The opinion of the court was delivered by: LEVET
On November 13, 1962, the defendant was indicted for unlawfully and knowingly failing 'to submit to induction at the time and place fixed in an Order to Report for Induction mailed to him by his Selective Service System Local Board.' 50 U.S.C.Appendix § 462; 32 C.F.R. § 1632.14.
Defendant pleaded 'not guilty' on November 20, 1962. A trial was conducted on March 26, 1963, at which time defendant waived a trial by jury. At the close of the trial decision was reserved.
It is undisputed that defendant's Selective Service File (Exs. 1-60) accurately discloses the following:
Defendant registered with Local Board 66 upon his eighteenth birthday on September 4, 1953. On October 21, 1953 he filed his Classification Questionnaire (S.S.S. Form 100) (Ex. 3). It reflected that he was unmarried and was a chemical engineering student at Cooper Union School of Engineering. He did not execute the claim for conscientious objector exemption which appears on page 7 of the Questionnaire. He stated that he thought he was entitled to deferment as a student.
The Minutes of Board Action (p. 8 of Questionnaire) reflect that he was initially classified 1-A on October 27, 1953 and that he was reclassified 2-S as a student on July 26, 1955. He remained in that classification until August 26, 1958, when he was reclassified 1-A.
On July 15, 1957 defendant wrote to the Board that he was conscientiously opposed to participation in war. He was mailed a Special Form for Conscientious Objectors (S.S.S. Form 150) (Ex. 11) which he filed with supporting documents on July 29, 1957.
On the Special Form for Conscientious Objectors the defendant executed the Series I claim for exemption for both combatant and noncombatant service which reads:
'(B) I am, by reason of my religious training and belief, conscientiously opposed to participation in war in any form and I am further conscientiously opposed to participation in non-combatant training and service in the Armed Forces. I, therefore, claim exemption from both combatant and non-combatant training and service in the Armed Forces.'
The defendant placed quotation marks around the word 'religious' and struck out the words 'training and.'
In response to the Series II question, '1. Do you believe in a Supreme Being?' the defendant checked neither the 'Yes' nor the 'No' box but added a third box and the notation: 'Please see attached sheet.' The Board was also referred to the attached sheet for the answer to the Series II question:
'2. Describe the nature of your belief which is the basis of your claim made in Series I above, and state whether or not your belief in a Supreme Being involves duties which to you are superior to those arising from any human relation.'
In the five-page statement attached to the Special Form the defendant stated in answer to the question as to his belief in a Supreme Being:
'Of course, the existence of God cannot be proven or disproven, and the essence of his nature cannot be determined. I prefer to admit this and leave the question open rather than answer 'yes' or 'no'. * * *'
His answer to Series II, question 2, describing the views on which his objections to service are based, does not reflect that he believes in a Supreme Being imposing obligations on him superior to those arising from any human relation.
The defendant was continued in classification 2-S until August 26, 1958, when he was reclassified 1-A. On October 17, 1958, defendant was ordered to report for a pre-induction physical on October 29, 1958. On October 20, 1958, the Board received a request for a personal appearance, which was had on October 21, 1958. Following the personal appearance the Board voted to continue the 1-A classification.
The defendant prosecuted an appeal to the Appeal Board. The Appeal Board tentatively determined that he was not entitled to classification 1-O and forwarded the file to the Department of Justice for an advisory opinion.
The Federal Bureau of Investigation conducted a background investigation. Its reports were summarized in a resume (Ex. 30B) and the files assigned to a Hearing Officer. The defendant was provided with a copy of the resume prior to the hearing which was held on September 10, 1959. Two witnesses appeared on defendant's behalf. The hearing officer reported to the Department of Justice that he found the defendant to be sincere in his objection to war and recommended that exemption be granted. The Department of Justice, however, concluded that the defendant's objections were not based upon religious training and belief as required and defined by § 6(j) of the Universal Military Training and Service Act, and recommended to the Appeal Board that the exemption be denied.
The Appeal Board furnished the defendant with a copy of the Department of Justice recommendation and received a reply from him. The Appeal Board classified the defendant 1-A by unanimous vote on May 24, 1960. Upon the defendant's request, the National Director of Selective Service appealed on his behalf to the Presidential Appeal Board. The ...