United States of America, Plaintiff-appellee, v. Thomas Michael Riely, Defendant-appellant, 484 F.2d 661 (7th Cir. 1973)

Appellant's failure to report for induction on October 28, 1969, was followed by criminal prosecution, conviction, and this appeal. He contends that his induction order was defective because his local board failed to state reasons for denying him exemption as a conscientious objector on August 19, 1967.

Under the reasoning of our decision in United States v. Lemmens, 430 F.2d 619 (7th Cir. 1970), his contention would fail because his SSS-Form 150 did not describe a belief which on its face fulfilled the legal requirements. He argues, however, that the confession of error by the Solicitor General in Joseph v. United States, 405 U.S. 1006, 92 S. Ct. 1274, 31 L. Ed. 2d 473, as interpreted in United States v. Weaver, 474 F.2d 936 (7th Cir. 1973), has extended the Lemmens rule to cover all unexplained denials of exemption after a reopening that would have been improper unless the registrant stated a prima facie claim. As we read the Solicitor General's Memorandum in Joseph, it does not go quite that far; moreover, the legal significance of that document is somewhat obscure since the government has not confessed error in this case.

We first consider the case without regard for the Joseph Memorandum and then turn to its significance.

Appellant registered in 1964, received a student deferment in 1965, and, in 1966, was classified I-A. On May 19, 1967, he submitted his Form 150 requesting a I-O classification. The form was not supported by any letters or documents, stated that appellant had not given public expression to his views, that there was no individual upon whom he relied for religious guidance, and that he was not a member of any religious sect or organization. The source of his beliefs was described as "deep thinking of the subject matter under the influence of mind expanding drugs." The basis of the claim was stated as a belief "that man, as part of the Universe, was created to live together and make achievements which will better the entire human race, and under no circumstances become involved in organized war."¹ 

Appellant's Form 150 was plainly insufficient on its face. Making the dubious assumption that the unsupported, vague assertion in the form may be interpreted as an expression of opposition to "war in any form," see Gillette v. United States, 401 U.S. 437, 444-446, 91 S. Ct. 828, 28 L. Ed. 2d 168, appellant's statement wholly failed to satisfy the statutory requirement that his claim be rooted in "religious training and belief," even as that phrase has been construed in United States v. Seeger, 380 U.S. 163, 85 S. Ct. 850, 13 L. Ed. 2d 733, and Welsh v. United States, 398 U.S. 333, 90 S. Ct. 1792, 26 L. Ed. 2d 308.²  In our opinion, appellant's assertions were not the kind of "non-frivolous allegations of facts" that would have required the board to reopen his classification under the test stated by the Supreme Court in Mulloy v. United States, 398 U.S. 410, 416, 90 S. Ct. 1766, 26 L. Ed. 2d 362.

But since the board did reopen his classification, appellant argues that it could not legitimately deny him an exemption without furnishing a statement of reasons. This argument is not supported by the Lemmens analysis.

We first note that the board action under review took place over two years before the statute was amended to require that registrants be furnished a brief written statement of the reasons for adverse Board decisions. See Fein v. Selective Service System, 405 U.S. 365, 377-378, 92 S. Ct. 1062, 31 L. Ed. 2d 298. Although there was no statute or regulation in 1967 requiring that such a statement be furnished; we have nevertheless held, consistently with other circuits,³  that a statement of reasons is essential if "meaningful" review would otherwise be impossible, United States v. Lemmens, 430 F.2d 619 (7th Cir. 1970). In that case, after carefully establishing the proposition that the registrant had described the type of belief which qualifies for the exemption, see 430 F.2d at 621-622, Judge Fairchild explained the reason for the rule- ". . . the court cannot otherwise determine with any degree of assurance that the decision really made by the Board properly supported the rejection and had a basis in fact." Id. at 624.

That reason is inapplicable if the registrant's claim is plainly insufficient on its face. For in such a case his lack of entitlement to the exemption does not depend on the board's appraisal of his veracity. He has the burden of both bringing facts establishing his right to an exemption to the attention of the board and also convincing them of his veracity. As long as the impact of the second issue is meaningless, no purpose would be served by insisting on "meaningful" review of that issue.

Under the law of this circuit as it had developed prior to the confession of error in Joseph, the Board's failure to explain its rejection of appellant's conscientious objector claim would have been considered harmless since his claim was insufficient on its face.

Appellant argues, however, that since the board did reopen his classification after he submitted his Form 150, it must have found his claim sufficient on its face, and even if that finding is erroneous, we must accept it. This argument is predicated on the Solicitor General's confession of error in Joseph and is supported by this court's recent decision in United States v. Weaver, 474 F.2d 936 (7th Cir. 1973). Weaver, however, is distinguishable on a ground which makes the Solicitor General's Joseph analysis inapplicable here.

The approach taken by the Solicitor General in his Joseph Memorandum focuses on the actual basis for the board's rejection of a claimed exemption. Under his reasoning, if the board's denial actually rested on a finding of insincerity, the registrant is entitled to meaningful review of that finding even though the board's assumption that a prima facie case was stated is erroneous.⁴  That analysis does not require that a statement of reasons be furnished if it is perfectly clear that the board action rested on a determination that the registrant's claim did not meet the statutory criteria.⁵ 

Appellant argues that such a conclusion is foreclosed in this case because the board did reopen his classification, and under the regulations then in effect, a reopening would have been improper unless the board determined that he had stated a prima facie case for exemption.⁶ 

It is manifest that the board made a procedural error. Either it erroneously made an entry on appellant's record which implied that his classification had been reopened even though the board had not determined that his claim for exemption was sufficient on its face, or else the board erroneously determined that his claim was sufficient and then summarily denied the exemption without appraising his sincerity in a personal interview. Quite clearly, the former is the more reasonable interpretation of this record.

Prior to May 19, 1967, when he submitted his Form 150, appellant was classified I-A. The next entry which appears in his file (SSS Form 100) on August 19, 1967, simply reads, "I-A." App. 13. Since appellant was not invited to appear before the board before August 19, 1967, that entry cannot reasonably support the conclusion that the board simultaneously found (a) that the appellant's claim demonstrated that he was entitled to exemption if he was sincere, and (b) that he was, in fact, insincere.⁷  We are persuaded, to quote the Solicitor General, "that the only determination that could possibly have been made on this record was that petitioner's claim did not meet the statutory criteria. In such a situation, the board's decision, whether characterized as a refusal to reopen . . . or as a denial of exemption after reopening . . . would necessarily have been based on a determination that petitioner was not prima facie entitled to conscientious objector status. Consequently, it was not obliged to state reasons." Memorandum for the United States, supra, n.2, page 21.

In Weaver the registrant made a personal appearance before the board on December 9, 1969, in connection with his request for conscientious objector status. It is entirely possible that Weaver's personal interview caused the board to reach the conclusion that he was insincere.⁸  Under the Solicitor General's reasoning in Joseph, the registrant was entitled to meaningful review of that conclusion, and the failure to furnish a statement of reasons for the board action dictated reversal of Weaver's conviction. But in this case, since there was no personal appearance in connection with appellant's request for conscientious objector status, and the entire record before the board relating to that request was limited to the Form 150 itself, the Solicitor General's analysis dictates affirmance.

The judgment is

Affirmed.