Gene Woo v. United States

"[T]he draft law * * * exempts from compulsory military service any person `who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form'. 50 U.S.C. App. 456(j). Conformably the selective service regulations (1622.2) have provided for those claiming status as conscientious objectors, classifications of I-A-O (conscientious objector available for noncombatant military service only), and of I-O (conscientious objector available for civilian work contribution to the maintenance of the national health, safety or interest). A registrant who claims such status and is nevertheless classified I-A (available for military service) by the local board, has the right to request a personal appearance before the local board for reconsideration of the classification (Sec. 1624.1) and the right to appeal to the selective service appeal board (Sec. 1626.1, et seq.). If the registrant's claim of conscientious objection to military service is not sustained on preliminary review by the appeal board, the file is referred to the United States Attorney for investigation and hearing in the Department of Justice on the merits of the claim (Sec. 1626.25). Thereafter, and in the light of the information so obtained, the registrant's classification is again reviewed by the appeal board and a decision is made.

The regulations also provide for a possible reopening of a registrant's classification by the local board in its discretion upon the written request of the registrant. (Sec. 1625.2.)

A claim of conscientious objection presents a difficult factual determination of the subjective sincerity of the claim and of whether it arises from religious training and belief.

The anomaly in the entire situation exists because regardless of the extent to which the administrative procedures have been utilized, there can be no stronger proof of the sincerity of the registrant's objections than his willingness to subjectPage 995himself to a possible five year penitentiary sentence for draft evasion rather than to submit to compulsory service after his claim of exempt status has been rejected. Whether the objections are generated from religious training or belief remains an open question.

Nevertheless, the Government, while giving every consideration to those whose conscientious objections to military service are sincerely based on religious training and belief, cannot permit such a claim to be an escape hatch from the draft for citizens whose objections to service are spuriously asserted to be religiously dictated. The Government can do no more than afford adequate prosedural machinery for a fair determination, within the limitations of man's ability, of the integrity of the claim to exemption.

The defendant, Gene Woo, did not utilize his administrative remedies. He did not request a personal appearance before the local board or appeal after being classified I-A on September 18, 1961. He is not entitled to judicial review of such classification. Kaline v. United States,235 F.2d 54(9th Cir. 1956); Williams v. United States,203 F.2d 85(9th Cir. 1953); Rowland v. United States,207 F.2d 621(9th Cir. 1953); United States v. Grizzard,223 F. Supp. 890(S.D. Cal. 1963).

But, says defendant, in February, 1962, I requested a reopening of my case and a reconsideration of my classification under Section 1625.2 of the regulations, and the local board acted arbitrarily and unreasonably in refusing to reopen the case. Defendant contends that there was no basis in fact for the local board's refusal to reopen the case and reconsider the classification because all the evidence before the board (the two SSS 150 forms) was consistent only with the claim of exempt status. Cf. Peter v. United States,324 F.2d 173(9th Cir. 1963); United States v. Vincelli,215 F.2d 210,216 F.2d 681(2d Cir. 1954); Olvera v. United States,223 F.2d 880(5th Cir. 1955); United States v. Ransom,223 F.2d 15(7th Cir. 1955).

This is not a case where the registrant had presented new facts to the board for the first time in support of his prayer for reopening. His February, 1962, conscientious objector form was not different in substance from that filed and considered by the board in August, 1961. The sole and only reason the evidence before the board was all one way is that defendant wilfully refused or neglected to avail himself of the elaborate safeguards established by the regulations for determining the sincerity of his claims and their emanation from religious training and belief. Defendant wilfully refused or neglected to appeal the I-A classification or to request a personal appearance before the local board in September, 1961." (Clk's Tr. 11-13.)

"We hold that a local board does not act arbitrarily and unreasonably in refusing to reconsider a claim of exempt status by a conscientious objector when the same claim has previously been considered and rejected and the registrant has not invoked the administrative remedies which would have brought about a thorough investigation and hearing of all aspects of his claim. Cf. Boyd v. United States (9 CCA 1959),269 F.2d 607; Badger v. United States (9 CCA 1963),322 F.2d 902; Smith v. United States (4 CCA 1946),157 F.2d 176; United States v. Blankenship (S.D.W.Va. 1954),127 F. Supp. 760; United States v. Messerman (M.D.Pa. 1955),128 F. Supp. 759. To hold otherwise would create a shambles of this area of selective service classification. Simply by refusing or neglecting to invoke thePage 996administrative machinery for thorough investigation, such a registrant could always create a one-sided record before the board which would enable him to require reconsideration whenever induction became imminent. The failure of defendant to request a personal appearance before the local board or to appeal his I-A classification is itself evidence which the board may consider on request for reopening and reclassification and which impugns the integrity of defendant's claim to exempt status." (Clk's Tr. 13.)