*1 BARNES, Before HAMLEY Judges. KOELSCH, Circuit Judge. BARNES, Circuit adjudged charged failing guilty in the district court with induction, and to himself for to submit being inducted, classified after being inducted I-A and ordered Class Mili- of the “Universal under the terms tary (50 Training Act.” and Service 462(a).) U.S.C.App. Jurisdiction upon rested U.S.C. § low 1291 and here U.S.C. rests §§ registered for appellant first When exemp- service, he claimed selective preparing or student as a minister tion ministry. He first asserted objector after claim as a conscientious *2 August 14, Board of I-A classifica- he his additional was notified were; having by later, request- years facts added the form tion. second Three (Form ed form a conscientious (1) appellant rejected That had four it, having 150), never returned but SSS opportunities agen- highway to work for personal he or failed to cies; (although the Board changed appellant that had his either) by advised the Board he could do going Hong Kong “hope” of back to I-A after notice of his reclassification. marry buy house; and to religious appel- that sect of He later a second conscien- parents lant’s was Buddhism. objector’s it form and returned again Appellant with certain information.1 He also elaborated somewhat upon say his belief he Board, desired “to was I-A was classified as gain knowledge Jehovah, more of to be- notified of it and failed to perfect, accepted come and be thus to in personal appearance. was He world.” physical then ordered to for a ex- government points brief out sev- so, amination, accepted and was eral matters that cast doubt on the in- military again request- He then service. appellant requests ferences us to draw ed an Form and SSS returned sincerity, to his and demonstrates an with certain information.2 part failure on absolute to exhaust his remedies, note of his We that factual administrative and a de- twelve disregard completely termination statements in the second Form filed them. February 23, 1962, nine were the same
as, very to, alleged similar nine facts trial testified that he in the first Form 150 filed with still had first Form SSS 150 which appellant op query religious “Therein stated that he was relative to their sect.” posed participation (cid:127) Brief, (Gov. p. in combatant and 4. Record references omitted.) non-combatant service. He stated that study his belief stemmed from a of 1959; beginning appellant again Bible with two friends in 2. “Therein stated that he that he looked to Jehovah’s Witnesses looked ligious guidance; for re- Jehovah’s Witnesses religious guidance; that he would use that belief stemmed his only way study force if without a to avoid at of the Bible with two beginning tack 1959; and then he would in strike back in that he would friends defense; only that he con demonstrated his force or strike for use defense way away; viction get on service re weekends and there were no that he jecting opportunities baptized 1960; to work at research and that was March public centers; rejected opportunities resource that he was he four had work planning minister; highway agencies. again to be a was that he He recited baptized teachings teachings in that his were that whoever was a friend of that enemy world controlled an God and that world devil, duty people king- that whoever loved the world was was to tell his enemy God, and that he therefore in the near He elaborated dom future. give any nation; would say service to his belief to the desire to people gain Jehovah, that of a time knowledge his duties were to tell the more to be- coming perfect, accepted new world to earth at which to be in come the new thus destroyed. world, hope changed all nations De had his scribing Hong marry going Kong the official creed of Jehovah’s and to back said, any help Witnesses buy again he ‘We wouldn’t described a house. He fighting nation organizational even when in front creed Jehovah’s Wit- furnishing general background neutrality. involving us.’ In as one He nesses City gave essentially background information listed he attendance at the same College Francisco, employ of San this as before but time indi- formation painter, religious parents ment as a farmer and dishwash sect of his cated parents Brief, pp. er. (Gov. He that his (sic).” stated liv were be Buddism 5-6. ing space opposite omitted.) but did in not fill references Record why scientiously opposed participation requested. Asked he re- he had quested forgot. form, said, “I a second war form’. 50 U.S.C. App. (j). Conformably I I I re- don’t know received—I know. selec- (1622.2) three forms.” He recalled receiv- tive service ceived advising May provided claiming him card have for those classification, objectors, he did status but said as conscientious “appeal” (conscien- not understand what meant un- classifications of I-A-0 *3 days objector til later he still did two and that available for non- put military only), how letter and not know to write a combatant service “appeal” (conscientious objector in a sentence. He and of word 1-0 that, prior 1961, admitted to when he for available civilian work contribu- out the ob- filled jector form, second conscientious tion to the maintenance of the na- health, safety interest). he had had one and one-half tional or A years English college (using of text- who claims such status books) in the San Francisco area. and is nevertheless classified (available service) military by for he did not testified that right board, the local has the to re- September appeal the 1961 classification personal appearance thought because he no of use in that the local board for reconsideration he did not receive the notification until (Sec. 1624.1) of classification days more than ten ly he official- after was right and the to to the selec- classified. He testified that when (Sec. tive service 1626.- reported physical for examination he had 1, seq.). registrant’s et If the claim anyone concerning no conversation with objection military of conscientious objections military his service. He prelimi- is not service sustained never to the went draft board or talked nary by appeal board, review the anyone ap- in selective service about file is referred to the United States pealing his classification. Attorney hear- (In question connection with the Department of Justice on appellant’s sincerity, as it relates (Sec. the merits of the claim 1626.- validity board’s classification 25). Thereafter, light and in decision, Judge Duniway’s opinion see obtained, the information registrant’s so States, Cir., in Greiff v. United decided again classification is July 21, 1965, particu- by reviewed board and larly para- the cases cited in the last is decision made. graph.) provide for The also then re- Selective Service Board possible reopening of a appellant’s case, viewed voted not classification the local board question of classification. its discretion the written re- questions Two these arise under facts: registrant. (Sec. quest of the 1625.- appellant is entitled as a matter )2. right reopened; to have his case objection A claim of conscientious appellant is entitled to the defense assert presents a deter- difficult factual “wrongful classification” at trial his subjective sincerity mination of the previous refusal be of the claim and of it arises whether ducted? religious training from and belief. portion We think of the anomaly in the entire situa- ably ap- the court pellant’s discusses below regardless tion exists of the because There it was said: issues. extent to the administrative which * * * exempts utilized, procedures draft law “[T]he there have been military compulsory stronger proof from service can be ‘who, person registrant’s objec- reli- reason of gious training belief, willingness subject is con- tions than his year peni- possible
himself to a
tentiary
five
Cir.
1963);
Vincelli,
evasion
sentence for draft
compulsory
(2d
than to submit to
rather
F.2d 681
exempt
1954);
after his claim of
service
Olvera v. United
rejected.
has
Whether
status
F.2d 880
objections
generated
are
States v.
F.2d 15
religious training
1955).
remains
belief
open question.
an
reg-
This
not a
case where the
Government,
Nevertheless,
presented
istrant had
facts
giving every
sup-
consideration to
while
the first time in
objections
port
prayer
reopening.
whose conscientious
those
of his
military
sincerely
February, 1962,
service are
His
conscientious
religious training
based on
and form
different
lief,
permit
claim
cannot
such a
substance from that filed and con-
escape
August,
hatch from the draft
sidered
board in
*4
objections
only
for citizens
whose
1961. The sole and
the
reason
spuriously
service are
asserted
before the
evidence
board
all
religiously
way
wilfully
dictated.
Gov-
one
is that defendant
neglected
ernment can do
than af-
no more
refused or
to avail himself
adequate
machinery
prosedural
safeguards
ford
of the elaborate
estab-
determination,
for a fair
within
lished
for deter-
ability,
mining
limitations of
of the
man’s
of his claims
integrity
exemption.
religious
of the claim to
and
emanation
their
from
training and belief. Defendant wil-
defendant,
Woo,
Gene
neglected
fully
refused or
did not utilize his administrative
request
the I-A classification or
a
per
request
remedies. He did not
personal appearance before the local
sonal
before
September,
(Clk’s
board in
1961.”
being
after
clas
11-13.)
Tr.
September 18,
I-A on
sified
judicial
judge
He is not entitled to
review
The district
then states:
of such classification. Kaline v.
hold that
“We
a local board does
States,
United
54
arbitrarily
unreasonably
not act
1956);
United
Williams v.
refusing
to reconsider a claim of
1953);