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UNITED STATES EX REL. STEIN v. GILLEN

September 24, 1971

UNITED STATES OF AMERICA EX REL. MORSE FREDRIC STEIN, PETITIONER,
v.
MAJOR ROLAND G. GILLEN ET AL., RESPONDENTS.



The opinion of the court was delivered by: McMILLEN, District Judge.

DECISION

Petitioner seeks a writ of habeas corpus on the ground that he was inducted into the armed forces after his claim for conscientious objector status was improperly rejected. He contends (a) that his local Selective Service Board in New York and the Appeal Board in Illinois failed to classify him I-O (as a conscientious objector), although the evidence adduced by him warranted this, (b) that both Boards failed to give legally valid reasons for denying his claim, and (c) that there was no basis in fact for classifying him I-A.

Respondents, in response to a motion for a rule to show cause, filed an Answer in the form of a legal memorandum. Therefore the Petitioner's entire Selective Service file is in the record without any dispute as to the facts or the authenticity of the documents.

Petitioner was originally classified II-S on October 14, 1965, being a student at Antioch College. He graduated in 1970 and, when ordered to report for physical examination on February 25, 1970, submitted statements of two doctors that he was suffering from certain allergies. Notwithstanding, he was found medically and morally fit for induction when examined on July 13, 1970, and he then asked for a personal appearance before the Board. This request was granted for September 15, 1970, and then postponed on the basis of Petitioner's request dated August 29 for SSS Form 150, seeking a I-O classification. He filed the form on October 1 and on October 15, 1970 was granted a personal appearance before his Board. His I-O application was denied on the date of his appearance. He filed a timely administrative appeal and requested transfer to the Illinois State Appeal Board, since he was then living in Chicago. On February 9, 1971, the Illinois Board affirmed the denial of an I-O status and Petitioner was inducted into the armed forces on June 11, 1971.

By various court orders and agreements of the parties, the Petitioner has been temporarily relieved of any military duties pending decision on his petition. The government has voluntarily submitted the necessary defendants to this court's jurisdiction so that we may grant the writ and discharge Petitioner from the army if justified. The court has concluded that the Petition should be denied and dismissed.

The first step is to define this court's power to review the actions of the local Board and of the Appeal Board. It is clear that this jurisdiction is very narrow and that we cannot review either Board's selection of the facts upon which it based a classification. In Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567 (1946), as quoted in United States v. Seeger, 380 U.S. 163 at 185, 85 S.Ct. 850, 864, 13 L.Ed.2d 733 (1965), the Court said:

  "The provision making the decisions of the local
  boards `final' means to us that Congress chose
  not to give administrative action under this Act
  the customary scope of judicial review which
  obtains under other statutes. It means that the
  courts are not to weigh the evidence to determine
  whether the classification made by the local
  boards was justified. 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."

The nature of this review has been somewhat refined, at least in I-O cases, by United States v. Lemmens, 430 F.2d 619 (C.A. 7, 1970) and U.S. ex rel. Sielen v. Hocking, (C.A. 7, #18,721, May 6, 1971). The rule laid down by these cases is that the classification must be based upon facts of "minimal probative value" if Petitioner has made out a prima facie case to the contrary, and the Board must state the basis for its decision with sufficient specificity so that a court can ascertain whether the decision was based on a valid or invalid reason.

From an examination of the file in this case it may be assumed, arguendo, that Petitioner made out a prima facie claim of I-O classification pursuant to Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970). He admittedly based his Form SSS 150 statements on that decision and had advice of counsel in doing so. Nevertheless the Board acted properly, within the requirements of Lemmens and Sielen, (supra) in denying the claim.

The local Board had the benefit of Petitioner's articulately worded statements on SSS Form 150, consisting of several typewritten pages, supported by letters from his mother, wife, father-in-law (a Federal Judge) and a rabbi. Additional letters from a former teacher and a college classmate were also filed, along with a six-page summarization of the Board's personal interview with the Petitioner and his father held on October 15, 1970. On the date of this interview the Board filled out N. Y. State Headquarters SSS Form 7 (which form was revised on May 1, 1970, before Welsh). Part of this printed form reads as follows:

  ()  1. It is the local board's opinion that
      registrant is not a genuine conscientious
      objector.

Explain: _________

After these words of the form the Board inserted:

  Registrant has failed to show that moral &
  ethical convictions have directed his life in the
  way traditional religious convictions of equal
  strength, depth, and duration have directed the
  lives of those whose beliefs are clearly ...

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