*2 FRIENDLY, Before SMITH and FEINBERG, Judges. Circuit FRIENDLY, Judge: Circuit McGee, appeals Vincent Francis Jr. judgment a conviction violat ing U.S.C.App. 462(a), following a Judge Murphy jury trial before District Court for the Southern Dis trict of New York. was convicted on all four counts of the indictment and imprisonment sentenced for two years count, on each the terms to run concurrently. charged The indictment refusing him with submit induction (Count 1), physical ex (Count 2), possess amination a valid (Count notice of classification to submit information that requested (Count 4),. military-industrial complex which seems I. dictating policy.” to be our international who Catholic McGee is Roman copy McGee’s local board received Theolog- currently student at Union letter, apparently reopen- considered City. Seminary He in New York ical against his classification and decided in Man- registered Local Board 15 it, and, change event, August and informed hattan *3 II-S classification and deferment. Fol- “a stu- he was a month later board lowing graduation from the Uni- ministry at the preparing dent 1967, versity in of Rochester June his College Joseph’s Sem- of St. Cathedral board sent him a Current Information * ** inary under the direction it un- Questionnaire. McGee returned took a He Church.” Catholic Roman covering an- answered, letter and in a 1963, College in from of absence leave correspondence” that “further nounced during period board classified which “simply be board would from the draft 1964, passed August he him In I-A. unopened,” with his consistent returned physical had that his board preinduction approval.” “cooperation belief later, after en- time A short ordered. 19, 1967, almost two September On Rochester, University rolling in the receipt of this letter months after (student) defer- granted he was a II-S board, I-A. was reclassified McGee temporarily was reclassified He ment. him a notice classi- The Board mailed 1965, September II-S I-A informing clearly a letter fication and shortly there- was renewed classification right to ask for him that he had a 1966, February still after. In while personal appearance within or an II-S, requested conscien- classified days, that the had a Government stating objector status, tious Agent personal Appeal to aid him “with a his “intention continue on actual pro- appearance, appeal, or Priesthood.” clerk ordained right,” Agent Appeal cedural and that wrote him on March 23: give representative him or his This will the recent evi- advise legal on matters counsel Service Selective submitted, your concerning dence case charge. this un- at no McGee returned has been reviewed Local Board. writing opened, envelope on It is the decision of the Board that pursuant previous declara- Returned justify the re- evidence does tion and notification. your opening of case and reconsidera- unopened an order McGee also returned present your tion of classification. physical directing appear him to for a your However, we wish to advise 18, examination scheduled for October Objector will claim as Conscientious appear He re- and it. you longer qual- no be considered delinquency on No- notice sent turned ify for a classification. student open his McGee did vember decision; appeal this McGee did-not he notice, induction which sent Jan- granted requested later and was a fur 11, 1968, uary and did ther classification II-S October pass physical in- examination at duction center. he refused to April still while classified II-S submit to induction. University of and enrolled in the Roch- Johnson, Meanwhile, ester, had matriculated McGee wrote President Theological Seminary enclosing burnt Union as remnants his torn and September student draft letter stated that even full-time card. (stu- though “already accepted At time did a IY-D graduate study ministry) program dent from for the in a where” he theolog- probably qualify that his his draft but he “would for the claims necessary April deferment,” letter to the President ical he felt agents May every FBI interview two “sever link war” with violence grand jury testimony cooperate before a “with the refuse 1967, gave his board suf- II. in November classifying require information to ficient We shall deal first with trial, it was At established him IV-D. exemption was entitled to from Theological Seminary is Union military service as a matter of law under non-denominational, and that McGee’s U.S.C.App. 456(g), provides parish priest him recommended that: Seminary. of McGee’s The chairman [Sjtudents preparing ministry for the presence testified outside the draft board recognized the direction of jury was classi- that before McGee religious organizations, or churches pertinent fied all I-A satisfactorily pursuing who are full- file in his Selective recogniz- time courses instruction in Judge Murphy.found that was reviewed. theological divinity ed schools appel- rejected the board considered * * exempt training shall be objector claim. lant’s conscientious *4 (but and service not registration) from argues act- that his local board under this title. unlawfully classifying him I-A in ed statutory policy McGeecontends that the September he in his view when strong exemption may is so that the not should or I-O. have classified IV-D registrant any be denied who meets the premise he that cannot On that claims he qualifications. He concedes he refusing of to to be convicted submit request exemption the from his (Count 1) because order induction his board, but request claims no such illegal; to for induction was required by regulations. is the statute or refusing of to he cannot convicted any argues In event he the local physical (Count report for a examination knowledge board had sufficient of his 2) properly if he because had been classi- qualification exemption require for the to fied, he would not have been called its issuance. or, called, physical if could have waived penalty; the without It true that 456(g) examination and is section is failing mandatory provision to cannot be convicted of in the sense that possess may draft valid deny of board notice classification a IV-D ex (Count emption 3) qualifies because his to I-A classification one who for it. Oes argues tereich System was invalid. He also that he Selective Service Local supply cannot Board No. be convicted of failure to U.S. 4) (Count (1968).1 However, local L.Ed.2d information his it does substantially not disregard complied may follow because he totally that a procedures its and the because administrative supplied was favorable established Sys- the him. Selective Service attempts bring his case within board was informed of the letter Oestereich, supra, ground on the further President and almost two months after denied IV-D and classified McGee announced his intention to return punishment burning correspondence unopened. I-A as his draft These card, writing hardly Johnson, President the actions of a draft board lawlessly. refusing cooperate acting Moreover, with his local board. Oes Apart considerations, distinguishable from tereich is further because simply appellant sought through the record there does establish redress System the Selective contention. McGee wrote to Service un the Presi and was dent, enclosing justifiably deprived exemption remnants of draft of a IV-D his April card, re which he 1967. His local board obtained. McGee copy applied April ceived a never this letter on for a IV-D classification However, appellant impossible perceive was not I-A classified how the deprived punitively until II-S his could expired following gradua exemption him of deferment his had never re University quested. tion the of Rochester. This was months the almost five after questions rely which tem, trast to “classification own evaluation expertise right do involve or exercise of in the to a IV-D discretion, sup- subsequently hope both the local court will boards that a interpretation. at port McKart boards.” Id. S.Ct. While Thus, 185, 195, 89 at 1665. V. 1657, 1663, (1969), 23 L.Ed.2d S.Ct. * * * objector claims Conscientious cases, states that “[i]n Selective engaged in or deferments for those doctrine must be tailored the exhaustion necessary activities deemed “to the peculiarities of the administra- to fit the health, of the national maintenance Congress created,” system it rec- has tive ** safety, or interest” may ognizes doctrine that the exhaustion pear examples questions applicable like claims well be IV-D quiring expertise rely- McGee’s, where In exercise discretion. clearly presented— on facts never cases, System Selective Service presented local or indeed at all—to his stronger may interest the. courts board. having question decided necessary course, Of it is first instance local board and responsi- has appeal board, then which consid- bility registrants classifying question ers anew. instance, given first the information n.16, at Id. necessary perform its function. distinguishing body further the earlier *5 present the case does not apply which cases the exhaustion registrant present instance where a doctrine, the Court noted that: trying challenge to a cases all [T]hose involved ministerial of facts not to the basis presented objector claims, or case, claims the local board. such a the may pursued functioning system that well may have smooth the of through procedures challenges require administrative the well to classi- provided by the upon properly Selective laws. fications Service based facts not presented to the board be barred. Id. at 89 at 1666. S.Ct. n.15, at 89 at 1665. S.Ct. claim a IV-D ex proper emption depended McKart with the inter- upon dealt here resolution ' surviving
pretation essentially son” “sole of factual issues-which are exemption, U.S.C.App. (o), distinguish conceded. means question McKart, of swpra, the Court found to be a es such cases as where the statutory interpretation “certainly Oestereich, undisputed, and facts were supra, a matter of discretion.” Id. at where the board had rec Accordingly, ognized right registrant’s 89 S.Ct. at it refused the to a IV-D apply the exhaustion doctrine classification.2 the Whatever draft “simply case because there was no over- board’s determination have been whelming applied need” to have Selective McGee it for IV-D status System question supplied information, “resolve this it with full instance, trial, the first at least not where the even the facts adduced at as will process below, administrative is at an end be seen do show he was clearly exemption is faced with so criminal entitled to that prosecution.” Id. at at 1665. S.Ct. draft board could have arrived at but sharp Accordingly, McKart’s claim was thus con- one conclusion. trant) ; Bartelt,
2. For other cases where the claim
a stu-
United States v.
(7
1952)
(whether
dent
to a IV-D classification raised fact-
issues,
Eagles
divinity student)
;
ual
see
United
ex
v.
States
was full-time
Samuels,
304, 316-317,
Levy
Cain,
rel.
ex rel.
States
(nature
(1946)
(2
1945)
(nature
seminary
91 L.Ed.
of
seminary,
regis-
studies,
registrant’s
intentions).
motives of
exemption
say
priest
failure
a
even
IV-D
The
man.
any
he was
way
supply
supervising
or
from the local board
it with
McGee’s course of
study. According
supporting
record,
information is
suffi-
the di-
ground
disposition
vinity
cient
school which
that claim.
enrolled is
McGee
may
non-denominational
contain
Beyond
plain
many students
have not
who
formulated
exemption
denial
aof
IV-D
entering
ministry
the intention of
would have had a “basis in fact.” Under
and are not
under the direction
456(g),
requirements
section
at
two
least
organization.
religious
church or
divinity
must
be satisfied before
stu
record
some of the
discloses
at least
exemp
dent becomes
entitled
a IV-D
Catholic students at the
come from
school
preparing
He
tion:
must be
student
there,
Catholic seminaries to take courses
ministry
for the
under
direction
Indeed,
appar-
but
not.
McGeedid
recognized
religious organiza
church or
ently had been a student
a Catho-
at such
;
satisfactorily
tion
pur
and he must be
seminary,
go
lic
lege
left to
Hunter
but
Col-
suing a full-time
course
instruction in
University
and then the
of Roches-
recognized theological
divinity
ter where he receive a
Bachelor
Sci-
latter,
school.
toAs
it is clear that at
degree.4 Accordingly,
ence
McGee’slocal
the time McGee refused
induction3
board would not have had to
conclude
was a matriculated student
the Union
ministry
“preparing for
he was
Theological Seminary who was satisfac
the direction of” the Catholic Church.
torily pursuing a full-time
course
Perhaps
granted
study.
dispute, however,
What is in
exemption
had McGeemade
preparing
whether McGee was
for the
directly
it; perhaps
not. But we can-
ministry
recog
under the direction of a
say
that if
had followed the lat-
organization.
religious
nized church or
course,
ter
there would
been “no
There is evidence in the record that Mc
basis
fact” for its action.5
isGee
a Catholic and that he
ul
intends
timately
priest,
to become a
evi
III.
studying
that he
dence
under the
*6
direction of the Catholic Church when he
respect
In
his
contrast to
inaction with
parish
refused induction is slim. His
claim,
squarely
to the IV-D
placed
McGee had
priest testified that he had recommended
his 1-0
before the local
Seminary,
McGee
but
could
that
requested
board when
thought
completed
he
meant more than that he
young
Special
McGeeto
a serious
and decent
Form for Conscientious Ob-
only
purposes
correctly,
Theolog-
found,
We assume
for
of discus-
that Union
key date,
Seminary
sion that
this is the
than
rather
is “a
ical
seminary,”
non-denominational
time,
g.,
some earlier
e.
date of reclassifi-
he
not
did
treat
as dis-
positive
claim,
cation
the board.
of the IV-D
rather
proof
refused to
full-time
at-
treat
University
Rochester,
4. While at
recognized
tendance
at a
non-denomina-
Colgate
McGee took some courses
divinity
supplying
tional
school as alone
Divinity
Rochester
School.
prerequisite
exemption.
the other
for the
judge
finding
in-
McGee claims
that
the trial
In other
words
indicated
correctly
Theological
require-
read into
statute a
that
Union
Sem-
since
divinity
inary
non-denominational,
ment
that
school
itself
the nature
recognized
supply
direction
of the school
not
could
of itself
organization
religious
missing
as,
“direction,”
or-
church
in
element of
qualify
example,
der that
its
can
for
students
for
the case
seminary.
agree
exemption.
interpreta-
IV-D
denominational
Such
We
wrong
Eagles
tion of the statute
Of.
would indeed be
that
conclusion.
v. United
student,
school,
Samuels,
since it
is the
States
ex rel.
applies.
language
316-317,
to whom that
{$7
objector
although
applicants,
February
He contends
scientious
jeetor
1966.6
in
deny-
undoubtedly could
fact
have.7
in
was no
that there
basis
objector
ing his conscientious
in this case
While
we have the benefit
was thus
as I-A
reclassification
that his
testimony
of the
chairman of
unlawful.
any
reveal
local
does
denying
ap-
“basis in fact”
McGee’s
accept
inclined
We would be
indicated,
plication. As
the statement
argument.
step in McGee’s
first
in
his Form 150
beliefs
would seem
expressed his belief
Form
his
-
test,
statutory
meet
and what
Being
Supreme
whom
personal
“in
testimony
little
there is
superior
duties of
obligation
is
concerning
sincerity
chairman
McGee’s
considered,” and
relations
human
would,
anything, support
if
a conclusion
“taking part
form
in
said
thought
that the
McGee was
approv
military operation indicates an
* *
He
sincere.
testified that McGee “had
repugnant
situation
al/consent
been offered an alternative to the defer-
fellow man.”
and service God and
love
sought,
I-O, hospital
ment he
which was a
sincere,
statements,
if
These
service. He
not choose to
him-
avail
he, “by
of reli
reason
established
self of that.” He further testified that
training
belief,
gious
conscientious
* * *
was a
“[t]here
letter written
participation
ly
opposed
war
young
where we were advised that the
456(j).
U.S.C.App.
Neither
form.”
accept
man would not
or inferred
a I-O
prior
subsequent
were.
nor his
actions
testimony
wouldn’t.”
This
assertions, see Unit
with his
inconsistent
inaccurate. The letter referred to was
Haughton,
F.2d
ed States v.
Murray,
February
John A.
1966;
dated
nothing
(9
and we see
indicating
far from
McGee
file—all
that was before
I-O,
accept
support
a.
it was
of his
reasonably put his
could
board—that
sincerity
plication.8
particularly
issue. This
Acceptance
significant
light
of so much of Mc
chair
of the board
argument
testimony
still
Gee’s
does
lead to
man’s
conclusion
require
unless
is to be
for con-
excused
interview
request
protested
invite or
should
never
the draft
6. While
prior
action,
meet
for an
with it
interview
he ever with-
neither did
board’s
purpose
primary
application.
classification.
The Government
draw the
develop
fleeting argument
will be
the interview
further
makes a
objector
longer
on which the
facts
deferment.”
desired a I-O
“no
based,
sincerity
claim is
and the
of such
with-
meant
McGee had
If
this is
I-O,
claim.
does not
take
incor-
interview
drawn
*7
place
personal
appearance
of
rect,
notified.
the Board
never so
as
registrant may request
procedures
which
under
then
Service
Selective
1624.1,
a
Section
after
classification
such
in force make clear
now
action.
withdrawn
have had to be
would
41,
writing.
Local Board
as
Memorandum No.
Local Board Memorandum
in
July 30, 1968, supra
1952,
41,
amended, August 15,
re-
amended
note
as
No.
Reporter
ported in
Service Law
Selective
may
the chairman of the board
What
(including
(“S.S.L.R.”)
amend-
application
have meant was that McGee’s
July 30, 1968,
not
which are
of
ments
for
indicated
even if he were
I-O
relevant). Moreover,
let-
here
granted
I-O,
he would
July 23, 1967,
board,
in
to his
dated
ter
service,
as
re-
for
alternative
civilian
policy
non-
of
which he announced
quired the Act.
“personal
cooperation,
con-
restates his
eventuality
pass.
never came to
commitment.”
scientious
event,
on this
we would
record
currently
gard
System
McGee’s statement
that he would
Service
7. The Selective
accept alternate
service as a “basis
if it determines
board that
advises
denying
grant
I-O
in fact”
a I-O classification.
the I-A-O or
it cannot
claimed,
encourage
available to him
appeal
others
his I-A classifica-
failure
from
so,
doing
especially
to do
in
so.
cases where the
no reason
seeWe
tion.
good.
of
success
court seem
passages
McKart
chances
from
To the
200,
another,
agree
at
quoted,
add
U.S.
On
we
all this
find ourselves
we
Judge
opinion
at
ment with
of
1666:
the sensitive
89 S.Ct.
disagreement
Goodrich and in
with the
holding
apply to
[T]oday’s
does
Judge
able
dissent of
Maris
a case
registrant
every
ad-
who
take
fails
strikingly
McGee's,
similar
vantage of the
remedies
administrative
Palmer,
(3 Cir.),
Sys-
provided
Selective
States v.
denied)
cert.
76 S.Ct.
many
said,
For,
as we
tem.
agree
699 ambiguous. that affirmance reversal of the Local stated also He was prejudice gave Board, a I-A classi- and that on when the board again 1967, a fair what the level is cured consid- reviewed “we fication in file,” appeal,” on “we reviewed eration De Remer v. Unit appeared that the the in States, (8 712, young when ed F.2d 719 man’s case 340 Cir. the record of the 1965) (citing cases). gave pertinent and all See C.F.R. § I-A we him the 1626.26; States, contained,” supra, that McKart v. United therein 16, file be- 395 U.S. at n. the whole “the board considered States, 194; Storey on L.Ed.2d Mr. McGee I-A fore it reclassified 1966) (citing (9 September 19, chair- F.2d While the 1967.” cases); Clay v. United F.2d man “based our also that on testified (5 previous vacated and that his determination grounds, remanded objection de- on for other status conscientious (1969); nied, time L.Ed.2d 297 had alternative we Note, Service, I-A,” give we this as 76 Yale L.J. him a read Selective indicated, meaning only remem- the chairman As .171 good the fact had a factual bered dissatisfaction with the Board’s against way points showing application case in no McGee's taking one; insistence early the on case of 1966 and that was examined statutory change like McKart dif- their construction Board no reason to saw Judge eighteen fers since on such a matter there is minds months later. witness, positive advantage in resort to courts Murphy, heard the who saw and which alone can decide the issue authori- found the draft board “as a fact tatively uniformly for the benefit defendant’s considered the registrants. all objector Instead McGee’s stiff- status and a conscientious dealings necked with refusal have whole board considered System has Selective Service caused do how not see on We 23." expenditure regarded finding “clearly of countless hours can as grand petit jurors, and prosecutors, erroneous.” judges appellate of the trial and courts. if had even there alone, If we were free to look at his case failure to consider been an inadvertent tempted we still take Sep objection claim dissenting charitable of our view broth- assumes, dissent we tember as the if er. But should do that we would the same conclusion. reach case, obliged every do it in would be thing per precisely kind of that a course similar one. Of seems appearance sonal or a conference with require- “harsh” when exhaustion Agent, Appeal in which McGee was ment conviction refusal results letter vited in the he returned to have by a submit to induction unopened, have certain would been almost good exemp- seemingly with a reveal, the board the result points tion. But of the main one Mc passed would merits have exhaustion doctrine is relieve the Quite possibly it Gee’s claim. would having consider claims courts not, favorably; error acted if it ought first dealt with very likely corrected agencies; instance administrative name, appeal appeal.10 Despite their per- properly cannot be limited to those simply perform a review boards do not fail sons whose claims would court universally “It is held function. anyway. Appeal Board considers matters exceptions to there are its classifica While de novo and objec- instance, requiring rule mere a conscientious tion is one of first *9 developed appeal the local well have board could 10. Communication between true facts. 700 claim, government appeal availability of his appeal a denial of
tor
to
exhaustion;
agent
“If
him from
excused
Claimants
close to this case.
none comes
Agent
nothing
Appeal
than
does
more
required
administra-
to exhaust
are not
may
his
lose
the con-
advise
to attack
in order
tive remedies
stitutionality
right
statute,
to contest his classification
United
of
(D.
criminally prosecuted in the district
Sisson,
F.Supp.
520
294
v.
States
administratively ap-
ju-
J.), probable
Mass.1968)
court
failure to
(Wyzanski,
peal,
to
noted,
it would seem be worthwhile.”
396 U.S.
risdiction
regula-
had
who
But that cannot avail McGee
(1969), or
24 L.Ed.2d
in no uncertain
Branigan,
tions,
F.
advised the
v.
United States
anything
(S.D.N.Y.1969)
not read
terms that
they
would
Supp.
ap-
ground
him,
and would not
J.),
sent
(Weinfeld,
sensible
on the
pealed no
he was told. While
no
matter what
appeal
that since local and
boards
taking
attitude
McGee’smotives
authority
determine constitutional
to
they
may
highest,
do
of the
have been
claims,
for-
be a useless
exhaustion would
ap-
the relief
not excuse
failure to seek
qualification
mality.
Another
counte-
“exceptional
afforded him. To
which the law
peal requirement
to
relates
needlessly multiply the
underlying
nance this would
already heavy
and unusual circumstances
cases like
appeal,” Thompson
burden
Unit-
v.
failure
1967)
imposing
(10
on the courts.
States,
86, 88
Cir.
ed
380 F.2d
added).
(emphasis
of cases
But that line
IV.
neglecting
appeal is
holds
judicial
of classifica-
not a
review
bar to
convic-
therefore affirm McGee’s
We
justi-
registrant’s
tion if
failure
refusing to
tion Count 1 for
submit
Examples are
v. United
Donato
fied.
States,
respect
his claims
induction. Since
with
1962)
(9
(regis-
F.2d 468 Cir.
alleged
hinge
on the
2 and 3
Counts
of
notice
trant
received
classification,
impropriety
we
his I-A
firefighting duties; by
away on
while
counts
affirm the convictions
these
period for
the time he returned the
also,
what
without
need
consider
lapsed);
peal
v.
Glover
proper
if
had held
result
(reg-
States,
(8
1961)
Cir.
light
the I-A classification invalid.
unsuccessfully
pri-
appealed a
istrant had
of the
sentences there
concurrent
classification;
when he received
conviction under
need
consider the
classification,
du-
fifth
an exact
notice
here
4 under the circumstances
Count
fourth,
plicate
no reason
there was
presented.
through
go
process
expect him to
Affirmed.
again
explanation
in the absence
notice);11
from the board
the new
Judge (dissent-
FEINBERG, Circuit
Powers,
(5
v.
F.2d 438
|Powers
ing) :
1968)
(registrant given misinformation
respectfully
I
dissent.
secretary
the local board
recently
Supreme
The
told
Court has
garding right
appeal); United States
“it is
to remember that use
us that
well
Harris,
F.Supp.
(D.Ore.1968)
exhaustion doctrine
criminal
knowledge
(registrant
charged
exceedingly
McKart
can
harsh.”
cases
right
edu-
he had little
since
v. United
difficulty). The
cation and read with
23 L.Ed.2d
“exceptional
doctrine was
circumstances”
concept
harsh that
This case shows how
recently
perhaps
reaffirmed and
extended
particularly
here —it
be,
when—as
can
Davis,
United States v.
unnecessarily.
applied
record
(4
apparently
no basis
held that the
that there was
shows
denying
ob-
the conscientious
fact
board’s failure to advise the
from,
opinion quoted
in this context.
must
read
the dissent
language
11. The
*10
McGee,
jeetor
left,
testimony
Francis
claim of Vincent
of the board chairman
(as
this,
agree),
Jr.
we all
McGee resolves it in favor of the conclusion that
timely
presented
February-March
his claim in
fashion
1-0
body
draft
and that
his local
claim was not considered on the merits.
passed on
of the
majority correctly
the merits
claim.
points
While the
out
never
this,
Despite
the doctrine
exhaustion that the chairman testified that when the
remedies,
placid
application
born in
area
was first filed in
“there
* * *
thereby
law,
administrative
is invoked
weren’t sufficient facts
to moti-
consigning
jail
years.
grant
for two
McGee
vate me to
quest
the re-
sought,”
That
too
for me.
“harsh”
and that “what he set
grant
forth did not motivate me to
him
majority opinion points out,
As the
Mc-
sought,”
the relief he
he also testified
present
claim in full
Gee
his 1-0
rejected
application
“at that
February
Exam-
his local board
* * *
young
time
because the
man
compels
conclu-
ination of the record
attending college
my
was
judg-
local board did not at
sion
qualification
ment he rated a 2S
which we
1-0
time consider his
proceeded
give
(Emphasis
him.”
add-
application
on the merits.
board re-
ed.)
immediately
Almost
thereafter the
application
fused to consider his initial
following interchange
place:
took
ground
for
1-0 on the
that was then
eighteen
student,
later,
months
Q.
you
I believe
said
before
classify
September 1967, refused to
Mc-
you
was because of his beliefs that
ground
Gee 1-0
his claim
grant
failed to
him a CO?
rejected.
been
say anything
A.
I did not
all
requires
“the
C.F.R.
1623.2
about his beliefs. You
can refer
opinion
registrant shall be classified in the lowest
my
record.
I
said
what
class
which he
determined
he set forth did not motivate me to
eligible.”
(student
Since
defer-
II-S
grant
sought.
him the relief he
ment)
ais
lower class than 1-0 accord-
following
Then
interchange
came the
reg-
be-
hierarchy
forth in
set
government
tween
attorney
ulation,
and the
improper
would have been
(Mr. Lande):
board chairman
grant
long
McGee a 1-0 so
II-S,
unquestion-
as he held a
which he
Honor,
Mr. Robinson: Your
I think
ably
presented
did at the
he first
time
Mr. Lande has testified that Mr. Mc-
his 1-0 claim. Thus it is difficult
Gee was a student at that
time
majority’s
understand the
contention
gave
they
therefore
him a
classifi-
2S
the local board’s letter to
dated
cation.
“ambiguous”
March
The Witness: I did state that.
whether the 1-0 claim had been consid-
ered on the merits at that
time.
light
regulation,
the letter re-
then held a II-S classification. Under
by McGee,
ceived
and the
chair-
regulation, therefore,
consideration of
testimony,
man’s own
the conclusion
the merits of McGee’s 1-0 claim would
inescapable
seems
that when McGee
have been a
fruitless task
the board plied
prop-
for 1-0 in 1966 his claim was
since it
liged
event have
ob-
been
erly
merits,
not considered on the
but was
unchanged.
to leave his II-S status
denied because he held a II-S classifica-
The letter
itself advised McGee that
tion at that time.
“your
Objector
claim as Conscientious
you
longer
will be
quite clearly
considered when
The record also indicates
qualify for a student classification” —in
that when
was classified I-A in
McGee
1967,
light
regulation,
of that seems a state-
enough
plain
rejected
ground
ment
previ-
of reason
which is
on that it had
any ambiguity
ously
me. And if
rejected,
there were
considered
not-
*11
testify concerning
memory.
withstanding
did
the initial
not
the fact that
such
true,
noted,
testify:
say
It
As
jection
the
he did
“I did not
not on merits.
was
anything
out,
trial
majority joints
that
at all
the
the
about his beliefs.” Such
as
judge
“consid-
not
the local
evaluation of
was
found that
board
McGee’sbeliefs
necessary
February
application
in
Mc-
the
ered
defendant’s
because
ineligible
objector
and that Gee
then
status
was
1-0 because
conscientious
by
Moreover,
on of
board
the whole
his II-S.
the chairman’s
was considered
testimony
23,”
the
true that
made
that
did
dis-
September
and also
clear
“re-
the board
cuss McGee’scase with other members
chairman testified
young
February
man’s
the
the
board
viewed
record
the
per-
gave
event,
neither
him the 1A
all
the record
case when
establishes
contained.”
the
therein
chairman
nor the entire board
tinent
alone
However,
na-
as
the
he also testified
ever considered whether
beliefs
McGee’s
of a
were those
conscientious ob-
ture of that review:
sincere
jector to war.
my rec-
The
To
best of
the
Witness:
* * *
[Sep-
time
at that
Such
failure to consider McGee’s
ollection
no
error
the
was
claim on the merits
tember
longer
was
clear
1967]
previ-
our
Based on
the
requires
think
in school.
local
which one would
setting
in-
ous
that his
an order for
determination
aside
objection
de-
status was
duction. The
only blunder,
failure was
board’s
nied,
time
it also
a se-
we had no alternative at that
but
violated
give
regulation,
1A,
did.
com-
him a
which we
service
but
lective
in-
mands it “to
consider all
receive
Q. You didn’t consider the conscien-
formation, pertinent
the classification
again
objector
tious
because
registrant, presented
it,”
of a
32 C.F.R.
previously?
had been denied
(emphasis added),
undoubt-
1622.1
§
g.,
[Emphasis
edly
A.
E.
added.]
as well.
violated the statute
Yes—
(1):
App. 455(a)
50 U.S.C.
denying
Thus it is
clear
the basis
September
the
1-0 status
1967 was
persons
for train-
selection
The
**
previous
February-March
denial
made
shall be
and service
application
submitted.
when
was first
manner,
impartial
in an
noted,
And,
as
record
even
regulations
President
as the
rules and
**
clearer that this initial consideration
may prescribe
*.
February-March 1966 did not deal with
Yet,
or-
we are told that
board’s
application or the
the merits of the
nature
Mc-
der
should
be invalidated because
beliefs,
sincerity
was
appellate remedies
to utilize
Gee failed
based
the fact
he was a student
System.
I
within the Selective
not,
classification,
with a II-S
who was
agree
required to in-
do not
that we
eligible
reason,
for that
for 1-0 status.
in this
voke the
of exhaustion
doctrine
pass
mer-
At no
did the board
on the
time
supra,
McKart,
con-
case. It is true that
though,
claim,
its of
as
even
strong indications,
quoted
tains
found,
judge
application
trial
majority,
limited failure
even the
the board
“considered”
may
present
to exhaust
here
sometimes
I
as
But do not read that case
be fatal.
necessarily
majority
position
The
takes the
invariably preventing the
“the
chairman remembered
Board’s
when
of invalid classification
defense
showing
dissatisfaction with McGee’s
give
did
all
facts
examined
board, especially
the record
where
early
no
Board saw
1966 and
applied
indicates
eighteen
change
“expertise”
their minds
in its ultimate decision
reason
actually
consider the classifi-
chairman
months later.”
Compare
might
appeal
also
the merits at all.
here. The
cation on
supra,
regarded
McKart,
case,
n.
convictions dissent-
proceedings with this consistent
ing opinion. America,
UNITED STATES Plaintiff-Appellee, GRIMES, Defendant-Appellant.
Noah No. 28945
Summary Calendar. Appeals, Court of States
Fifth Circuit.
May 18, 1970.