Musser v. United States
414 U.S. 31 (1973)

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U.S. Supreme Court

Musser v. United States, 414 U.S. 31 (1973)

Musser v. United States

No. 72-1733

Decided November 12, 1973*

414 U.S. 31

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

Syllabus

A local draft board's mere refusal to reopen a registrant's classification following a claim for conscientious objector status made after issuance of an order to report for induction and based on an assertion that the registrant's conscientious objection to war in any form had crystallized after the issuance of the order to report, cannot signify more than a recognition of lack of power to reopen, and cannot be read as a "denial" of the claim on the merits, and thus a bar to in service review, no matter what the board's apparent motivations in refusing to reopen may have been, and notwithstanding an expressed or unexpressed indication of the board's view of the claim. Ehlert v. United States,402 U. S. 99. Certiorari granted; No. 72-1733, 478 F.2d 1068; and No. 72-6748, 474 F.2d 90, affirmed.

PER CURIAM.

The petitioners in these cases were each convicted for refusing to submit to induction into the Armed Forces, 50 U.S.C.App. § 462(a), and each seeks review of the judgment affirming his conviction upon the sole ground that the order to report for induction was invalid for failure of the local board to reopen his classification pursuant to a request for a conscientious objector classification, see Mulloy v. United States,398 U. S. 410, 398 U. S. 418 (1970).

In No. 72-1733, the petitioner Musser received an order to report for induction, issued by his local board on September 15, 1970. On September 21, 1970, he requested

Page 414 U. S. 32

and received Selective Service System Form 150, a special form for those seeking conscientious objector classification. Musser filled out the form, indicating in response to the questions posed that he was conscientiously opposed to participation in war in any form by reason of his religious training and belief, and claiming exemption from combatant and noncombatant training and service pursuant to 50 U.S.C.App. § 456(j). On September 29, 1970, the local board reviewed Musser's application. The minutes of that meeting indicate that, in the opinion of the members of the board, his claim "lack[ed] sincerity," and that he "[had to] report for induction." On the same day, he was sent a form letter stating that his application had been received and reviewed, that he was

"hereby advised [that the board] did not specifically find there has been a change in status resulting from circumstances over which you had no control,"

and that, pursuant to Selective Service Regulation 1625.2, 32 CFR § 1625.2, [Footnote 1] his classification would therefore not be reopened. [Footnote 2]

Page 414 U. S. 33

Musser was subsequently advised by the board of his continuing duty to report, and was, in fact, ordered to report for induction on January 19, 1971. On that date, he appeared at the induction center, but refused to submit to induction. For this refusal he was convicted in a jury-waived trial and sentenced to two years' imprisonment. The Court of Appeals affirmed, 478 F.2d 1068 (CA9 1973). In No. 72-6748, the petitioner Waldron was, on December 30, 1968, mailed an order to report for induction on February 5, 1969. Shortly thereafter, he requested, received, and completed an SSS Form 150, indicating his opposition to war in any form, and requesting a conscientious objector classification. On January 24, 1969, the board notified him that it had reviewed his application but "found no grounds for reopening your classification." Subsequently, on January 28, 1969, the State Director of Selective Service reviewed Waldron's file and recommended to the local board that his induction be postponed pursuant to Regulation 1632.2, 32 CFR. § 1632.2, and that he be given a "courtesy interview" pursuant to then-current Local Board Memorandum 41. Waldron was thereupon sent a letter indicating that his induction was being postponed until February 19, 1969, and that he would be granted an interview on February 5, 1969. On February 6, following the interview, he was notified that the board found "no grounds for reopening your classification after you[r] being interviewed," and that he had to report for induction on February 19. He arranged further to postpone the date of his induction

Page 414 U. S. 34

until March 27, 1969, in order to be able to report for induction in another city where he was then living, and on that date he refused to submit to induction. He was thereafter tried and convicted of refusing to submit to a valid order to report for induction, and the Court of Appeals affirmed, 474 F.2d 90 (CA7 1973).

In Ehlert v. United States,402 U. S. 99 (1971), this Court reviewed a claim that a local Selective Service board, operating under laws and regulations substantially the same as those involved here, must reopen a registrant's classification following a claim for conscientious objector status made after issuance of an order to report for induction and based on an assertion that the registrant's conscientious objection to war in any form had "crystallized" after the issuance of the order to report. The Court reasoned that

"[a] regulation explicitly providing that no conscientious objector claim could be considered by a local board unless filed before the mailing of an induction notice would . . . be perfectly valid"

as a reasonable timeliness rule to insure that all possible claims be presented to and reviewed by the local board prior to its determination that a given registrant is subject to induction. Id. at 402 U. S. 101-102. The Court also concluded, however, that "those whose views are late in crystallizing" cannot

"be deprived of a full and fair opportunity to present the merits of their conscientious objector claims for consideration under the same substantive criteria"

that govern claims based on views crystallizing prior to issuance of induction notices. Id. at 402 U. S. 103. Such a full and fair opportunity, the Court found, existed in in-service Armed Services procedures for hearing and evaluating conscientious objector claims. Under such a system, the "intolerable" situation of a "no-man's land" in which post-notice claims for CO classification were not heard by the local boards because of their timeliness rules, and were not heard by the Army after induction

Page 414 U. S. 35

because of a finding that an inductee had waived his right to claim such classification, was avoided: claims crystallizing prior to issuance of an order to report must be directed to, and are to be reviewed by, local boards, while claims crystallizing thereafter are to be reviewed only by the Armed Forces after induction. Id. at 402 U. S. 104 n. 7.

Selective Service regulations, however, did not unambiguously create such a system, but left open the possibility that a classification be reopened after issuance of a notice to report if the local board "specifically finds there has been a change in the registrant's status resulting from circumstances over which the registrant had no control." 32 CFR § 1625.2. Prior to Ehlert, the courts of appeals had divided on the question of whether late crystallization of conscientious objector views qualified as such a change. 402 U.S. at 402 U. S. 101 n. 3. In Ehlert, we avoided the "theological" argument of whether, as a matter of law, a claim of late-crystallizing conscientious objection was a change over which "the registrant has no control." Rather, we held that, in view of consistent administrative interpretation by the Government that changes envisaged by Regulation 1625.2 were limited to "objectively identifiable" and "extraneous" circumstances, [Footnote 3] such an interpretation of the regulation would be adopted. Id. at 402 U. S. 105.

Finally, we considered in Ehlert whether "the conditions for the validity of such a rule . . . are met in practice." After reviewing Army regulations, Department of Defense Directives, and a letter from the General Counsel of the Department of the Army, we determined

Page 414 U. S. 36

that an inductee claiming late-crystallizing conscientious objector status would receive a full and fair opportunity to have his claim heard by Armed Forces personnel. Id. at 402 U. S. 106-107.

The petitioners in these cases make overlapping arguments in attempting to avoid the Ehlert precedent. First, relying on decisions and opinions of the First and Third Circuits, [Footnote 4] they contend that the refusals of the local boards to reopen their classifications could be read as a "denial" of those claims, and thus a bar to in-service review. In particular, they point to

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