The opinion of the court was delivered by: WEINSTEIN
WEINSTEIN, District Judge.
This criminal prosecution for refusal to submit to induction (50 U.S.C.App. § 462(a)) presents the narrow but spiny question of whether there is revealed in the defendant's Selective Service record any "basis in fact" for denying his request for classification as a conscientious objector. 50 U.S.C.App. § 460(b)(3); Estep v. United States, 327 U.S. 114, 122-123, 66 S. Ct. 423, 90 L. Ed. 567 (1946). Since our answer is no, the indictment must be dismissed.
In July, 1965, shortly after his eighteenth birthday, defendant registered with his Local Board, leaving blank the claim on the registration form to be filled in by a conscientious objector. As a college student he was classified 2-S school "as of 12/1/66," on January 4, 1967 the Local Board reclassified defendant 1-A. By letter dated January 9 defendant requested a personal appearance, and on February 14 he forwarded to the Local Board SS Form No. 150, the "Special Form For Conscientious Objector."
A ten page handwritten explanation the defendant attached to his Form 150 stated that he is a pantheist, not a member of an organized religious group, and opposed to war by reason of his religious beliefs. He wrote in part:
"I consider myself a Pantheist. In my belief everything is God. All Physical substance and anything else that exists is God. * * * I believe that God is an impersonal force or being rather than a personal one and immanent rather than transcendent. God, in my belief, encompasses everything that exists and is therefore an existing being itself.
My belief in this "Supreme Being" involves only the duty to live according to my own conscience. It is this duty to my conscience that prevents me from participating in war, and makes me willing to bear the consequences of a jail sentence if necessary. I believe that war is a crime against humanity and that I myself would be playing a major part in this crime if I were to participate in any war. I therefore must and will refuse to serve in any military organization, in obedience to this belief.
I believe that the basis of my present pantheistic beliefs were in my questioning and later rejecting much of the theology which I was taught. My pantheistic views also stem in part from the scientific teaching I received during my Catholic education.
My moral belief in non participation in war comes in part from the opinions of certain teachers, [mentioning names] who taught me at St. Augustines [sic] high school * * * [and] Manhattan College. * * *
The violent force of one human being inflicting physical damage on another human being with the intent to injure, is in direct contradiction to this idea of love, and I consider it a gross evil. There are however some circumstances on the individual level in which I feel that the use of limited physical violence is necessary. There are occasions in which the force is used to aid rather than injure the victim, such as medical treatment upon a delirious patient, restraining a mental patient, or in subduing a criminal. In these cases I feel that the violence inflicted upon the victim is done so for his greater good. (cure of patients, rehabilitation of criminals) These acts and others like them, because their purpose is not to injure people but to help them, could be carried out in a spirit of love rather than hate.
The Local Board notified defendant that a personal interview would be granted. It instructed him, in a mimeographed letter, that he could present "new evidence pertinent to your case * * * in writing" and might be accompanied by a companion but not by "an attorney or legal counsel." The defendant appeared alone and without submitting any additional documents. He was seen by a single member of the Board. The written summary of this personal appearance in the Local Board's records reads, so far as relevant, as follows:
"A thorough reading of all sheets attached to 150 reveals innumerable inconsistencies -- hold until after preinduction physical for further study of entire file for local board determination."
Five days after defendant was found physically fit for military duty, the Local Board met and unanimously denied conscientious objector status. The Board's record of the meeting states only:
"Review of entire file by local board & in opinion of member conducting hearing there was a lack of sincerity & in the opinion of the local board the registrant did not maintain the necessary of [sic] burden of proof to warrant a 1O or 1AO classification."
Having received a letter from defendant notifying it that he appealed its ruling, the Board scheduled a meeting with "the Government Appeal Agent regarding" the appeal. The notes of this meeting -- apparently those of the Appeal Agent -- contain only a brief summary of the file and conclude: "Registrant respectfully asks that he be ...