Before DUFFY, LINDLEY and SWAIM, Circuit Judges.
This is an appeal by the defendant, Lester Allen Bartelt, from a judgment finding him guilty and sentencing him to imprisonment for two years for refusing to submit to induction in the Armed Forces of the United States as required by the Universal Military Training and Service Act, 50 U.S.C.A.Appendix, § 451 et seq.
The principal question involved in this case is the correct interpretation of 50 U.S.C.A.Appendix, § 456(g), which provides for exemption from military training and service for those students preparing for the ministry who meet the requirements established in this section of the Code. This section of the Act provides for exemption from military training or service of "students preparing for the ministry under the direction of recognized churches or religious organizations, who are satisfactorily pursuing full-time courses of instruction in recognized theological or divinity schools, * * *."
The defendant registered on September 14, 1948, with the local Draft Board at Sheboygan, Wisconsin. In his classification questionnaire, filed December 9, 1948, the defendant stated that since June, 1948, he had been engaged with his father in the operation of his father's farm and that because of his father's health, the defendant had been compelled to do all the heavy farm work. The defendant stated in the questionnaire that he had "quit college to work full time on the farm, due to arthritis condition of my father." In this questionnaire the defendant also stated that his work on the farm required 60 to 70 hours per week. On the basis of the information so furnished by the defendant he was classified 1-A and was so notified.
Thereafter the defendant was granted a personal appearance before the Board during which he stated, under oath, that he had quit college because of "failures in two courses," but he explained that if he had not failed in college he would have dropped out of school anyway because he "didn't like school any more. Fourteen years was enough. I wasn't interested in studying any more." After this hearing the Board reconsidered the defendant's classification and again classified him as 1-A by unanimous vote and so notified him. From this action of the Board the defendant appealed but his 1-A classification was affirmed unanimously by the Appeal Board.
On July 24, 1950, the defendant filled out and filed with the Board the special form provided by the Board for claiming exemption as a conscientious objector. On August 10, 1950, the information supporting this claim was considered by the Board but it refused to reopen the defendant's case and his classification remained the same.
Pursuant to notice of October 2, 1950, from the Board, the defendant reported for and was given a physical examination, from which he was found to be acceptable for military service. He was notified of this fact on October 30, 1950.
On January 20, 1951, less than three months after he had been notified that he had passed his physical, the defendant informed the Board by letter that he was then attending the Theocratic Ministry School to become a Minister of Jehovah's Witnesses and was, therefore, entitled to a 4-D classification. After considering this claim, the Board, on January 25, 1951, again refused to reopen the defendant's classification for further consideration. The next day the Board sent the defendant a letter ordering him to report for induction on February 12, 1951. However, on January 29, 1951, the Board sent the defendant another letter requesting further information concerning his claim for exemption as a student for the ministry and on February 1, 1951, granted the defendant a second opportunity to appear in person before the Board. During this appearance the defendant admitted that he was still doing full time work on the farm and that he was attending the ministry school only on Friday evenings for a period of two hours, but he claimed that he sometimes did as much as ten hours work a week in preparation at home. Once more the Board refused to reopen the matter and so notified the defendant by letter dated February 5, 1951.
When the defendant reported for induction in Milwaukee, Wisconsin, on February 12, 1951, he refused to be inducted. At that time he wrote and signed a statement in which he said that he refused "to be inducted into the Armed Forces because as a member of Jehovah's Witnesses, I have become a minister of Jehovah and in agreement with my faith, am a conscientious objector."
The defendant contends that the District Court erred in failing to find that on the evidence in this case there was no basis for the classification of the defendant and also erred in failing to find that the Draft Board acted arbitrarily and capriciously.
Counsel for the defendant admits that in Estep v. United States, 327 U.S. 114, 122, 66 S. Ct. 423, 427, 90 L. Ed. 567, the Supreme Court limited, in cases such as this, the customary scope of judicial review which is available under other statutes providing for appeals from administrative decisions.The Supreme Court in that case, in discussing the significance of Congress having made the action of the local boards "final," said:
"The decisions of the local boards made in conformity with the regulations are final even though they may be erroneous. The question of jurisdiction of the local board is reached only if there is no basis in fact for the classification which it gave the registrant."
In the Estep case the Supreme Court cited with approval Goff v. United States, 4 Cir., 135 F.2d 610, 612, in which latter case the Court of Appeals had said that in a criminal proceeding the action of the board "is to be taken as final, notwithstanding errors of fact or law, so long as the board's jurisdiction is not transcended and its action is not so arbitrary and unreasonable as to amount to a denial of constitutional right." In Cox v. United States, 332 U.S. 442, 448, 68 S. Ct. 115, 118, 92 L. Ed. 59, the Supreme Court, in another criminal case, reiterated the statement it had made in the Estep ...