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UNITED STATES v. ORR

May 11, 1972

UNITED STATES of America,
v.
Lemuel Leon ORR, Jr., Defendant


Edward Weinfeld, District Judge.


The opinion of the court was delivered by: WEINFELD

EDWARD WEINFELD, District Judge.

The defendant in this nonjury trial was charged with refusal to report for induction into the Armed Forces. *fn1" The essential fact that he intentionally and willfully failed to report for induction when ordered to do so is not in dispute. Defendant urges he is entitled to acquittal upon the ground that the Local Board erred in denying his application for conscientious objector status. *fn2"

 The defendant registered with Local Board 12 in New York City in September 1969; he submitted his classification questionnaire (SSS Form 100) and asserted a claim for conscientious objector status. Special Form for Conscientious Objectors (SSS Form 150) was mailed to the defendant by his Board on July 2, 1970, but he failed to return it. Thereafter, on October 27, 1970, the Board classified him I-A, noting on his file, "doubt sincere C.O." He was duly notified of his I-A classification and of his right to a personal appearance and appeal. On November 18, 1970, he appeared before the Board and again asserted a claim for conscientious objector status. The Board's summary of his appearance follows:

 
"Registrant appeared and was sworn. States he failed to return Form 150 because it was lost or destroyed in a fire. States he is a member of the Muslim religion and has been so for the past 8 or 9 months. He participates regularly in their activities and works in one of their health food stores. Produced membership card.
 
"He claims conscientious objector exemption by reason of his religious beliefs and membership in the Muslim religion that he should not take part in wars which take human lives. However, he states he is not opposed to participation in all wars; that he would participate in a war in self defense which he thought was a threat to him, his family, his mosque, his loved ones or intimate community. Board believes he is sincere in his beliefs. Registrant informed to complete & return form 150 and consideration to be given upon receipt of same."

 The defendant returned the Form 150, which contained the following statement by him, describing the nature of his belief that was the basis of his claim:

 
"We Believe that we who declared ourselves to be rightous [sic] Muslims, should not participate in wars which take the lives of humans. We do not believe this nation should force us to take part in such wars, for we have nothing to gain from it, unless America agrees to give us the necessary territory wherein we may have something to fight for."

 On December 16, 1970, the Local Board noted:

 
"Unable to determine sincerity without personal interview. Call in for interview."

 Thereafter, the defendant, at the Board's request, appeared for a second personal interview on February 16, 1971, at which time his claim was considered. The following summary was made by the Board of what transpired:

 
"Registrant appeared and affirmed to tell the truth. He is a member of Muslim religion. He cannot participate in armed services as his present work is more meaningful. Present wars and conflicts have no value to him.
 
"However, he could participate in a war that has value or meaningful benefit to him. Not eligible for C.O. classification. Reopening not warranted." *fn3"

 The Local Board rejected his claim by a vote of 4-0; on March 25, 1971, the Appeal Board unanimously classified defendant I-A by a vote of 5-0. He was ordered to report for induction on May 11, 1971, having been previously found physically acceptable for military ...


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