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May 19, 1959

Richard Secor CORLISS, Defendant. UNITED STATES of America v. Walter HEROLD, Defendant. UNITED STATES of America v. Fred August HEISE, Defendant. UNITED STATES of America v. James Wilson PARMITER, Defendant

The opinion of the court was delivered by: MURPHY

Each of the above defendants, members of Jehovah's Witnesses claiming to be conscientious objectors, was indicted for refusing to be inducted into the United States Army. *fn1" Each waived a jury trial and was separately tried to the court.

Upon consideration of all the evidence we find Richard Secor Corliss, Walter Herold and Fred August Heise guilty as charged, and James Wilson Parmiter not guilty. As to the defendants found guilty we will discuss the facts in each case which support the Board's determination and where applicable the claims advanced of denial of due process. In the Parmiter case we will discuss the facts which show that there existed no basis in fact to support the determination of the Board.

 Since all of these cases present some-what similar problems we deem it appropriate to summarize certain principles applicable to each.

 Exemption from military service is a privilege granted by Congress, not a right. Campbell v. United States, 4 Cir., 1955, 221 F.2d 454, 460; United States v. Hein, D.C.N.D.Ill.1953, 112 F.Supp. 71, 73. It is incumbent upon the registrant to establish to the satisfaction of the local board his eligibility for deferment or exemption. 32 CFR 1622.1(c), 1622.10.

 If the claim for exemption is based on conscientious objection it must be supported by evidence of subjective convictions. It cannot be that the mere assertion by the registrant that he has the requisite subjective convictions establishes his right to the privilege. United States v. Wider, D.C.E.D.N.Y.1954, 119 F.Supp. 676, 683; Campbell v. United States, supra, 221 F.2d at page 457.

 The function of the District Court in cases such as these is to examine the entire file or record relating to the registrant's claim for conscientious objector classification to determine if there is any basis in fact to support the Board's determination. 'When the record discloses any evidence of whatever nature which is incompatible with the claim of exemption we may not inquire further as to the correctness of the board's order.' United States v. Simmons, 7 Cir., 1954, 213 F.2d 901, 904, reversed on other grounds Simmons v. United States, 348 U.S. 397, 75 S. Ct. 397, 99 L. Ed. 453. Courts cannot substitute their judgment on the weight of the evidence for that of the Board. Nor need they look for substantial evidence to support such determination.

 In such cases the ultimate inquiry is directed to the sincerity of the registrant's objecting on religious grounds, to participation in war in any form. Evidence providing the basis in fact to support the Board's rejection of the claimed exemption must show or allow an inference of insincerity or bad faith on the part of the registrant. The inquiry is purely a subjective one, but any fact casting doubt on or affirming the veracity of the registrant is relevant. The court must examine the record for evidence before the Board of objective facts bearing on the question of sincerity, and also the Board's findings relative to the demeanor and appearance of the registrant as each may have influenced their determination. Witmer v. United States, 348 U.S. 375, 75 S. Ct. 392, 99 L. Ed. 428.

 It is well to state at the outset that mere membership in a certain sect cannot by itself be sufficient to establish the ultimate fact in question. Though relevant, it must be borne in mind that it is not registrant's sincerity of belief in a particular creed, or adherence to a given sect that is under scrutiny. Rather, it is his personal objection to participation in war based upon his religious training and belief. His personal views on the propriety of the use of force and non-combatant service are crucial. Membership in a particular faith does not preclude personal freedom of views on these topics. White v. United States, 9 Cir., 1954, 215 F.2d 782, 784, 785, certiorari denied 348 U.S. 970, 75 S. Ct. 528, 99 L. Ed. 755. The most cogent evidence that may be available to the Board relevant to a registrant's conscientious objection to participation in war in any form may be his demeanor and appearance and his credibility based upon his oral and written statements.

 In Witmer v. United States, supra, the Supreme Court, speaking of the Dickinson case, Dickinson v. United States, 346 U.S. 389, 74 S. Ct. 152, 98 L. Ed. 132, reasoned that since the claim of the registrant there, that he was entitled to classification as a minister, was established prima facie by objective facts, the Board's inquiry should not have been directed to his sincerity or motive in becoming a minister, but merely into the objective fact of whether or no he was a minister of religion within the meaning of the Act. The Board could not deny his claimed classification on mere disbelief of objectively demonstrable facts. In the cases at bar, as in the Witmer case, involving claims for classification as conscientious objectors, the search is for the truth of an asserted subjective prerequisite. Any fact affirming or casting doubt on the registrant's veracity is considered affirmative evidence.

 Richard Secor Corliss

 Defendant was born on February 2, 1934. He filed his Classification Questionnaire on April 2, 1952, and in it claimed to be a conscientious objector to military service and requested Form No. 150 for that purpose. On May 27, 1952, the local board classified him 1-A. Subsequently, on November 30, 1953, he was mailed Form No. 150 which was returned to the Board on December 15, 1953. On January 5, 1954, the Board again classified him 1-A after considering the information contained in his Form No. 150, and mailed him notice thereof the following day. Defendant was notified to appear for a hearing before the Board on February 2, 1954, pursuant to his written request therefor on January 14, 1954. At the conclusion of the hearing defendant requested that his file be forwarded for appeal and thereafter on February 15, 1954, the Board complied with his request and so notified him.

 The Appeal Board on July 31, 1956, classified defendant 1-A following the recommendation of the Department of Justice that defendant's claim be denied. The Department's recommendation had been preceded by an investigation conducted by the Federal Bureau of Investigation and a personal appearance of defendant before a hearing officer of the Department of Justice.

 Upon defendant's refusal to be inducted this prosecution followed.

 Defendant's first contention is that he was denied due process because the local board failed to mail him notice of the Board's action upon his personal appearance on February 2, 1954. 32 CFR 1624.2(d) provides: 'After the registrant has appeared before the * * * local board * * * the local board, as soon as practicable after it again classifies the registrant, or determines not to reopen the registrant's classification, shall mail notice thereof on Notice of Classification (SSS Form No. 110) to the registrant * * *.'

 The local board obviously did not reclassify defendant after the February 2, 1954, hearing. Under the regulations it was not required to reclassify; it could make the alternate determination not to reopen. 32 CFR 1624.2(c). The board entered upon Form 100 a notation of defendant's appearance on that date, and recorded a unanimous vote though it does not appear upon what question the vote was taken. Apparently no new information relative to his claim of conscientious objector was submitted to the Board by defendant at that hearing and the conclusion seems inescapable that the Board voted not to reopen, at the same time informing defendant of that fact. This seems to follow because implicit in defendant's request that the Board forward his file for appeal is his consciousness of the Board's rejection of his claim of exemption.

 The prejudice defendant claims lies in the fact that he was deprived of the opportunity to file a statement with his appeal as provided for in 32 CFR 1626.12. We find this argument to be without merit. Defendant may be held to have waived this opportunity when he requested that the local board forward his file for appeal at the conclusion of the hearing on February 2, 1954, and the Board granted his request about two weeks later. Furthermore, defendant was not prejudiced thereby since he could have filed such statement after notification by the Board that his file had been forwarded in accordance with his wishes. See Gonzales v. United States, 348 U.S. 407, 415, note 6, 75 S. Ct. 409, 99 L. Ed. 467.

 On the issue whether there was any basis in fact to support the Board's determination it appears that at the time of defendant's hearing on February 2, 1954, his parents were both members of Jehovah's Witnesses; that defendant was a high school graduate and employed full time as a machine operator in a textile firm at a salary of $ 48 per week; that he was living at home with his parents and four brothers and two sisters, all younger than defendant (ages 3 to 16). It also appeared that an older brother had recently died at the age of 23, apparently while in the United States Coast Guard, leaving a widow and three children. In a supplemental statement filed by defendant on that date he listed the income and expenses for the family group to which he contributed $ 30 per week. These expenses amounted to $ 598 a month, and the income from all sources amounted to about $ 550 a month.

 Defendant's neighbors and employer were aware of his affiliation with Jehovah's Witnesses and references attested to his sincerity and character. There were no unfavorable reports impinging on his reputation or character.

 In this case the recommendation notes that defendant stated before the hearing officer that he 'asked for his conscientious-objector classification because he should devote more time to Jehovah's work of preaching the Gospel.' That is 'not an objection which the Act recognizes.' Tomlinson v. United States, 9 Cir., 1954, 216 F.2d 12, 18, certiorari denied 348 U.S. 970, 75 S. Ct. 528, 99 L. Ed. 755.

 The recommendation continues, citing defendant's responses to questions of the hearing officer which, at the minimum, create serious doubt as to defendant's sincerity of opposition to non-combatant military service, and justify the conclusion that he failed to establish his ...

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