The opinion of the court was delivered by: GANEY
Defendant was indicted on April 29, 1953, under § 12 of the Universal Military Training and Service Act of 1948, 62 Stat. 622, 50 U.S.C.A.Appendix, § 462, for failing and refusing to be inducted into the Armed Forces of the United States at the Induction Center, Philadelphia, Pa., in violation of the Act and the rules and regulations made pursuant thereto.
On July 24, 1950, defendant registered under the provisions of the Act with Local Board 35, Toms River, New Jersey. On December 29, 1950, he was classified I-A and duly notified. On or about October 31, 1951, he was found to be physically acceptable by the Armed Forces examining board. Thereafter an Order to Report for Induction was mailed to him on May 5, 1952. The induction date was later postponed until July 21, 1952, to enable him to complete his junior year in high school. On the latter date he reported to the Induction Center but refused to be inducted. A few days thereafter Local Board 35 of Toms River received a letter from the Armed Forces Examining Station in Philadelphia stating that defendant refused to submit to induction on the ground that he is a member of Jehovah's Witnesses. This was the first time the local board knew of any claim as to defendant's professing to be a Jehovah's Witness or his possible stand as a conscientious objector.
Subsequently, on October 17, 1952, he inquired by letter to his local board as to whether it was permissible for him to fill in a conscientious objector application. His letter of January 20, 1953 to the board is as follows:
'I, Robert Underwood and a Witness of Jehovah God, am requesting a reconsideration of my classification. Being a Jehovah's Witness it would be contemptible and blasphemous to Almighty God if I were to engage in warfare, and so in complying with the laws of the land my only alternative is an appeal for I-O, Conscientious Objector.
'Due to a misunderstanding of the legal procedures I failed to record my appeal at the set time for such, but urgently request forgiveness. If you decide to grant my petition at this time it will be considered a great favor in my behalf.
'Supposing that you send me a Conscientious Objector's form, I will fill it out and return it by mail if satisfactory to you. Or upon your request I would gladly appear for interview.
'It is entirely up to you and I await your decision.'
Regulation 1625.2, 32 CFR 1625.2, promulgated pursuant to the Act, entitled 'when registrant's classification may be reopened and considered anew,' provides in pertinent part as follows: 'The local board may reopen and consider anew the classification of a registrant (1) upon the written request of the registrant * * * or (2) upon its own motion if such action is based upon facts not considered when the registrant was classified which, if true, would justify a change in the registrant's classification; provided, in either event, the classification of a registrant shall not be reopened after the local board has mailed to such registrant an Order to Report for Induction (SSS Form No. 252), unless the local board first specifically finds there has been a change in the registrant's status resulting from circumstances over which the registrant had no control.' The local board has not made a specific finding that there had been such a change in the defendant's status.
On the basis of this regulation, the Government contends that the local board, after having mailed the Order to Report for Induction to the defendant, acted within the law in not reopening his classification, regardless of the merits of his claim.
Regulation 1625.2 is clear. We believe § 6(j) of the Act, 50 U.S.C.A.Appendix, § 456(j), is equally clear. That section provides: 'Nothing contained in this title shall be construed to require any person to be subject to combatant training and service the the armed forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form.' It is plain that a person meeting the conditions of the above section of the Act is not to be subjected to combatant training and service. This privilege is not to be defeated by procedural regulations. Nowhere in the Act does it provide that unless the registrant makes his claim before notice of induction he thereafter waives his right to the privilege. Had Congress so intended, it would have set forth such intention in unmistakable terms. See United States ex rel. Hull v. Stalter, 7 Cir., 1945, 151 F.2d 633, 635; United States v. Clark, D.C.W.D.Pa.1952, 105 F.Supp. 613, 615. Although in both of the cited cases the claim of conscientious objector was made prior to the time notice for induction was sent, the reasons given in support of the holdings apply to the present criminal action. However in United States v. Crawford,
a case in which the registrant raised the claim of conscientious objector for the first time nine and a half months after he received an order to report for induction, District Judge Edward P. Murphy said: '* * * While regulation 1625.2 is not invalid on its face, it can have no applicability to a claim of conscientious objection, whenever made, so as to deprive the objector of a hearing at which he may prove his good faith.
'No such hearing been afforded defendant, the United States has not met the conditions precedent to a prosecution for draft evasion.'