Albert Stain, Appellant, v. United States of America, Appellee, 235 F.2d 339 (9th Cir. 1956)

Albert Stain was found guilty (jury waived) of wilfully refusing to submit to induction into the Armed Forces of the United States, Universal Military Training and Service Act, Title 50 U.S.C.A. Appendix, § 462,¹  and appeals, claiming the status of conscientious objector.

Appellant first registered under the Selective Service Act on November 6, 1946, but made no claim relative to conscientious objection to war. His local board classified him 1-A and gave notice thereof to him. He took no appeal. In 1947 he notified his board that he had moved to Canada. Subsequently he returned to the United States and, on January 5, 1949, again registered with the same local board, this time under the Universal Military Training and Service Act.² 

The standard classification questionnaire form, Series XIV, page 7, relating to conscientious objector claims, was not filled out. In fact, nothing in either registration questionnaire, as filled out by appellant, gave the slightest hint that the registrant held conscientious objector views. Again, appellant was classified 1-A, was so notified, and again no appeal was taken. Subsequent to such classification the board notified appellant to report for physical examination and, on September 6, 1950, he took and passed the examination. Apparently, while being examined, he made some reference to the subject of conscientious objection, and was informed that he could get the special form, as to that subject, from his board. Acting upon such information, he received and filled out and returned the form to the board with reasonable promptness, setting up facts upon which he claimed the status of conscientious objector. We quote the applicable statute in the margin.³  The facts set forth refer to his religious bringing up in a Christian family and his reading of the Bible. They are vague as to facts bearing upon a conscientious objection to war, and all of them relate to his religious habits from childhood to the present. There is nothing, as to any change of belief since either registration.

On September 26, 1950, there was placed in appellant's file a statement as follows:

"Board decided that inasmuch as Albert Stain, on the basis of his Questionnaire, was given a physical examination and found acceptable without protest, his record cannot be reopened."

No notice of this decision was sent to appellant. On October 3, 1950, appellant was ordered to report for induction, and on October 18, 1950, he appeared at the induction station and was found physically acceptable, but he declined to be inducted. This prosecution and conviction followed.

Appellant here seeks a reversal of the judgment of conviction, claiming that the action of his local board denied him procedural due process. His main contention is that the local board arbitrarily refused to consider his conscientious objector form upon its merits.

At the trial, counsel for appellant argued that appellant did not originally claim conscientious objector status because of mistaken advice from a cousin who helped him fill out his questionnaire, and because of appellant's lack of understanding of Selective Service regulations, owing to his low mentality. There was evidence presented at the trial which showed that appellant was given a neuropsychiatric evaluation at the request of the Selective Service after his refusal to be inducted and was found by the examining doctor "to fall into the category of the mildly, inadequate, somewhat emotionally unstable group of individuals who might possibly break down under severe enough stress and strain." From the documents in appellant's file, it was argued that it might have been found, had the board considered the merits of his claim, that appellant did not previously apply for such status due to lack of knowledge as to such a classification.

Government argues that appellant should not be allowed to contest the validity of his 1-A classification since he did not appeal from being so classified and thus did not exhaust his administrative remedies. If we were merely called upon to determine whether or not there was a basis-in-fact for such 1-A classification, we might agree with appellee. But we are here dealing with a different phase of the case.

As heretofore said, no previous objection to the 1-A classification had been made and no claim as to conscientious objection to war had been voiced by appellant.

The Selective Service System regulations provide as follows:

Title 32 C.F.R. § 1625.1(a):⁴  "Classification Not Permanent. (a) No classification is permanent."

Title 32 C.F.R. § 1625.2:⁵  "When Registrant's Classification May Be Reopened And Considered Anew. The local board may reopen and consider anew the classification of a registrant (1) upon the written request of the registrant * * * if such request is accompanied by written information presenting facts not considered when the registrant was classified, which, if true, would justify a change in the registrant's classification; * * * provided, in either event, the classification of a registrant shall not be reopened after the local board has mailed to such registrant an Order to Report for Induction * * *."

Title 32 C.F.R. § 1625.4:⁶  "Refusal To Reopen And Consider Anew Registrant's Classification. When a registrant * * * files with the local board a written request to reopen and consider anew the registrant's classification and the local board is of the opinion that the information accompanying such request fails to present any facts in addition to those considered when the registrant was classified or, even if new facts are presented, 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 the registrant's classification. In such a case, the local board, by letter, shall advise the person filing the request that the information submitted does not warrant the reopening of the registrant's classification and shall place a copy of the letter in the registrant's file. * * *."⁷ 

At the time appellant filed SSS Form 150 (Special Form for Conscientious Objectors), he had not been ordered inducted but had only been physically examined. Therefore, under the regulations (see § 1625.4, supra), if, in the board's opinion, his filled-in form 150 contained information in addition to that considered when appellant was classified 1-A and/or "new facts", which presented a prima facie case for a conscientious objector classification, the local board should have reopened the record for the determination of whether appellant was entitled to the change requested.

It does not appear that the board followed the regulations set out above. Instead, with the conscientious objector form for reclassification before it, the board decided that the petition came too late. The board's statement, which we have heretofore quoted is as follows:

"Board decided that inasmuch as Albert Stain, on the basis of his Questionnaire, was given a physical examination and found acceptable without protest, his record cannot be reopened."

We transpose the board's statement in order more readily to understand it, to-wit: —

"Inasmuch as appellant was given a physical examination in accordance with his classification as shown by his questionnaire and he was found acceptable and he made no protest then about it, his record cannot be reopened."

It is certain that this board order, denying appellant's petition for reclassification, was not based at all upon the information in the integrated questionnaire as it stood immediately after the SSS Form 150 had been filed. (It is plainly printed upon SSS Form 150 that when it is filed, it becomes a part of the registrant's questionnaire.) Here, the conscientious objector SSS Form 150 was filed after the event which the board seemingly found to constitute a cut-off date precluding reopening. As we have seen (regulation § 1625.2, supra), the real cut-off event (with an exception not here pertinent) is the mailing of the order for induction. It therefore appears that the denial of the petition to reopen and reclassify was made independently of, and without consideration of, the petition's contents.

The board did not even obey the directive contained in Regulation § 1625.4,⁸  supra, as to notice to appellant of its ruling, though we are not clear that prejudice resulted from this oversight, since there is no administrative appeal from a denial of reopening.⁹  However, with prompt notice, appellant could have protested the ruling with at least a chance that the board would have seen and corrected its procedure.

We hold that the procedure followed by the board, in arriving at its ruling denying the petition to reopen and reclassify, was illegal and deprived appellant of due process of law, and that he was prejudiced thereby.

We are not holding that the board could, or could not, have determined from the evidence that there was a basis-in-fact for the denial. See United States v. Ransom, 7 Cir., 1955, 223 F.2d 15. That question was one the board should have answered but it did not. Had it considered the question, it would have had to apply Regulations §§ 1625.1(b),¹⁰  1641.1,¹¹  and 1641.2(b).¹² 

Since due process of law has not been accorded to appellant by the board, to his substantial prejudice, the board's order is void and appellant's refusal to be inducted under it was not a criminal or illegal act.¹³ 

Reversed.

CHAMBERS, Circuit Judge (concurring).

It is apparent to me that the trial judge who saw and heard Stain on the witness stand concluded from Stain's testimony that Stain's claim of conscientious objection and inability to understand the selective service proceedings was a sham. In this, the trial judge should have every intendment. However, under the particular circumstances here, I concur that the local board did not give the defendant due process.