(b) His physical examination did not take into consideration
the letter from his personal physician.
4. The imposition of work in the State Hospital not under
control of the federal government is in violation of the
Thirteenth Amendment to the Constitution of the United States.
The facts as disclosed by the file of Mr. Diercks before the
board were as follows:
His first questionnaire was filed with the board October 12,
1948. Mr. Diercks stated he was born April 4, 1927. He was a
minister of Jehovah's Witnesses in regular service since 1945,
having been ordained on that day. His occupation was part time
general farm work for the past four years at a weekly pay of
$35.00 for an average of 40 hours work per week. He was
responsible for the operation of the farm which was owned by his
father. 35 acres of corn, 15 acres of hay and 22 acres of oats
were planted on the farm and it was stocked with 800 fox, 20 pigs
and 15 cows. He stated he was conscientiously opposed to
participation in war in any form and he was physically disabled
with "Metabolic Disterbance." He requested a 4-D (Ministerial
Exemption) or a 4-F (Physically unfit). With the questionnaire,
he filed affidavits from several persons that he preached from
house to house and lectured. His father also filed an affidavit
alleging his son devoted on the average of 20 hours per month at
field service work and 25 hours per month to study by himself,
and he was enrolled in the Ministry School conducted at Kingdom
Hall (Church of Jehovah's Witnesses). The draft board on December
29, 1948 classified Mr. Diercks 1-A.
Mr. Diercks completed his form No. 150 (special form for
conscientious objector) April 25, 1949, in which he noted he
worked as a farm hand and insurance salesman for his father. He
became a member of Jehovah's Witnesses April 29, 1949. On April
26, 1949, Mr. Diercks was classified 4-E (conscientious
objector).*fn1 December 18, 1940, Mr. Diercks was reclassified
1-A-O, which made him subject to noncombatant military service.
The defendant requested a hearing before the board, and at the
hearing stated that he preached a little every Sunday and also
during the week, and he had a job on the farm with his father.
The board again on January 11, 1951, classified the defendant
There is no further notation until December 18, 1951, when the
board reviewed the file and changed his classification to 1-O
(Available for civilian work contributing to the maintenance of
national health, safety, or interest.) Immediately the defendant
objected to this classification claiming a ministerial exemption.
Another personal appearance was given Mr. Diercks by the board
on January 24, 1952. On the board's summary there is a statement,
Mr. Diercks preached every day and he had given sermons of an
hour and half in length on different subjects in the Bible for
the past six Sundays. As he received no pay for preaching, he was
in the insurance business with his father at Algonquin, Illinois,
where he made his money. The board informed Mr. Diercks that they
considered his Ministry work an avocation. On January 24, 1952,
he was classified 1-O, (Conscientious Objector).
By letter, an appeal was requested from this classification.
Mr. Diercks asserted his ministerial duties and enclosed a
certificate which authorized him to act as a duly ordained
minister of Jehovah's Witnesses. The appeal board on September
11, 1952 affirmed the local board's classification of 1-O.
While the appeal was pending, Mr. Diercks was ordered to appear
before the Chicago Armed Services Examining Station on July 15,
1952. In his medical history before the board, he reported
that he had two jobs in the past three years, and the longest
period that he held any of these jobs was "84 months," but his
usual occupation was a minister. He was given his physical
examination on July 15, 1952, and was reported acceptable for
induction July 24, 1952. The Selective Service Board on July 18,
1952, received a medical report from Dr. Maximilian Kern, of
Chicago, Illinois, the personal physician of Mr. Diercks, but it
was not sent to the examining station until February 12, 1953.
After receiving this report the examining board reported back to
the local board that he was physicially fit for induction.
Another letter was written by Mr. Diercks on October 7, 1952,
stating that he was regularly teaching and preaching the
principles of religion as embodied in the creed or principles of
the church known as Jehovah's Witnesses. He also enclosed with
the letter a document entitled "Pioneer Appointment."*fn2
A special report for Class 1-O registrants was returned by Mr.
Diercks to the local board on October 14, 1952. As employers he
listed: (1) the Watchtower Bible and Tract Society, describing
his occupation as a minister. (2) A.E. Diercks, describing his
job as follows: "I have helped out part time on my father's
farm and in his insurance business." He failed to answer when the
latter work started or ended.
The local board was in doubt as to the correctness of its
classification and wrote the Illinois State Headquarters
requesting an opinion as to whether it was mandatory to give Mr.
Diercks a 4-D exemption, as a minister, on the basis of his
Pioneer Appointment. The board received a reply that it was not
mandatory unless in the opinion of the local board the registrant
was so qualified.
Two more letters dated December 4, 1952 and December 8, 1952
were written by Mr. Diercks to the board. The information in his
letter of December 8 stated he devoted forty to sixty hours per
week in preaching, and that any other work in which he was
engaged in to sustain him was relatively unimportant, and that he
did not permit it to interfere with his regular ministry work. He
further noted that he had been assigned by the Watchtower Bible &
Tract Society to do evangelistic house-to-house missionary work
in a territory about twenty miles long and fifteen miles wide.
The board considered the letters and refused to reopen his
classification or to grant another hearing. Mr. Diercks met with
the local board to discuss his civilian work assigned February
12, 1953. He reiterated his calling was to serve God. He stated
"Jehovah's Witnesses are being classified 4-D all over the
country and I see no reason why I should not be classified 4-D."
On February 23, 1953, Mr. Diercks wrote the board that he was
devoting his life to ministry. March 23, 1953, the board mailed
Mr. Diercks his induction order to report at the Manteno State
Hospital April 2, 1953.
The first question presented is whether there is any basis in
the facts which would justify or support the denial of the 4-D or
ministerial classification by the selective service board. In the
first questionnaire Mr. Diercks stated that he worked 40 hours
per week at secular work. He termed this "part time." He always
claimed his vocation was a minister, and while he insisted upon
this in hearings before the board and in his letters to the
board, he at no time advised that he had decreased his secular
work. It was the duty of the board to determine not only that Mr.
Diercks was a "`regular or duly ordained minister of religion'"
but also that his vocation was to "teach and preach the
principles of religion and administer the ordinances of public
worship as embodied in the creed or principles of his
church".*fn3 The board was justified in assuming that his
employment of 40 hours a week in secular work continued. It is
true on December 8, 1952, Mr. Diercks by letter informed the
board that he devoted forty-to-sixty hours per week to preaching,
and he did not let the secular work interfere with his regular
ministry work. This still leaves in his file the uncontradicted
statement that his "part time" secular work was 40 hours per
week. It is not the duty of this court to reclassify Mr. Diercks,
but merely to determine whether there was a basis upon which the
board was justified in denying the 4-D classification. Our 7th
Circuit, on June 15, 1954, in United States v. Simmons,
213 F.2d 901, at page 903 stated:
"[T]he burden is on the claimant to prove himself
to be within the group entitled to claim the
privilege. The court reviewing an order denying such
a claim of privilege may not weigh the evidence. The
selective service file may be scrutinized only for
the narrow purpose of determining whether any factual
basis supports the classification, and in its
scrutiny the reviewing court may not require
adherence by the administrative body to the niceties
of judicial rules of evidence. When and if the court
determines that the contested order rests on a basis
in fact, its jurisdiction ends, even though the court
be convinced that the order is erroneous."
In Dickinson v. United States, 346 U.S. 389, the registrant
clearly detailed the change in status of his secular work. Mr.
Diercks clearly failed to do this. The board had a factual basis
to deny the 4-D classification. See, United States v. Koch, D.C.,
119 F. Supp. 650; United States v. Schuemann, D.C., 119 F. Supp. 640;
Neal v. United States, 5 Cir., 203 F.2d 111.
There is no merit to the defendant's second contention that he
was not given a fair hearing on January 24, 1952. At the trial
Mr. Diercks testified he was not permitted to quote from the
Bible, but he gave no material and reliable facts which would
change his status. The summary was in question and answer form
and contained all the relevant facts. It is not required to be a
judicial transcript of everything said before the board. It is
sufficient if the file contains all the substantial facts bearing
on defendant's status. United States v. Mansavage, 7 Cir.,
178 F.2d 812. His last statement in this summary was: "I was glad to
have the opportunity of speaking before you as I wanted to state
my point." It was evident that Mr. Diercks was satisfied with the
hearing at that time. The summary certainly refutes defendant's
objection he was not given time at the hearing.
The third contention of Mr. Diercks, claiming his physical
examination was illegal and destroyed jurisdiction of the board,
is of no avail. There is nothing in the regulation which states
when he should be examined. The regulations*fn4 expressly
provide that the local board shall comply with the directive of
the State Director and shall mail to the registrant an order to
report for physical examination without regard to whether appeal
of classification has been or will be taken. The letter of his
personal Doctor to the selective service board did not reach the
examining board in time to have consideration at the time he was
physically examined. However, the local board did forward the
letter in February of 1953, and the examining board replied that
it did not change his status. He was given a complete physical
examination by the examining board and there is nothing in the
file to indicate anything
improper in his physical examination. Nothing in the regulations
require the examining board to consider letters from personal
Mr. Diercks has also contended that the assignment of work at
Manteno State Hospital was in violation of the Thirteenth
Amendment. This was discussed in the case of United States v.
Smith, D.C., 124 F. Supp. 406, and the court concluded the
civilian work contributed to the national health, and was within
the constitutional limitations.
It must be concluded the defendant is guilty as charged.