The refusal of petitioner's local board to reopen his
classification and pass on his conscientious objector claim, made
after mailing of his induction notice but before induction, on the
basis of a Selective Service regulation that permitted
post-induction notice reopening only for a "change in the
registrant's status resulting from circumstances over which the
registrant had no control,"
held not unreasonable as a
limitation on the time within which a local board must act on such
a claim, in light of the Government's assurance that one whose
beliefs assertedly crystallize after mailing of an induction notice
will have full opportunity to obtain an in-service determination of
his claim without having to perform combatant training or service
pending such disposition. Pp.
402 U. S.
101-107. 422 F.2d 332, affirmed.
STEWART, J., delivered the opinion of the Court, in which
BURGER, C.J., and BLACK, HARLAN, WHITE, and BLACKMUN, JJ., joined.
DOUGLAS, J., filed a dissenting opinion,
post, p.
402 U. S. 108.
BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J.,
joined,
post, p.
402 U. S.
119.
Page 402 U. S. 100
MR. JUSTICE STEWART delivered the opinion of the Court.
The question in this case is whether a Selective Service local
board must reopen the classification of a registrant who claims
that his conscientious objection to war in any form crystallized
between the mailing of his notice to report for induction and his
scheduled induction date. The petitioner before us made no claim to
conscientious objector status until after he received his induction
notice. Before the induction date, he then wrote to his local board
and asked to be allowed to present his claim. He represented that
his views had matured only after the induction notice had made
immediate the prospect of military service. After Selective Service
proceedings not material here, the petitioner's local board
notified him that it had declined to reopen his classification
because the crystallization of his conscientious objection did not
constitute the "change in the registrant's status resulting from
circumstances over which the registrant had no control" required
for post-induction notice reopening under a Selective Service
regulation. [
Footnote 1] The
petitioner then refused to submit to induction, and a grand jury in
the United States District Court for the Northern District of
California indicted him for violation of the Military Selective
Service Act of 1967. [
Footnote
2]
Page 402 U. S. 101
The petitioner waived trial by jury, and the District Court,
holding that ripening of conscientious objector views could not be
a circumstance over which a registrant had no control, found the
petitioner guilty. The conviction was affirmed by the United States
Court of Appeals for the Ninth Circuit, sitting en banc, and we
granted certiorari, 397 U.S. 1074, to resolve a conflict among the
circuits over the interpretation of the governing Selective Service
regulation. [
Footnote 3]
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, we think, be perfectly valid,
provided that no inductee could be ordered to combatant training or
service before a prompt, fair, and proper in-service determination
of his claim. The Military Selective Service Act of 1967 confers on
the President authority "to prescribe the necessary rules and
regulations to carry out the provisions of this title. . . ." 50
U.S.C.App. § 460(b)(1). To read out of the authority delegated by
this section the power to make reasonable timeliness rules would
render it impossible to require the submission, before mailing
Page 402 U. S. 102
of an induction notice, of a claim matured before that time. The
System needs and has the power to make reasonable timeliness rules
for the presentation of claims to exemption from service. [
Footnote 4]
A regulation barring post-induction notice presentation of
conscientious objector claims, with the proviso mentioned, would be
entirely reasonable as a timeliness rule. Selective Service boards
must already handle pre-notice claims, and the military has
procedures for processing conscientious objector claims that mature
in the service. Allocation of the burden of handling claims that
first arise in the brief period between notice and induction seems
well within the discretion of those concerned with choosing the
most feasible means for operating the Selective Service and
military systems. Further, requiring in-service presentation of
post-notice claims would deprive no registrant of any legal right,
and would not leave a "no man's land" time period in which a claim
then arising could not be presented in any forum.
The only unconditional right conferred by statute upon
conscientious objectors is exemption from
combatant
training and service. [
Footnote
5] The Selective Service law, indeed, provides for noncombatant
training and service for those objectors to whose induction there
is no obstacle. [
Footnote
6]
Page 402 U. S. 103
The right to civilian service "in lieu of . . . induction"
arises only if a registrant's "claim is sustained by the local
board." It does not follow, given the power to make reasonable
timeliness rules, that a registrant has an unconditional right to
present his claim to the local board before induction, any more
than he has such a right after induction. Congress seems rather
carefully to have confined the unconditional right created by the
statute to immunity from combatant training and service.
Consequently, requiring those whose conscientious objection has not
crystallized until after their induction notices to present their
claims after induction would work no deprivation of statutory
rights, so long as the claimants were not subjected to combatant
training or service until their claims had been acted upon.
That those whose views are late in crystallizing can be required
to wait, however, does not mean they can 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 must guide the Selective Service System.
See
Welsh v. United States, 398 U. S. 333. The
very assertion of crystallization just before induction might cast
doubt upon the
Page 402 U. S. 104
genuineness of some claims, but there is no reason to suppose
that such claims could not be every bit as
bona fide and
substantial as the claims of those whose conscientious objection
ripens before notice or after induction. It would be wholly
arbitrary to deny the late crystallizer a full opportunity to
obtain a determination on the merits of his claim to exemption from
combatant training and service just because his conscientious
scruples took shape during a brief period in legal limbo. [
Footnote 7] A system in which such
persons could present their claims after induction, with the
assurance of no combatant training or service before opportunity
for a ruling on the merits, would be wholly consistent with the
conscientious objector statute. [
Footnote 8]
The regulation we must interpret in this case does not
unambiguously create such a system. Rather, it bars post-notice
reopening
"unless the local board first specifically finds there has been
a change in the registrant's status resulting from circumstances
over which the registrant had no control."
It is clear that the regulation was meant to cover at least such
nonvolitional changes as injury to the registrant or death in his
family making him the sole surviving son. The Government urges
that
Page 402 U. S. 105
the regulation be confined to just such "objectively
identifiable" and "extraneous" events and circumstances. The
petitioner contends that post-notice crystallization of
conscientious objection is both a "circumstance" within the meaning
of the regulation and one over which the registrant has no
control.
We need not take sides in the somewhat theological debates about
the nature of "control" over one's own conscience that the phrasing
of this regulation has forced upon so many federal courts. Rather,
since the meaning of the language is not free from doubt, we are
obligated to regard as controlling a reasonable, consistently
applied administrative interpretation if the Government's be such.
Immigration Service v. Stanisic, 395 U. S.
62,
395 U. S. 72;
Thorpe v. Housing Authority, 393 U.
S. 268,
393 U. S. 276;
Udall v. Tallman, 380 U. S. 1,
380 U. S. 16-17;
Bowles v. Seminole Rock & Sand Co., 325 U.
S. 410,
325 U. S.
413-414.
The Government argues for an interpretation identical in effect
with the unambiguous rule hypothecated above, which, we have said,
would clearly be a reasonable timeliness rule, consistent with the
conscientious objector statute. The Government's interpretation is
a plausible construction of the language of the actual regulation,
though admittedly not the only possible one. Given the ambiguity of
the language, it is wholly rational to confine it to those
"objectively identifiable" and "extraneous" circumstances that are
most likely to prove manageable without putting undue burdens on
the administration of the Selective Service System. It appears,
moreover, that this position has been consistently urged by the
Government in litigation when it was not foreclosed by adverse
local precedent.
There remains for consideration whether the conditions for the
validity of such a rule, discussed above, are met in practice. It
appears undisputed that, when an inductee
Page 402 U. S. 106
presents a
prima facie claim of conscientious objection
that complies with timeliness rules for in service cognizability,
he is given duty involving the minimum practicable conflict with
his asserted beliefs. [
Footnote
9] It is thus evident that armed forces policy substantially
meets the requirement of no combat training or service before an
opportunity for a ruling on the claim.
As for the absence of any no man's land, the pertinent military
regulations are somewhat inconsistent in their phrasing, perhaps
because of the sharp division among the courts of appeals. They
contain language appearing to recognize the obligation of the
service to hear the claims of those whose alleged conscientious
objection has crystallized between notice and induction, but they
also contain formulations seeming to look the other way. [
Footnote 10]
Page 402 U. S. 107
We are assured, however, by a letter included in the briefs in
this case from the General Counsel of the Department of the Army to
the Department of Justice, that present practice allows
presentation of such claims, and that there thus exists no
possibility that late crystallizers will find themselves without a
forum in which to press their claims. [
Footnote 11] Our conclusion in this case is based upon
that assurance. [
Footnote
12] For if, contrary to that assurance, a situation should
arise in which neither the local board nor the military had made
available a full opportunity to present a
prima facie
conscientious objection claim for determination under established
criteria,
see Welsh v. United States, supra, a wholly
different case would be presented.
Given the prevailing interpretation of the Army regulation, we
hold that the Court of Appeals did not misconstrue the Selective
Service regulation in holding that
Page 402 U. S. 108
it barred presentation to the local board of a claim that
allegedly arose between mailing of a notice of induction and the
scheduled induction date. Accordingly, the judgment of the Court of
Appeals for the Ninth Circuit is
Affirmed.
[
Footnote 1]
32 CFR § 1625.2 (1971) provides, in pertinent part:
"[T]he classification of a registrant shall not be reopened
after the local board has mailed to such registrant an Order to
Report for Induction . . . or an Order to Report for Civilian Work
and Statement of Employer . . . unless the local board first
specifically finds there has been a change in the registrant's
status resulting from circumstances over which the registrant had
no control."
[
Footnote 2]
Military Selective Service Act of 1967, § 12(a), 50 U.S.C.App. §
462(a) (1964 ed., Supp. V), provides in pertinent part:
"[A]ny person . . . who . . . refuses . . . service in the armed
force . . . or who in any manner shall knowingly fail or neglect or
refuse to perform any duty required of him under or in the
execution of this title . . . shall, upon conviction in any
district court of the United States of competent jurisdiction, be
punished by imprisonment for not more than five years or a fine of
not more than $10,000, or by both such fine and imprisonment. . .
."
[
Footnote 3]
In accord with the position of the Ninth Circuit,
see United
States v. Al-Majied Muhammad, 364 F.2d 223, 224 (CA4);
Davis v. United States, 374 F.2d 1, 4 (CA5);
United
States v. Taylor, 351 F.2d 228, 230 (CA6)
(
semble).
Contra, United States v. Gearey, 368 F.2d 144, 150
(CA2), 379 F.2d 915 (after remand),
cert. denied, 389 U.S.
959;
Scott v. Commanding Officer, 431 F.2d 1132, 1136
(CA3);
United States v. Nordlof, 440 F.2d 840 (CA7);
Keene v. United States, 266 F.2d 378, 384 (CA10);
Swift v. Director of Selective Service, ___ U.S.App.D.C.
___, 448 F.2d 1147.
See also United States v. Stoppelman,
406 F.2d 127, 131 n. 7 (CA1) (dictum),
cert. denied, 395
U.S. 981.
[
Footnote 4]
The power of the Selective Service System to set reasonable time
limits for presentation of claims, with the penalty of forfeiture
for noncompliance, seems never to have been questioned by any
court.
See, e.g., United States v. Gearey, 368 F.2d 144,
149 and n. 9 (CA2).
[
Footnote 5]
The statute on conscientious objection begins:
"Nothing contained in this title . . . shall be construed to
require any person to be subject to combatant training and service
in the armed forces of the United States who, by reason of
religious training and belief, is conscientiously opposed to
participation in war in any form."
Military Selective Service Act of 1967, § 6(j), 81 Stat. 104, 50
U.S.C.App. § 456(j) (1964 ed., Supp. V).
[
Footnote 6]
Ibid.:
"Any person claiming exemption from combatant training and
service because of such conscientious objections whose claim is
sustained by the local board shall, if he is inducted into the
armed forces under this title . . . be assigned to noncombatant
service a defined by the President, or shall, if he is found to be
conscientiously opposed to participation in such noncombatant
service, in lieu of such induction, be ordered by his local board,
subject to such regulations as the President may prescribe, to
perform for a period equal to the period prescribed in [Military
Selective Service Act of 1967, § 4(b), 50 U.S.C.App. § 454(b)] such
civilian work contributing to the maintenance of the national
health, safety, or interest as the local board pursuant to
Presidential regulations may deem appropriate. . . ."
[
Footnote 7]
Since such a "no man's land" would be intolerable, our decision
today simply involves settling in which forum late crystallizers
must have an opportunity for a ruling on the merits. Whether they
must have such an opportunity at all cannot be open to question. Of
course, a claimant who, after induction, declined to utilize
available administrative procedures or who failed to observe
reasonable and properly publicized time cutoffs might forfeit his
claim.
[
Footnote 8]
There is no reason to suppose that a Selective Service local
board, faced with the need to fill its monthly quotas, would be
more sensitive in applying the legal standards that govern all
conscientious objector claims than would the Army, whose mission is
to train inductees as members of military units of maximum
effectiveness and morale.
[
Footnote 9]
Department of Defense Directive No. 1300.6, § VI B (May 10,
1968):
"With respect to persons who have already served a portion of
their obligated service who request discharge or non-combatant
service for conscientious objection, the following actions will be
taken:"
"
* * * *"
"2. Pending decision on the case and to the extent practicable
the person will be employed in duties which involve the minimum
conflict with his asserted beliefs. . . ."
Army Regulation No. 6320, � 6
a (July 31, 1970):
"[I]ndividuals who have submitted formal applications . . . for
discharge based on conscientious objection will be retained in
their units and assigned duties providing the minimum practicable
conflict with their asserted beliefs pending a final decision on
their applications. In the case of trainees, this means that they
will not be required to train in the study, use, or handling of
arms or weapons. . . ."
[
Footnote 10]
See Army Regulation No. 6320, 3:
"
a. Consideration will be given to requests for
separation based on bona fide conscientious objection to
participation in war, in any form, when such objection develops
subsequent to entry into the military service."
"
b. Federal courts have held that a claim to exemption
from military service under Selective Service laws must be
interposed prior to notice of induction, and failure to make timely
claim for exemption constitutes waiver of the right to claim. . . .
Requests for discharge after entering military service will not be
favorably considered when -- "
"(1) Based on conscientious objection which existed, but which
was not claimed prior to notice of induction, enlistment or
appointment."
See also Department of Defense Directive No. 1300.6, §
IV B 2.
[
Footnote 11]
"You also asked whether the Army allows a soldier to file for
discharge in instances where his conscientious objector views are
fixed after notice of induction but prior to entry into the
military service. Present practice grants the soldier the
opportunity to file in such cases."
The letter additionally explains the composition and operation
of the Army I-O Conscientious Objector Review Board, which has the
responsibility of ruling on applications for conscientious objector
discharges. The Board is composed of a senior officer, an officer
in the Judge Advocate General Corps, a chaplain, and a Medical
Corps officer. Only two votes are required to approve an
application.
[
Footnote 12]
The same letter from the General Counsel of the Department of
the Army reports that the identical interpretation prevailed in
1965, when the petitioner first was ordered to report for
induction.
MR. JUSTICE DOUGLAS, dissenting.
The rather stuffy judicial notion that an inductee's realization
that he has a "conscientious" objection to war is not a
circumstance over which he has "no control" within the meaning of
the Regulation [
Footnote 2/1] is
belied by experience. Saul of Tarsus would be a good witness:
[
Footnote 2/2]
"Now as he journeyed he approached Damascus, and suddenly a
light from heaven flashed about him. And he fell to the ground and
heard a voice saying to him, 'Saul, Saul, why do you persecute me?'
And he said, 'Who are you, Lord?' And he said, 'I am Jesus, whom
you are persecuting; but rise and enter the city, and you will be
told what you are to do.'"
The stories of sudden conversion are legion in religious
history, and there is no reason why the Selective Service boards
should not recognize them, deal with them, and, if sincere, act on
them even though they come after notice of induction has been
received.
The Court holds that the proper remedy is in-service processing
of these claims. That is to say, the claims that come so late, even
though they come prior to induction, are to be processed by
military, rather than by civilian, personnel.
This conclusion is not required by the Regulation, for, as I
have said, sudden conversion is a commonplace in religious
experiences. And we deal here with religious,
Page 402 U. S. 109
ethical, philosophical attitudes that are commonly summarized in
capsule form by reference to "conscience."
It is therefore a
tour de force for the Court to say
that in-service processing by the military is required. Certainly
that result is not mandated by the Act. [
Footnote 2/3] Since it is not, we have a choice in
construction which really involves a choice of policy. Faced with
that choice, we should not hesitate to leave these matters to
civilian authorities.
Chief Justice Stone, before coming to this Bench, served with
two other lawyers named by President Wilson to screen conscientious
objectors in World War I. One of the three was in the military, the
other two were civilians. In the account he wrote, he said:
[
Footnote 2/4]
"[I]t was the relatively small residue of nonreligious objectors
who brought to the Board its real perplexities. While conscience is
commonly associated with religious convictions, all experience
teaches us that the supreme moral imperative which sometimes
actuates men to choose one course of action in preference to
another and to adhere to it at all costs may be dissociated from
what is commonly recognized as religious experience. The
President's order expressly recognized that scruples against
participating in war might be conscientious although not religious.
How to detect the presence
Page 402 U. S. 110
of such scruples and to distinguish them from the mere extremist
support of more or less novel social or political theories and from
mere individualistic resistance to the will of the majority, such
as one sometimes sees in the petulant disobedience of an
ill-disciplined child, was the difficult task."
The mind of the military has reacted more violently to the
conscientious objector than the mind of the priest or other
civilian.
The story of in-service processing of these claims in World War
I is an unpleasant one:
"The phrase 'well-recognized religious sect' was given the most
rigorous interpretation, and any who based conscientious objections
on political, rather than religious, foundations got short shrift.
Such objectors were either 'shot to death by musketry,' 'imprisoned
for long terms by court martial,' or subjected to indignities and
physical violence 'by their more patriotic fellows.' [
Footnote 2/5]"
Another account [
Footnote 2/6]
is substantially the same:
"In military camp and prison alike, objectors were often
subjected to indignities and to physical cruelty. Some were beaten;
others were hung by their fingers to the doors of their cells in
such a way that their feet barely touched the floor. In one case,
an objector who refused to don the army uniform was kept in a damp
cell, where he contracted pneumonia and died. His dead body was
then dressed in the uniform that in life he had spurned, and, thus
attired, was sent home to his family. A number of objectors among
the absolutists went on hunger strikes and had to be fed forcibly.
"
Page 402 U. S. 111
According to the accounts, the treatment of conscientious
objectors in World War II was not as severe as in World War I. But
the main disciplinary device was to give the man an order and then
court-martial him for failure to obey the order.
"Here, punishment varied, but common sentences for objectors
were five to ten years, although these were not infrequently
reduced on review by Washington. Sentences on the whole were much
lighter than those imposed by courts-martial during the First World
War but more severe, on the average, than those meted out by
civil courts during the Second World War. Sentences of
general
courts-martial were served in the several
disciplinary barracks of the Army, but, in some instances,
objectors were first sent to a 'rehabilitation center,' where the
Army gave prisoners a second chance to 'reform;' if 'reformation'
did not take place, they served out their sentences in the
disciplinary barracks. Army regulations provided for periodic and
automatic clemency reviews, the first during the initial six months
of the sentence and subsequent reviews once each year. [
Footnote 2/7]"
(Emphasis added.)
I have placed in the
402 U.S.
99app|>Appendix to this dissent a summary of a recent (1969)
record in one military center, showing how one conscientious
objector in
Jones v. Lemond, 396 U.
S. 1227, was treated.
I do not suggest that every detention center in the Armed
Services is like the brig on Treasure Island, San Francisco Bay.
Nor do I suggest that every conscientious objector is treated as
cruelly as was the plaintiff in the
Lemond case. I do
suggest, however, that, in my time, every conscientious objector
was "fair game" to most top sergeants who considered that he had a
"yellow streak" and therefore was a coward or was un-American. The
conscientious objector never had an easy time asserting First
Amendment rights in the Armed Services.
Page 402 U. S. 112
What might happen to him in the barracks or in the detention
center is, of course, not the measure of what would transpire at
the hearings. But the military mind is educated in other values; it
does not reflect the humanistic, philosophical values most germane
to ferreting out First Amendment claims that are genuine.
Our decisions on conscientious objection leave considerable
latitude for administrative findings. On one hand,
Gillette v.
United States and
Negre v. Larsen, 401 U.
S. 437, make it clear that objection to a particular war
will not qualify for conscientious objector status. On the other
hand, both
United States v. Seeger, 380 U.
S. 163, and
Welsh v. United States,
398 U. S. 333,
demonstrate that the objector need not be religious, and his views
may be based on broad humanistic grounds. There are subtleties in
these positions, for, as noted,
"§ 6(j)'s exclusion of those persons with 'essentially
political, sociological, or philosophical views or a merely
personal moral code' should [not] be read to exclude those who hold
strong beliefs about our domestic and foreign affairs or
even
those whose conscientious objection to participation in all wars is
founded to a substantial extent upon considerations of public
policy."
398 U.S. at
398 U. S. 342
(opinion of BLACK, J.) (emphasis added).
Thus, under the Court's interpretations of § 6(j), those who do
not qualify are those who lack sincerity, do not oppose all wars,
or those who rest their beliefs "solely upon considerations of
policy, pragmatism, or expediency."
Id. at
389 U. S.
342-343. Decision as to whether an individual is
entitled to a conscientious objector status under these broad
criteria requires great sensitivity on the part of those who have
the final say.
Ehlert's claim itself falls somewhere between
Gillette
and
Welsh. In addition, it raises claims between
pragmatism and a respect for human life and values. His beliefs are
not religious in nature. He stated they came
Page 402 U. S. 113
from
"the intellectual atmosphere of the University of California and
its surroundings and the natural workings of an eager-to-know and
questioning mind."
In a letter refusing induction, he stated his objection was
"that the sole purpose of military service in this country today
is preparation for a nuclear orgasm which would be totally
destructive of human life and values."
On his Form 150, he wrote
"that service in the armed forces of this country at this time
is work toward the end of the destruction of the human race. I
consider that my duty not to work for the destruction of the human
race is superior to any duties which may arise from any human
relation."
He added he would use force where its use "would not make more
probable the destruction of the human race."
While it appears that Ehlert's claim may be sufficiently close
to
Gillette to foreclose his claim, other claims in this
sensitive area may not be as close to
Gillette, yet also
may be beyond
Welsh. In a choice between civilian and
military factfinders dealing in an area of conscience, clearly the
former are to be preferred.
Moreover, proof of a conscientious objector's claim will usually
be much more difficult after induction than before. Military
exigencies may take him far from his neighborhood, the only place
where he can find the friends and associates who know him. His
chances of having a fair hearing are therefore lessened when the
hearing on his claim is relegated to in service procedures. For
these reasons, I would resolve any ambiguities in the law in favor
of pre-induction review of his claim, and not relegate him to the
regime where military philosophy, rather than the First Amendment,
is supreme.
Beyond all these arguments is a constitutional one. Induction
itself may violate the privileges of conscience engrained in the
First Amendment. A compelled act was the heart of the case
presented by
Board of Education v. Barnette, 319 U.
S. 624, when children of Jehovah's
Page 402 U. S. 114
Witnesses protested the requirement that they salute the flag.
We said:
"Struggles to coerce uniformity of sentiment in support of some
end thought essential to their time and country have been waged by
many good, as well as by evil, men. Nationalism is a relatively
recent phenomenon, but, at other times and places, the ends have
been racial or territorial security, support of a dynasty or
regime, and particular plans for saving souls. As first and
moderate methods to attain unity have failed, those bent on its
accomplishment must resort to an ever-increasing severity. As
governmental pressure toward unity becomes greater, so strife
becomes more bitter as to whose unity it shall be. Probably no
deeper division of our people could proceed from any provocation
than from finding it necessary to choose what doctrine and whose
program public educational officials shall compel youth to unite in
embracing. Ultimate futility of such attempts to compel coherence
is the lesson of every such effort. . . . Those who begin coercive
elimination of dissent soon find themselves exterminating
dissenters. Compulsory unification of opinion achieves only the
unanimity of the graveyard."
"It seems trite but necessary to say that the First Amendment to
our Constitution was designed to avoid these ends by avoiding these
beginnings."
Id. at
319 U. S.
640-641.
To some conscientious objectors, taking the one step forward is
an act violating the conscience, since wearing the uniform in any
form is as revolting to them as saluting the flag was to the
children in the
Barnette case. [
Footnote 2/8] To another conscientious, objector the
bearing of arms, not acting as orderlies, say, in military
hospitals, is the
Page 402 U. S. 115
act at which he rebels. The sorting and sifting of these claims
and all varieties of them are best processed by civilians, rather
than the military. The present Regulations permit it, and I would
resolve any ambiguities in favor of the procedure most protective
of the rights of conscience involved here.
I therefore dissent from affirmance of the judgment below.
|
402 U.S.
99app|
APPENDIX TO OPINION OF DOUGLAS, J., DISSENTING
On September 15, 1969, I entered a stay in the case of
Jones
v. Lemond, 396 U. S. 1227.
Jones was in the United States Navy, and his claim to discharge as
a conscientious objector arose five months after his enlistment.
According to the allegation, he had made many attempts over a
period of some 37 days to file an application to be discharged as a
conscientious objector. He was unable to make a filing or obtain a
hearing. He went AWOL on that account, and later surrendered
himself, and, with the help of legal advice, pressed for processing
of his conscientious objector claim.
I did not reach the merits of that controversy, but, in view of
the representations made, I restrained the Navy from confining
Jones in the brig at Treasure Island, which, according to the
affidavits presented to me, had become a house of horror.
"After sitting in the room approximately 45 minutes, I heard Mr.
Foreman say, 'He is an escape risk, and is to be sentenced for 5
months -- he is not to be allowed to phone anyone.' Immediately
after I heard Mr. Foreman speak, a Marine Sergeant opened the door
and said to me 'empty your pockets, f---er.' I began to empty my
pockets to which the Sergeant said, 'hurry up, Goddamnit.' When I
had finished emptying my pockets,
Page 402 U. S. 116
the Sergeant said, 'up against the wall -- spread your arms and
legs.' I spread my arms out against the wall and placed my feet
approximately 3 1/2 feet apart. The Sergeant kicked my legs several
times and said, 'Move them further.' I then stretched them as far
as possible, so the Sergeant kicked me a couple of more times to
make sure they were spread as far as possible. He then frisked me,
which involved slapping and shoving me against the wall. When he
finished his so-called frisk, he handcuffed my hands behind me and
said, 'Alright, let's go -- one f--k-up and I'll bust your f--kin
head open.'"
"I was then taken to the Brig and told to stand in front of the
fence with my nose on the canvas. I stood at attention with my nose
on the canvas and the Sergeant went into the main control
room."
"About 5 minutes later, the Sergeant came out with another
Sergeant. The Sergeant said 'empty your pockets.' I took out a pen
and chow pass and offered them to the second Sergeant. He said,
'don't point at me f--ker, put that s--t in your hat.' I emptied my
pockets and put everything into my hat. The Sergeant said, 'put it
on the ground.' The Sergeant said to the other Sergeant, 'he's
still pretty salty -- I got him when I picked him up, but he still
thinks he's tough.' The reply was, 'don't worry, he won't be so
tough, I know what to do with him.' He said,'spread your arms and
legs turd.' I spread out against the canvas. He started kicking me
and yelling, 'spread out a--hole.' He kept kicking me and yelling
until I fell down and then said, 'what's wrong with you, pussy,
can't you stand up -- get up.' I stood up and he said 'spread out
Goddamnit.' He started kicking me again. When I fell to my knees
against the canvas, he stopped and said, 'can't you stand up,
squid?' This time I got up and spread out hands on the canvas
before he could say so. He then pushed my face into the canvas,
slapped my neck and arms,
Page 402 U. S. 117
punched me in the sides, yanked the crotch of my dungarees
painfully between my legs, slapped and pinched my legs and said,
'alright now stand at attention.' He had now finished frisking me
so they both went back into the control room taking with them the
contents of my pockets in my hat."
"After much verbal harassment, I was taken to my cell."
"A couple of hours later, I heard the orange badges march in.
They live in the Annex in 6' x 6' x 8' cells, 3 men per cell. I
heard a Corporal yelling at an orange badge for not running fast
enough during the physical exercise period. He then made the orange
badge do push-ups until he collapsed. Then I could hear the
Corporal hitting the man and the man crying and screaming for him
to stop. When the Corporal stopped they took the man back out into
the compound to run and that was the last I heard of him."
"Dinner was brought to my cell and I ate it on the floor as I
did with all the rest of my meals."
"Early in the evening, a Corporal started harassing a confinee
who was locked in the suicide risk cell. Suicide risks have to sit
in the cells, which I found to be very cold with my clothes on, in
nothing but a pair of underwear. The Corporal kept antagonizing the
man until he started screaming and crying. Once the Corporal
succeeded in breaking the confinee, he started laughing, at which
time the other Corporal said, 'why don't you kick his ass for
making so much noise?'"
"The next day I was taken for a haircut. Another confinee cut my
hair, and while doing so he dropped a clip, but couldn't find it. I
told him where it was and he said, 'don't let them catch you
talking to me, they'll kick your ass.' I kept quiet."
"After much more harassment, I went back to my cell and I heard
a man coughing and then a Corporal yelling at him to shut up. Two
other Corporals joined in harassing the man and when he couldn't
stop coughing
Page 402 U. S. 118
they pulled him out of the cell and made him dive on a cup on
the floor pretending it was a grenade. They got several other men
out of their cells and had them all diving on the cup with the
coughing man on the bottom each time."
"It wasn't long after the grenade drills when the turnkey came
to my cell and let me out. He had me fold up my blanket and pick up
my locker and pulled me out to the control office. In the office,
there were 4 or 5 Sergeants and a Staff Sergeant yelling and
screaming all types of phrases, such as, 'you'll be back, f--ker
and then you'll really get it.' I now was told to stand holding my
footlocker with my arms extended and they seemed to forget me for a
moment."
"Then they began talking among themselves and I realized that my
lawyer, Don Jelinek and Loren Basham, a member of the Resistance,
were outside the Brig in a car and they apparently insisted on
remaining there until I was released. The Sergeant said "This guy
(Jelinek) just pissed me off because he just charged in here and
slapped this order down and said
get this man out.'" Then the
Sergeant said, "I have a psychiatrist over here (pointing to the
medical building right behind us), who will back me up saying I am
not responsible for anything I do." He then added, "In a minute, I
am going to go out and blow their heads off.""
"Then the Sergeant seemed to gain control of himself. The MP
then turned to me and said, 'Just try and run boy, I would love to
blow your head right off.'"
"I was then allowed outside the Brig where I saw my Lawyer who
spoke to me, but I was afraid to answer him for the fear they would
beat or shoot us."
"I know they worked me over because of anger because the
Military Court of Appeals gave me an order keeping me out of the
Brig. Now that a second Court Order has gotten me out of the Brig,
I feel they will kill me if I have to go back in again. "
Page 402 U. S. 119
[
Footnote 2/1]
32 CFR § 1625.2 (1971).
[
Footnote 2/2]
9 Acts 3 (rev. Standard ed.1952).
[
Footnote 2/3]
See § 6(j) of the Military Selective Service Act of
1967, 81 Stat. 104, 50 U.S.C.App. § 456(j) (1964 ed., Supp. V):
"Nothing contained in this title . . . shall be construed to
require any person to be subject to combatant training and service
in the armed forces of the United States who, by reason of
religious training and belief, is conscientiously opposed to
participation in war in any form. As used in this subsection, the
term 'religious training and belief' does not include essentially
political, sociological, or philosophical views, or a merely
personal moral code."
[
Footnote 2/4]
Stone, The Conscientious Objector, 21 Col.U.Q. 253, 263
(1919).
[
Footnote 2/5]
A. Mason, Harlan Fiske Stone: Pillar of the Law 102 (1956).
[
Footnote 2/6]
M. Sibley & P. Jacob, Conscription of Conscience 15
(1952).
[
Footnote 2/7]
Id. at 108.
[
Footnote 2/8]
See United States v. Freeman, 38 F.2d 246, 248-249.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL joins,
dissenting.
Selective Service Regulation 1625.2, 32 CFR § 1625.2 (1971),
relieves a local board of its general obligation to consider a
registrant's claim for deferment whenever the claim is received
after the notice to report for induction has been mailed
"unless the local board first specifically finds there has been
a change in the registrant's status resulting from circumstances
over which the registrant had no control."
The Court of Appeals held that this regulation relieved the
local board of the necessity of considering any claim that a
registrant's conscientious objection to war had crystallized after
receipt of an induction notice because, in the court's view,
registrants have control over such changes in their beliefs. 422
F.2d 332 (CA9 1970). The Court here finds it unnecessary to come to
grips with this holding and consider whether a conscientious
objection claim comes within the terms of this regulation, since it
finds the interpretation of the regulation controlled by "a
reasonable, consistently applied administrative interpretation."
Ante at
402 U. S.
105.
I cannot defer to an interpretation I cannot discover. All of
the cases cited by the Court make clear that judicial
interpretation of an ambiguous regulation is to be informed by
reference to administrative practice in interpreting and applying a
regulation, not by reference to positions taken for the purpose of
litigation.
See cases cited
ante at
402 U. S. 105.
Cf. Citizens to Preserve Overton Park v. Volpe,
401 U. S. 402,
401 U. S. 419
(1971). The national Selective Service office has apparently made
no national administrative interpretation of the regulation. The
only other information presently before us indicates that state
Selective Service headquarters in North Carolina and California
have interpreted the regulation to require local boards to consider
"late crystallization" claims and
Page 402 U. S. 120
to consider whether the registrant's conscientious objection was
a change occurring after receipt of his induction notice over which
he had no control. Brief for Petitioner 28 n. 53. If anything, this
suggests that petitioner's interpretation should prevail. On this
state of the record, however, I hardly think administrative
practice can properly form the basis of decision.
Moreover, I do not find the regulation to be ambiguous. In the
context of a blanket Selective Service regulation applicable to all
claims for deferment and exemption, the reference to
"circumstances" must be taken to refer to any conditions relevant
to eligibility for a deferment or exemption. Since conscientious
objection to war is the basis for a deferment, it must constitute a
"circumstance" within the plain meaning of the regulation. The
question, therefore, is whether that circumstance can be one "over
which the registrant had no control." On that score, I fully agree
with the dissent of Judge Merrill below:
"One simply cannot order his conscience to be still or make
himself believe what he does not believe, and I must reject the
implication that it is right and proper that one should suffer loss
of status for having failed to bring his conscience to heel."
"Conscientious objection, in truth, is a contradiction of
control. Just as a conviction honestly dictated by conscience
cannot be banished at the will of the holder, so, conversely, a
belief conveniently subject to the control of the holder is not
conscientiously entertained."
422 F.2d at 339.
In sum, I think the regulation means that late crystallization
claims asserted prior to induction should be processed by civilian
personnel of the local boards, who have been designated by the
Congress as the appropriate decisionmakers in these cases, rather
than by military personnel during in service processing. I
dissent.