which may be summarized by stating that the defendant refused both orally and in writing to designate or perform any service or work as contemplated under the regulations. On July 24, 1953, the defendant was requested to appear before the board to discuss the matter of his employment under the I-O classification. He failed to appear. He thereafter failed to report for civilian work at Marcy State Hospital, Marcy, N.Y., on June 3, 1954 as ordered by the board.

 The defendant does not actually controvert the facts appearing in the file. He was the sole witness in his own behalf. His testimony, insofar as it is pertinent, related only to the meeting of Dec. 5, 1952. It is evident that the defendant's claim that he should receive the classification of IV-D -- that of a minister -- was the subject of discussion. The defendant testifies that the chairman stated in effect that the Appeal Board having acted, the local board could not disturb that classification. He further testifies that his qualifications as a minister were discussed as was his ministerial training or education. He testifies that the Chairman stated in effect that he would not be qualified as a minister because he had not graduated from a theological seminary. On cross-examination, he testified that he pointed out to the board the contents of his file relating to his religious education and exercises and secular work as the basis of his claim.

 The clerk of the board was called by the Government in rebuttal who testified at the time of the defendant's appearance on Dec. 5, 1952 the regulations as to ministerial classification were read to him by the board and he was told he did not qualify for a IV-D classification.

 With commendable frankness, the counsel for the defendant has withdrawn two of the contentions made at the time of the trial and expressed in a motion for a judgment of acquittal at the close of all of the evidence. There remain only two contentions advanced by the defendant which require consideration. (1) Defendant contends that he was denied procedural due process in that at his personal appearance on Dec. 5, 1952 and on May 3, 1954 when additional information was considered by the board, the board was under the erroneous impression that the action of the appeal board in classifying the defendant on July 1, 1952 as I-O prevented further or other classification and that the board proceeded on the erroneous assumption that a certificate of graduation from a theological seminary was a requirement before the minister classification of IV-D could be made. (2) That the defendant was denied procedural due process on May 3, 1954 when the local board, after considering defendant's status on its own motion, failed to notify the defendant of its action in not reopening the subject of defendant's classification under the provisions of Sec. 1625.4 CFR.

 The issues here are therefore rather narrow. There is no claim that the action of the board was arbitrary in that it is not supported in the record on a basis in fact. In substance, there is no dispute as to the guilt of this defendant if he was accorded procedural due process by the board in the course of the performance of its functions.

 Like the term 'due process' itself, procedural due process is not capable of an all-inclusive definition. In considering same, the fact that the function of the board is administrative must be borne in mind. The process of classification is in no respect a criminal proceeding although absolute fairness is required since the result may become as here the basis of a criminal action. Procedural defects, not resulting in prejudice or unfairness to a registrant are not of such consequence as to void the order of the board. It would seem to follow then that the denial of a right, the foreclosing of the opportunity to the defendant to assert his claims before a designated authority or the existence of prejudice or unfairness are the marks which indicate the lack of procedural due process. Eagles v. U.S. ex. rel Samuels, 329 U.S. 304, at page 314, 67 S. Ct. 313, 91 L. Ed. 308; United States v. Manns, 7 Cir., 232 F.2d 709; Uffelman v. U.S., 9 Cir., 230 F.2d 297; Rowton v. U.S., 6 Cir., 229 F.2d 421. This principle is recognized in this circuit. United States v. Fry, 203 F.2d 638.

 The defendant's contention that the failure of the board to notify the defendant of the action taken on May 3, 1954 was prejudicial may be quickly disposed of. It is plain that the board recognized the provision of Sec. 1625.1 CFR that no classification of a registrant is permanent. It is further evident that the board recognized its obligation under subdivision (c) of the above regulation to keep informed as to the status of this registered defendant. In carrying out its duty, it sought to bring its information as to the status of this defendant up to date by the inquiry addressed to him under date of April 14, 1954. The defendant answered the inquiry and on May 3, 1954 such additional information was reviewed by the board. It was determined that such information was not sufficient to warrant the reopening of the question of the defendant's classification. I find no requirement under the circumstances that the defendant be notified of the action of the board. The May 3, 1954 action of ...

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