United States v. Bender, 206 F.2d 247, 3rd Cir. (1953)

206 F.
2d 247
UNITED STATES
v.
BENDER.
No. 10939.
United States Court of Appeals Third Circuit.

Argued June 19, 1953.
Decided July 21, 1953.
William Allen Rahill, Philadelphia, Pa. (Elvin R. Souder, Souderton, Pa.,

on the brief), for appellant.
Richard H. Warren, Asst. U. S. Atty., Scranton, Pa. (Arthur A. Maguire,
U. S. Atty., Charles W. Kalp, Asst. U. S. Atty., Scranton, Pa., on the
brief), for appellee.
Before McLAUGHLIN, KALODNER and STALEY, Circuit Judges.
McLAUGHLIN, Circuit Judge.
Appellant was convicted of refusing to submit to induction into the armed

forces of the United States.
In September, 1949, he filed his Selective Service classification questionnaire.

He did not fill out or sign Series XIV of that document which was for the use of
registrants asserting conscientious objector exemption. He stated in the
questionnaire that in his opinion he should be classified as I-A. He was so
classified December 13, 1949, and was notified of this by his local board on
December 20, 1949. On January 19, 1951, the order to report for physical
examination was mailed to him. Three days later he filed with the board a
completed Selective Service Conscientious Objector Form. Registrant
apparently signed claims, which appear on that form, for exemption from
combatant service alone as well as from both combatant and non-combatant
service. There seems to have been an effort to erase registrant's signature from
Series 1(A) which asks exemption from combatant service only. We find no
explanation of this in the record. The registrant is instructed on the form to sign
one of the claims but not both and to strike out the statement in the series which
he does not sign. On January 31, 1951, he was continued in classification I-A
by the board. On February 13, 1951, appellant wrote the board saying that since
it "* * * did not see fit to reclassify me as a conscientious objector and since I
have passed my physical examination I am hereby appealing to you to forward
to the Board of Appeal my request for a IV-E classification." On February 28,
1951, the board wrote appellant saying: "At a meeting of Local Board 118
today, your case was brought up for discussion and vote. The Board felt that,
even though new facts have been presented to the Board, these do not justify a
change in your classification. The Board feels that the information, though true,
does not warrant the reopening of your classification. Therefore your
classification will continue in I-A as before. * * * P.S. Appeals can be made
only within ten days after your first classification."
3
On March 28, 1951, an appeal was taken on behalf of registrant under Section
1626.2 of the Regulations by the Government appeal agent for the local board.
Registrant's file was forwarded to the appeal board for the State of
Pennsylvania by the local board with the following letter which was signed by
Dorothy E. Shope who was the secretary of the local board: "We herewith
submit the file of the above registrant who claims to be a Conscientious
Objector, and is appealing his I-A classification. You will note that when the
registrant filed his questionnaire he did not request SSS Form No. 150. On
January 22, 1951, Rev. J. Roy Asper came to this office with Richard Earl
Bender and filed the SSS Form No. 150. This form was not requested from our
Board. The members of this Local Board are very strongly opposed to a IV-E
Classification for this registrant. The family background is well known by them
and is of such a nature as would not warrant a Conscientious Objector
classification." Miss Shope was a trial witness. She testified that after appellant
had filed his conscientious objector form the board decided not to change his IA classification. That decision, according to Miss Shope, was based partly upon
the knowledge and information (outside of the information in appellant's file)
members of the board possessed concerning appellant's family.
Under Section 6(j) of the Selective Service Act of 1948, 50 U.S.C.A.Appendix,

456(j), appellant's claim of conscientious objection was forwarded to the
Department of Justice by the appeal board. After the appropriate statutory
inquiry by the Federal Bureau of Investigation a hearing was held with respect
to the character and good faith of appellant's objection. Following that the
hearing officer found "* * * that registrant has not met the burden of proving
beyond a reasonable doubt, that his claim for classification as a conscientious
objector is based upon that religious training and belief required by the
Selective Service Act."
Though registrant's conscientious objector form had not been obtained from his
local board and the practice with reference to the time and method of its filing
had been completely disregarded, the board after receiving it reexamined the
case in order to determine whether the claim necessitated the reopening of
appellant's classification. In doing this the board unquestionably considered the
filing of the form as a request from registrant to reopen and reconsider his I-A
classification. The board's action was in accord with the high principles of the
Selective Service Act itself and of the hard-working, vitally important and far
too little praised local boards. Under Regulation 1625.4 if "* * * the local board
is of the opinion that such facts if true would not justify a change in such
registrant's classification it shall not reopen registrant's classification." The
board, having arrived at the above quoted conclusion, notified the registrant as
the regulation directed and placed a copy of the letter in registrant's file. Cf.
United States v. Zieber, 3 Cir., 1947, 161 F.2d 90, certiorari denied 333 U.S.
827, 68 S.Ct. 454, 92 L.Ed. 1112.
If there were nothing else involved in this appeal than the above situation the
classification determined by the Board would be upheld as having substantial
basis in fact and not being arbitrary or capricious. Estep v. United States, 327
U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567. Registrant's testimony that he possessed
the identical conscientious objection at the time he filled out his original
questionnaire as when he executed Form 150 furnished ample support for the
board's decision. In his Form 100 registrant stated that he should be classified
as I-A and did not make assertion of conscientious objection in the plainly
indicated section covering that sort of contention. It was not until one year and
four months later, and then within four days after the Notice of Physical
Examination had been mailed to him, that registrant for the first time advised
the board of his claim. Cf. Imboden v. United States, 6 Cir., 1952, 194 F.2d
508, 512, certiorari denied 343 U. S. 957, 72 S.Ct. 1052, 96 L.Ed. 1357.
A registrant might possibly become a bona fide conscientious objector after his
original Form 100 had been filed and prior to induction, but that is not the
problem confronting us. This appellant allegedly had the same scruples when
he executed his initial questionnaire as later when he submitted his Form 150. It
was the board's duty to pass on the question of which was the believable
evidence and upon the soundness of the objection. Cf. United States v. Clark,
D.C.W.D.Pa.1952, 105 F.Supp. 613 and United States ex rel. Hull v. Stalter, 7
Cir., 1945, 151 F.2d 633.
If registrant's classification had been reopened he would have had the same
right to personal appearance before the board as on his original classification.
Regulation 1625.12. With reopening denied he was not entitled to that
additional appearance. Much is said about his right to appeal but that question
is academic here for not only was an appeal taken for him to the state board
through the local board's appeal agent but he was thereafter granted an appeal
to the President by the Director of Selective Service.1
9
It is also argued that the board dealt arbitrarily with a request for the ministerial
classification of appellant.
10
On June 4, 1952, following the decision in the appeal to the President, notice of
classification was mailed registrant. On July 7, 1952, just three weeks before he
was ordered to report for induction, the board received a letter from the
president of Messiah College saying that Bender had been accepted as a student
in the theological department of the college "and plans to enter a full time
ministerial training program September 3, 1952. * * * We are therefore
requesting for Richard Earl Bender the ministerial candidate classification or
4D." The board took no action on the letter and thereby, according to registrant,
violated Regulation 1625.4.
11
The regulation outlines the method a local board must follow where it refuses
to reopen and consider anew a classification. It states that where "the written
request of the registrant, the government appeal agent, any person who claims
to be a dependent of the registrant or any person who has on file a written
request for the current deferment of the registrant in a case involving
occupational deferment" is rejected under the circumstances outlined in the
regulation, the board must notify the person filing the request of its decision.
Appellant's theory is that the board should have passed upon the request and
advised the college of its determination. This cannot be inferred from the
regulation and we have not been referred to or ourselves found any supporting
decision. The request, such as it was, did not come from any of the sources
specified by the regulation. Occupational deferment was the only possible
category under which the letter might qualify and there was no request on file
from the president individually or the college "for the current deferment of the
registrant in a case involving occupational deferment" as called for by the
regulation.
12
However, there is another element which contributed to the board's decision

denying appellant's claim under Form 150 and which destroys its validity. Miss
Shope, the secretary of the board, was a government witness at the district court
trial. On cross examination she was asked what information the board had
before it at the time it rejected the claim. She answered: "Well, they considered
the information on the Form 150, and I think the family is well known to all of
the Board members, and they felt the information did not justify a change in
classification." She was next asked, "Was that decision based partly upon the
knowledge and information that members had about the family outside of the
information in the folder?" To that question she answered, "Yes." Her
testimony was not contradicted, modified or explained. Her earlier letter on the
same topic standing alone might have been of minor importance. Coupled with
the above evidence the conclusion is inevitable that she spoke for the board and
that the latter's ruling was founded in part upon information concerning
registrant and his family not contained in his file. Regulation 1623.1 prohibits
this. It provides that "The registrant's classification shall be determined solely
on the basis of the official forms of the Selective Service System and such other
written information as may be contained in his file. * * * Under no
circumstances shall the local board rely upon information received by a
member personally unless such information is reduced to writing and placed in
the registrant's file." Regulation 1626.13 dealing with appeals is to the same
general effect. And see United States v. Zieber, supra, and Smith v. United
States, 4 Cir., 1946, 157 F. 2d 176, certiorari denied 329 U.S. 776, 67 S.Ct.
189, 91 L.Ed. 666. The letter signed by Miss Shope was not part of registrant's
file and in any event cannot reasonably be construed as satisfying the mandate
of the regulation to summarize in writing what she agreed in her testimony was
"* * * the knowledge and information that members [of the board] had about
the family outside of the information in the folder."
13
The hearing officer's report is also attacked on several grounds of which one is
meritorious. According to the report the hearing officer required registrant to
establish his exemption under the Act beyond a reasonable doubt. It is true that
in the adaptation of the language of the day to day business of the courts to the
radically different administrative procedure of the Selective Service System
terms and standards may lose their ordinary connotation. Cf. Ex parte
Stanziale, 3 Cir., 1943, 138 F. 2d 312, 314, certiorari denied Stanziale v.
Paullin, 320 U.S. 797, 64 S.Ct. 267, 88 L. Ed. 481. With that in mind it may be
that in this matter the hearing officer did not intend registrant to be put to the
same test in his proofs as in a criminal proceeding, but we must take the rule
pronounced at its face value. So construed, it placed too high a burden on
appellant. Registrant was obliged to show clearly his exemption under the
statute, but no more than that. Cf. United States ex rel. Bodenstein v. Nichols, 3
Cir., 1945, 151 F.2d 155.
14
The judgment of the district court will be reversed.
Notes:
In this connection it should be noted that while the regulations do provide that
appeal be taken within ten days of classification, as mentioned by the board in
its letter to registrant above quoted (Regulation 1626.2), the conscientious
objection application for exemption before us was made long after the original
classification. Conscientious objectors are allowed an appeal under Section 6(j)
of the Act where the "* * * claim is not sustained by the local board." With the
serious defects in this claim waived by the board when it was accepted for
consideration, in our view the board's decision that it did not present new facts
warranting reclassification brought registrant within the appellate right given
by Section 6(j). Cf. United States v. Clark, supra. The appeals actually allowed
registrant eliminated any possible substantial harm as the result of the board's
failure to refer to the special appeal granted conscientious objectors

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206 F.

United States Court of Appeals Third Circuit.

William Allen Rahill, Philadelphia, Pa. (Elvin R. Souder, Souderton, Pa.,

Appellant was convicted of refusing to submit to induction into the armed

In September, 1949, he filed his Selective Service classification questionnaire.

Under Section 6(j) of the Selective Service Act of 1948, 50 U.S.C.A.Appendix,

However, there is another element which contributed to the board's decision

The judgment of the district court will be reversed.

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