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United States v. McNulty

September 9, 1970

UNITED STATES OF AMERICA EX REL. JOHN F. HEMES, PETITIONER-APPELLANT,
v.
MAJOR DONALD MCNULTY, COMMANDING OFFICER, ARMED FORCES ENTRANCE AND EXAMINING STATION, MILWAUKEE, WISCONSIN, RESPONDENT-APPELLEE



Fairchild and Pell, Circuit Judges, and Eschbach, District Judge.*fn1

Author: Pell

PELL, Circuit Judge.

Petitioner-appellant, John F. Hemes, registered with Winnebago County Local Board 79, Wisconsin, on November 5, 1964. After he received various classifications, which are not deemed material here, on November 14, 1968, he was classified 1-A. Following the classification, he requested and was granted a personal appearance before the board. The local board declined to reopen the classification on January 16, 1969.

On February 18, 1969, Hemes, by letter, requested SSS Form 150, Special Form for Conscientious Objectors, which was executed and returned to the board on March 19, 1969. There was no previous indication in the board's file, or in the record before us, of a claim of a conscientious objector status.

On April 17, 1969, the local board again classified Hemes 1-A. On June 17, 1969, he appeared personally before the board. Prior thereto several persons had sent letters in support of Hemes' claim for status as a conscientious objector. Immediately prior to his personal appearance, he presented a written summary of his position. Following his personal appearance he was again classified 1-A. Thereafter he was ordered to report for induction. Following unsuccessful efforts to appeal within the framework of the Selective Service System procedures, he reported for induction on March 9, 1970 and completed the induction ceremony, after which he filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Wisconsin. That court dismissed the petition and the matter before us is the appeal from the dismissal.

The Military Selective Service Act of 1967, 50 U.S.C.App. ยง 451 et seq., and its predecessor statute provide that decisions of the local board are "final." This has been construed to mean that Congress chose not to give administrative action under the statutes the customary scope of judicial review obtaining under other statutes, that the courts are not to weigh the evidence to determine whether a classification made by the local board was justified and that decisions of the local board made in conformity with the regulations are conclusive even though they may be erroneous. Nevertheless, notwithstanding the purported finality, the Supreme Court has established that there may be judicial review if there is no basis in fact for the classification given the registrant. Estep v. United States, 327 U.S. 114, 66 S. Ct. 423, 90 L. Ed. 567 (1946). This court has recently reached the result foreshadowed by Dickinson v. United States,*fn2 346 U.S. 389, 74 S. Ct. 152, 98 L. Ed. 132 (1953), and which has been reached in varying degrees in other circuits.*fn3 United States v. Lemmens, 430 F.2d 619 (7th Cir. 1970).

In Lemmens we stated the matter as follows (at p. 8):

"We are persuaded that where the validity of a classification rejecting a claim as conscientious objector is an issue, and where the registrant described a belief which on its face fulfilled the legal requirements, the board did not state its reason for rejection, and the court can not otherwise determine with any degree of assurance that the decision really made by the board properly supported the rejection and had a basis in fact, the court should hold the classification invalid."

Adhering to the foregoing guiding principle we must now turn to the record in the case before us to determine whether Hemes described a belief which on its face fulfilled the legal requirements*fn4 and if so we must then further determine whether there is anything in the record which with any degree of assurance supports the board's decision. We are not unmindful that it is not for the courts "to sit as super draft boards, substituting their judgments on the weight of the evidence for those of the designated agencies. Nor should [the courts] look for substantial evidence to support such determinations." Witmer v. United States, 348 U.S. 375, 380, 75 S. Ct. 392, 395, 99 L. Ed. 428 (1955). In his SSS Form 150, Hemes in part stated the following:

"My religious training and belief stems from an intuitive feeling based upon my relationship with other people. I believe that man has an eternal quality within him; there is something about man that sets him appart from the rest of the animals on this earth. The greatest distinguishing quality of man is his ability to love. It is man's ability to know love and enter into love relationships. This totally human characteristic is my concept of God. My God is the God of love and this force is present in every individual. My belief that God is love is totally humanistic in character and is the foundation of my personal moral code."

Hemes also pointed out that his parents were "diligent Catholics" and he was raised in that faith, attending some parochial and some public schools. He further stated, "In my senior year [of high school], I severed relations with the Catholic Church. I have not gone back nor do I have any desire to do so." After referring to the impact upon his beliefs of a high school teacher, he stated that during this time "I was fired-up about religious concepts; since then my religious concern has mellowed to an inner glow based on love and is people orientated. I have traced the evolutionary development of my present religious beliefs based upon past training and beliefs. I think that it is important to note that the evolutionary process does not stop here; my beliefs are subject to change. Sometime in the future organized religion may once again become pertinate [sic] to my life."

In both his form 150 and in a subsequently submitted written summary, Hemes emphasized that while he was not capable of and was refusing to enter military service or to participate in war in any form because of his religious beliefs, he was hopeful that he would be allowed to serve his country through civilian alternate service. The local board's file also contains letters from Hemes' father, two teachers and two friends all testifying in effect to a belief in his sincerity. Hemes, as well as the local board, prepared a statement concerning his personal appearance before the board on June 17, 1969. There is no substantial dispute factually between the two statements. It appears that after Hemes read the summary of his religious belief he asked the board if they had any questions regarding his response to the form or any questions in general and they had none.

The question was asked of the board as to the criteria used to determine the validity or sincerity of a conscientious objector applicant to which the board replied that their decision was based on the applicant's response to SSS Form 150. Hemes' outline of his personal appearance also indicated that he asked the board if he met the requirements, to which there was no response, and that if he didn't, what more could he do to convince the board that he was sincere in his beliefs. To this also there was no response. He further indicated that the interview lasted approximately ten minutes. The last mentioned phrases appearing in Hemes' outline of his personal appearance are neither confirmed nor denied by the board's summary but since they were placed in the registrant's file without comment we may assume that matters stated were substantially correct.

The ultimate question in conscientious objector cases is the sincerity of the registrant in objecting, on religious grounds, to participation in war in any form. Witmer v. United States, 348 U.S. 375, 381, 75 S. Ct. 392, 99 L. Ed. 428 (1955). See also, Welsh v. United States, 398 U.S. 333, 90 S. Ct. ...


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