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UNITED STATES v. GABRIS

December 4, 1968

UNITED STATES of America
v.
Richard T. GABRIS, Defendant



The opinion of the court was delivered by: JUDD

JUDD, District Judge.

 In this prosecution for refusal to submit to induction under the Selective Service Act (50 U.S.C. App. § 462[a]), the Court is presented with the question whether there was a "basis in fact" (Estep v. United States, 327 U.S. 114, 66 S. Ct. 423, 90 L. Ed. 567 [1945]) for defendant's being denied his requested 1-O classification as a conscientious objector (50 U.S.C. App. § 456[j]; 32 C.F.R. 1622.14). The Court has conducted a pre-trial hearing on the validity of the classification, in accordance with Cox v. United States, 332 U.S. 442, 68 S. Ct. 115, 92 L. Ed. 59 (1947).

 The defendant is a Jehovah's Witness, who claimed to be a conscientious objector and a minister, and was nevertheless classified 1-A. Defendant has exhausted his administrative remedies, the Local Board's determination having been considered by the Department of Justice and affirmed by the Appeal Board.

 Facts

 In defendant's classification questionnaire, he signed the statement (Series VIII) that he was conscientiously opposed to participation in war in any form, by reason of religious training and belief. His "Special Form for Conscientious Objector" (Form 150) stated that his mother was studying with Jehovah's Witnesses when he was born, and that his pacifist beliefs were based on the Bible and on training by Jehovah's Witnesses.

 Defendant was interviewed by a member of the Local Board, who wrote a memorandum stating in part:

 
"As to conscientious objector - believes shouldn't participate in warfare of any kind - thou shalt not kill - states there are times when to kill is permissible, but serving country is not one of those times. Will not do non-combatant work, since it can possibly aid in a war effort and to take non-combatant work in place and instead of service is a compromise and against his beliefs."

 There was no express finding by the member that registrant was insincere.

 Defendant was classified 1-A, filed an appeal, and appeared before a Hearing Officer of the Department of Justice with an attorney and four witnesses. A letter from the Department of Justice to the Appeal Board after the hearing stated with respect to the Hearing Officer's determination:

 
"The Hearing Officer commented that it was difficult to reach a conclusion with respect to registrant's sincerity but stated that it was his impression that registrant is using his membership in the Jehovah's Witnesses to avoid the draft. He recommended that registrant's claim be not sustained.
 
* * *
 
"From the objective facts alone it is difficult to assess registrant's sincerity as a conscientious objector. However, the Hearing Officer, who had an opportunity to interview him and observe his demeanor, concluded that he was not sincere."

 The Hearing Officer's report was not furnished to the registrant or to the Appeal Board.

 The resume of the F.B.I. inquiry, which was also submitted to the Appeal Board, showed that all the persons who were interviewed considered the defendant to be sincere in his beliefs. Among those supporting his claim was the Assistant Presiding Minister of ...


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