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UNITED STATES v. HERTZOG

June 23, 1954

UNITED STATES
v.
HERTZOG



The opinion of the court was delivered by: FOLLMER

Defendant has been indicted for refusal to be inducted into the armed forces of the United States of America, in violation of Title 50 U.S.C.A.Appendix, ยง 462. On arraignment defendant entered a plea of not guilty to the charge and waived a jury trial. The case was accordingly tried to the Court without a jury.

At the trial the Government produced the file of Local Board No. 28, Reading, Pennsylvania, being its complete file in relation to this defendant, to which offer counsel for defendant indicated he had no objection. An examination of this file reveals that defendant prepared the Selective Service System Classification Questionnaire, which was received by his Local Board on April 23, 1951. In this questionnaire defendant stated that he was a minister of religion, regularly serving as such, and that he was ordained November 22, 1947 by 'Jehovah God through the Watchtower Bible & Tract Society at Philadelphia, Pennsylvania.' He further stated that since July 21, 1948 he had been, and still was, employed as an 'Indentured Apprentice Laboratory Technician' by Textile Machine Works, Foundry Division, Reading, Pennsylvania, whose business was the manufacture of grey iron, aluminum, and brass castings and patterns; that his work involved the chemical quantitative analysis and physical analysis of foundry materials and products; that he was a full time student at 'Wyomissing Polytechnic Institute,' Wyomissing, Pennsylvania, majoring in the technical curriculum preparing for a metallurgical laboratory technician, and that he expected to receive from said institution a certificate for pre-engineering on June 1, 1951. He requested that he be classified in Class 4-D, claiming exemption as a duly ordained minister of religion under Section 6(g) of the Selective Service Act of 1948. *fn1"

 In addition to his request for exemption as a minister he stated in the questionnaire that by reason of religious training and belief he was conscientiously opposed to participation in war in any form, and requested the Local Board to furnish him a Special Form for Conscientious Objectors (SSS Form No. 150), which he was to complete and return to the Local Board for its consideration. With his questionnaire defendant submitted a letter in support of his claim for 4-D classification.

 On April 27, 1951, defendant filed the special form for conscientious objector, stating as follows:

 
'(B) I am, by reason of my religious training and belief, conscientiously opposed to participation in war in any form and I am further conscientiously opposed to participation in noncombatant training or service in the armed forces. I, therefore, claim exemption from combatant training and service and, if my claim is sustained, I understand that I will, because of my conscientious objection to noncombatant service in the armed forces, be deferred as provided in Section 6(j) of the Selective Service Act of 1948.'

 And with this form defendant submitted affidavit of the company servant of defendant's company to the effect that defendant is an ordained minister and one of Jehovah's Witnesses. To the same effect were also the affidavits of five other company officials, the unsworn statement of thirty-one members of the same company, and two additional affidavits from other Jehovah's Witnesses ministers.

 On August 7, 1951 defendant was classified 1-A by his Local Board.

 On the final page of the questionnaire under the heading 'Minutes of Action by Local Board and Appeal Board,' there appeared, inter alia, the following, '8-30-51 Registrant appeared before the Board -- no action taken.'

 As a part of the complete Local Board file in evidence, there appeared a paper which, according to the testimony of the Clerk of the Board, correctly reflected the action taken by the Board on the occasion of defendant's personal appearance on August 30, 1951. This paper read as follows:

 
'The registrant called on the board and stated he felt he was entitled to a 4-D classification being a minister of the gospel (Jehovah Witness). The chairman quoted from the Selective Service Act of 1948 in which it was brought out that Congress had narrowed the definition of a minister -- the quotation which was read to the registrant, as listed on Page 4 of Pennsylvania State Selective Service Memorandum, dated August 7, 1951, 'Ministerial Status of Jehovah Witnesses'. The registrant was asked whether he devoted his full time to ministerial duties and he replied he did not devote his full time but just evenings and Sundays only. He stated he was regularly employed as an apprentice machinist for the Textile Machine Works. The members of the Board present were in agreement that the registrant could not qualify for a 4-D classification and so informed the registrant. He was advised of his right of appeal which he stated he would exercise in writing within the next ten days.'

 On September 6, 1951, defendant wrote to the Local Board reaffirming his claim for a 4-D classification, stating that the ' least possible classification I should be given under the present law would be 4-E or that of a conscientious objector opposed to combatant and noncombatant service in the armed forces,' and requesting that his file and the 'enclosed appeal letter' be forwarded to the Appeal Board.

 On March 24, 1952, the complete file of registrant was forwarded by the Local Board to the Appeal Board for the State of Pennsylvania. On May 29, 1952, the Appeal Board forwarded the file to the United States Attorney for review and hearing in accordance with Section 1626.25 of the Regulations for the purpose of securing an advisory recommendation, stating in the transmittal letter, inter alia, as follows: 'The file of the above registrant has been reviewed by members of the Appeal Board and they are of the opinion that he is not entitled to a class lower than Class I-O or to Class I-O.'

 Under date of December 29, 1952, the Hearing Officer advised the registrant as follows:

 
'I have reviewed the file in your matter and do not find any evidence unfavorable to your claim to be classified ...

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