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March 5, 1971


The opinion of the court was delivered by: Robson, Chief Judge.


The defendant moves to dismiss this indictment brought for his admitted refusal to submit to induction into the armed forces. For the reasons stated below, this court is of the opinion the indictment should be dismissed.

The defendant has appended to his motion, as Exhibits 1 through 62, a certified copy of his Selective Service file. The relevant facts are not controverted by the Government. On July 12, 1963, the defendant registered with the Selective Service System. At that time, the defendant claimed exemption from military service as a conscientious objector by signing the following printed statement on his initial classification questionnaire:

    "By reason of religious training and belief I am
  conscientiously opposed to participation in war in
  any form and hereby request that the local board
  furnish me a Special Form for Conscientious Objector
  (SSS Form No. 150).

(signed) Patrick George Griffith"

Defendant's Exhibit 3, page 8. However, the local board did not send to the defendant Form 150 for the formal filing of his conscientious objector claim. On July 15, 1963, the local board classified the defendant 1-A without consideration of his conscientious objector claim. Defendant's Exhibit 3, page 8.

Thereafter the local board sent the defendant several current information questionnaires (SSS Form 127). On November 1, 1963, the defendant indicated that his hobbies included an "Israelite Bible Class."*fn1 Defendant's Exhibit 4, page 2. On a similar form returned to the local board on May 16, 1966, the defendant stated that he was "studying hebrew" [sic] and "writing little hebrew" [sic]. Defendant's Exhibit 9, page 2.

The defendant was processed for a pre-induction physical examination on January 3, 1964, but he was rejected on the grounds of "limited trainability." Subsequently, he was determined acceptable for service following the revision of the Army Mental Standards. Defendant's Exhibit 24. On April 28, 1967, the local board issued an order directing the defendant to report for induction on May 17, 1967. On May 12, 1967, the defendant requested in writing that the local board send him a conscientious objector form "as soon as possible." Defendant's Exhibit 15. The local board sent the form, and the defendant returned it on May 16, 1967. Defendant's Exhibit 20. The local board then requested authority from the State Director of Selective Service to postpone the defendant's induction until his file and SSS Form 150 (conscientious objector claim) could be reviewed. Defendant's Exhibit 16. As a consequence, the defendant's order to report was postponed "until further notice." Defendant's Exhibit 22. Two days after the defendant submitted his SSS Form 150, he sent the local board his membership card in the A-Beta Israel Hebrew Center, a black Israelite sect.

During the review of the defendant's file on June 5, 1967, the local board noted that it had failed to send the defendant a conscientious objector claim form in accordance with his request of July 12, 1963. The appropriate form was sent to the defendant after he had received the induction order issued on April 28, 1967. The local board thereafter reported to the State Director of the Selective Service that

  "[t]here is nothing in this form which warrants
  change of classification, however, in view of the
  oversight in 1963, we are concerned with possibility
  of technicality being raised by registrant upon
  appeal. We feel registrant status, i.e., induction
  should be firm, but would like a ruling from you."

Defendant's Exhibit 23. The State Director then authorized the local board to cancel the defendant's induction order, which it did on July 10, 1967. Defendant's Exhibits 3, page 8; 28. On the same day the defendant's classification was reopened, he was again classified 1-A. Defendant's Exhibit 3, page 8. The record does not indicate that the local board considered any evidence other than the defendant's SSS Form 150 as a basis for its decision. The defendant was then sent notice of his right to a personal appearance and appeal (SSS Form 217). The defendant's responsive letter to the Government appeal agent, in the form of biblical quotations, was treated as an appeal. Defendant's Exhibits 30; 32; 33. On November 20, 1967, the Appeal Board affirmed the defendant's 1-A classification. Defendant's Exhibit 36. The defendant was ordered to report for induction on January 31, 1968; he reported on that day, but he refused to submit for induction. Exhibits 3, page 9; 43; 44; 45; 48. On February 1, 1968, the United States Attorney was informed of the defendant's refusal to submit to induction. Defendant's Exhibit 47. Two years elapsed before the defendant was indicted by the January 1970 Grand Jury.

On its face, the defendant's SSS Form 150 states a prima facie conscientious objector claim. In describing the nature of ...

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