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 � 3.b(2) of Army
Regulation 6320, not cited or discussed in the
Ehlert
opinion, which states that, in-service claims for conscientious
objector treatment will not be favorably considered when "[b]ased
solely on conscientious objection claimed
and denied by
the Selective Service System prior to induction." (Emphasis added.)
In the language of the First Circuit,
"if the Army could have read the draft board's reasonless
refusal to reopen as a 'denial,' then [a registrant] might well
have been placed in a mutual buck-passing situation where neither
the draft board nor the Army would consider his claim on the
merits."
United States v. Alioto, 469 F.2d 722, 727 (1972).
Ehlert, the petitioners claim, did not deal with this
problem, because the board in that case had explicitly stated that
it was not denying Ehlert's claim on the merits, but was refusing
to reach those merits, since no showing had been made of a
"
change in the registrant's status resulting from circumstances
over which the registrant had no control.'" 402 U.S. at
402 U. S. 100.
Thus, they argue, the
Page 414 U. S.
37
ambiguity of the board's refusal to reopen, taken together
with current Army regulations, raises the specter of the kind of
no-man's land specifically found intolerable in
Ehlert.
The petitioners misconstrue the reasoning and effect of our
holding in
Ehlert. In adopting the Government's
interpretation of Regulation 1625.2 that a late crystallization was
not a circumstance over which a registrant "had no control," the
Court did not hold merely that a local board would be permitted to
refuse reopening of a classification in such a situation, [
Footnote 5] but that it was without
power to reopen under such circumstances. The mandatory language of
Regulation 1625.2, that classification "shall not be reopened"
unless the proviso is met, requires no less. If a local board is
not empowered to reopen the classification, it follows that it is
similarly without power to make any ruling on the merits of a
registrant's claims, since such a ruling on the merits of a claim
can be made only by a reopening, with concomitant rights in the
registrant to a personal appearance and an administrative appeal of
an adverse decision,
see n 2,
supra. From this it follows that in no event
can a mere refusal to reopen signify more than a recognition of
lack of power to do so; it cannot and does not bear any
significance as to the merits of a registrant's claim.
The petitioners further argue that, while each board's action in
these cases took the form of a refusal to reopen, the decision not
to do so was, in fact, based on the board's consideration of the
merits, and could be viewed
Page 414 U. S. 38
as such by the Armed Forces. [
Footnote 6] The simple answer to this contention is that
no matter what the boards' apparent motivations in refusing to
reopen the petitioners' classifications may have been, the boards
were simply without power to reopen, and an expressed or
unexpressed indication of the boards' views of the claims cannot be
deemed a denial of those claims on the merits.
As in
Ehlert, we turn finally to a consideration of
whether "the conditions for the validity of such a rule . . . are
met in practice." Army Regulation 6320, � 3.b(2),
supra,
bars in service review of a request for conscientious
Page 414 U. S. 39
objector status if such a request has been "claimed and denied
by the Selective Service System prior to induction." While the
critical word "denied" might arguably be applied to a board's
refusal to reopen a classification, it cannot be so applied to a
refusal to reopen a classification based on a claim of
conscientious objection crystallizing after issuance of a notice to
report, now that
Ehlert has made clear that such a refusal
can only be based on the board's lack of power to reopen in such a
posture. We note that, in a letter written by the General Counsel
for the Department of the Army with respect to the then-pending
case of
United States v. Shomock and printed in the
opinion of that case, 462 F.2d 338, 345 n. 17 (CA3 1972), the
General Counsel indicated that, when a refusal to reopen is not
based on a decision on the merits, a registrant may raise such a
claim in the Army and will be given a full and fair hearing.
[
Footnote 7] In the event that
a local board, in one way or another, manifests
Page 414 U. S. 40
its views as to the sincerity of a registrant's
late-crystallizing claims, as in the case of the petitioner Musser,
or expresses any other conclusion concerning the merits of his
claims, such expressions must be given no effect by the Armed
Forces in reviewing an in service conscientious objector
request.
It follows that the Courts of Appeals in these cases correctly
ruled that the petitioners' orders to report for induction were
valid. The motion of the petitioner Waldron for leave to proceed
in forma pauperis and the petitions for certiorari are
granted, and the judgments are
Affirmed.
MR JUSTICE BRENNAN and MR. JUSTICE MARSHALL would grant these
petitions and set these cases for oral argument.
* Together with No. 72-6748,
Waldron v. United States,
on petition for writ of certiorari to the United States Court of
Appeals for the Seventh Circuit.
[
Footnote 1]
At the time the administrative decisions involved in these cases
were made, Regulation 1625.2 read in pertinent part as follows:
"The local board may reopen and consider anew the classification
of a registrant . . . 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 . . . the classification of a
registrant shall not be reopened after the local board has mailed
to such registrant an Order to Report for Induction (SSS Form No.
252) or an Order to Report for Civilian Work and Statement of
Employer (SSS Form No. 153) 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]
As used in the Selective Service Regulations and in this
opinion, the term "reopen" signifies a fresh determination by the
local board of the classification to which a registrant belongs.
See Regulation 1625.11, 32 CFR § 1625.11. When a case is
reopened by a local board, the registrant is automatically accorded
the right to a personal appearance before the local board and an
administrative appeal of any adverse decision by the board,
Regulation 1625.13, 32 CFR § 1625.13, even though a registrant is
"reclassified" in the same classification as that in which he had
formerly been put.
Mulloy v. United States, 398 U.
S. 410,
398 U. S.
414-415 (1970).
[
Footnote 3]
As examples of the sort of nonvolitional changes that Regulation
1625.2 was intended to allow, the Government has consistently
cited, and the Court in
Ehlert mentioned, an injury to the
registrant or death in his family making him the sole surviving
son. 402 U.S. at
402 U. S.
104.
[
Footnote 4]
United States v. Alioto, 469 F.2d 722 (CA1 1972);
United States v. Ziskowski, 465 F.2d 480 (CA3 1972);
United States v. Shomock, 462 F.2d 338 (CA3 1972).
See
also United States v. Cotton, 346 F.
Supp. 691 (SDNY 1972);
United States v. Usdin, 6
S.S.L.R.3039 (EDNY 1972).
[
Footnote 5]
Although the language of Regulation 1625.2 is permissive in
stating that a local board "may" reopen if the prerequisites are
met, in
Mulloy v. United States, supra, we held that a
board must reopen a classification if a
prima facie case
for a new classification has been made to the board and the
timeliness requirements are met. 398 U.S. at
398 U. S.
415-416.
[
Footnote 6]
The petitioners in both of the present cases, relying primarily
on
Miller v. United States, 388 F.2d 973 (CA9 1967),
contend that, by considering the merits of the claims for
conscientious objector status, the boards effected a "
de
facto reopening" which was merely clothed as a denial of
reopening. In
Miller and in the subsequent case of
United States v. Aufdenspring, 439 F.2d 388 (CA9 1971),
the State Director, acting under since-rescinded Regulation 1625.3,
independently ordered a reopening of the registrants' cases, thus
circumventing the timeliness proviso contained in Regulation 1625.2
with respect to requests for reopening by registrants. The courts
in those cases held that the local boards' refusals to reopen were
procedurally impermissible, since, in each case, the refusal was
based on a review of the substance of the registrant's claim, and
thus was, in fact, a refusal to reclassify without the procedural
advantages to the registrant inherent in a reclassification,
see n 2,
supra.
Those decisions were correctly distinguished by the Courts of
Appeals in the present cases. Petitioner Musser's claim for a
reopening and reclassification was based solely upon his own
request, and thus the timeliness proviso of Regulation 1625.2 fully
applied. In Waldron's case, the State Director recommended
postponement and an interview in accordance with Local Board
Memorandum 41. But the court found that this postponement was
effected under the Director's authority given by Regulation 1632.2
to postpone any induction, rather than in the exercise of his
authority under Regulation 1625.3 to cause a reopening; further,
the court noted that the Director's suggestion of an interview
could not, in any event, trigger a reopening under Regulation
1625.3, since the communication was not in writing, as that
Regulation specifically required.
[
Footnote 7]
The pertinent part of the General Counsel's letter is as
follows:
"If the appellant had entered the Army in May, 1969, under
circumstances where the Selective Service System actually
considered and denied his conscientious objector claim on the
merits, he would not have been entitled to an in-service
determination on the merits of his conscientious objector
claim."
"If the appellant had entered the Army in May, 1969, under
circumstances where his local draft board
merely refused to
reopen his classification because his asserted views crystallized
subsequent to the receipt of his induction notice, in the view
of the Department of the Army personnel responsible for
administering the conscientious objector claims of in-service
members, he would have been entitled under Army policy to an
in-service determination on the merits of his conscientious
objector claim."
462 F.2d at 345. (Emphasis added.) Although the letter
interpreted and reported policies in effect at the time of
Shomock's ordered induction, there appears to have been no
significant change of policy at the time of the ordered inductions
in these cases.
MR. JUSTICE DOUGLAS, dissenting.
In
Ehlert v. United States, 402 U. S.
99 (1971), the Court decided that the Selective Service
System may place special hurdles on conscientious objector claims
first raised after a notice of induction has been issued. In
allowing the Selective Service to set what it termed reasonable
"timeliness" regulations, the Court assumed that the conscientious
objector claims not considered by the local board would receive
full consideration by the military after induction.
Id. at
402 U. S.
107.
"[I]f . . . 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, . . . a wholly different
case would be presented."
Ibid. I dissented in
Ehlert, arguing that,
under the regulations of the Selective Service System, the local
boards should consider the claim as arising from a circumstance
over which
Page 414 U. S. 41
the registrant has no control, and that civilian, rather than
military, adjudication of these claims should be preferred.
Id. at
402 U. S. 108.
But apart from my own views on that question, the decisions
affirmed in today's per curiam are highly questionable, since they
appear to be that "wholly different case."
Neither petitioner in these cases received a full administrative
review of the conscientious objector claims presented to his local
board. But in each case, the board purported to look into the
claim. In Musser's case, the board made an explicit finding that
his beliefs were not "sincere" -- a finding which one judge below
found to be without basis. In Waldron's case, no explicit finding
on the merits was made, yet the board postponed his induction and
interviewed him after the State Director recommended this course
following his review of Waldron's file. Waldron's claim was not
specifically denied as untimely. Thus, in each case, it would
appear that either explicitly or implicitly some evaluation of the
merits of the CO claim was made. But because the claims were
considered late, neither petitioner was afforded the normal
administrative appeal rights. [
Footnote
2/1] Such a result can be justified under
Ehlert only
if these claims are to receive full
de novo consideration
by the military. In challenging assurances that their claims will
receive such consideration, the petitioners point to � 3-b(2) of
Army Regulation 6320, which was not considered in
Ehlert.
It provides that
"[r]equests for discharge after entering military service will
not be favorably considered when . . . (2) [b]ased solely on
conscientious
Page 414 U. S. 42
objection claimed and denied by the Selective Service System
prior to induction."
The issue, then, is whether the actions of petitioners' local
boards may constitute, in the Army's view, denial of the CO claim,
thus barring its consideration by the Army. On its face the
regulation would surely allow this construction. Such a possibility
could perhaps have been avoided if the local boards in these cases
had explicitly based their actions on the claims' being untimely,
as the Board in
Ehlert did. But the boards here did not do
this, and indeed, in Musser's case, purported rather clearly to
reject the claim on the merits. These cases are thus different from
the petitioner's in
Ehlert. With the local board's actions
here, at best ambiguous, we cannot know that the Army will consider
the claims.
The majority emphasizes that, in the circumstances of these
cases, the local boards were without authority to reopen the
classifications and consider the claims on the merits. That is, of
course, now the law. But while this rule effectively forecloses
registrants from the procedural rights within the Selective Service
System that a reopening would afford, it cannot guarantee that the
Army will afford the registrant a full hearing on his claims. That
will depend upon the Army's application of its own regulations to
these facts. [
Footnote 2/2]
Page 414 U. S. 43
Indeed; even if we assume that the Army will superficially grant
petitioners' claims
de novo consideration, we, in fact,
have no way of discovering whether,
sub silentio, some
weight will be accorded the prior proceedings of the draft boards.
Yet those proceedings are deserving of no weight whatsoever, since
petitioners were foreclosed from the administrative appeal
ordinarily allowed.
The opinions summarily affirmed today conflict squarely, as the
Solicitor General concedes, with decisions in the First, Second,
and Third Circuits.
United States v. Alioto, 469 F.2d 722
(CA1 1972);
United States v. Jerrold, 480 F.2d 1293 (CA1
1973);
United States v. Cotton, 346 F.
Supp. 691 (SDNY 1972);
United States v. Usdin, 6
S.S.L.R. 3039 (EDNY 1972);
United States v. Shomock, 462
F.2d 338 (CA3 1972);
United States v. Ziskowski, 465 F.2d
480 (CA3 1972);
United States v. Folino, No. 72-1974, CA3
June 29, 1973. At a minimum, we should have set these cases for
argument and full briefing.
[
Footnote 2/1]
If the board reopens the file, the registrant has the right
after an adverse decision to a personal appearance before the board
and appeal. Since here the files were not considered reopened, the
petitioners had no such rights.
Compare 32 CFR § 1625.4
with 32 CFR § 1625.13.
[
Footnote 2/2]
Unlike
Ehlert, in these cases we have no assurances
from the Army that the registrants will receive a hearing. The
majority refers to a letter from the Army's General Counsel lodged
with the Court of Appeals in
United States v. Shomock, 462
F.2d 338, 345 n. 17 (CA3 1972). But this letter does no more than
distinguish between claims denied by the Selective Service System
on the merits and those not considered because the board did not
reopen the classification; only the latter will receive a hearing
in the Army. But there is no assurance that, in the confused
circumstances of these cases, the Army will not consider these
claims to have been denied on the merits.