else you would like to present to the Board at this time? The classification I had in mind -- the gentleman stated I should write in for a I-A-O, but the classification I really want I found out later is I-O.'
It would seem from the above that the defendant not only asked for the very classification which he was later accorded but that he was actually advised by someone in the formulation of his request.
The file was forwarded to the Appeal Board and thence to the Hearing Officer. Defendant appeared before the Hearing Officer with several witnesses. Following the hearing, the Hearing Officer concluded that defendant was conscientiously opposed to combatant and noncombatant duty by reason of religious training and belief and recommended a I-O classification. The Department of Justice concurred and on April 29, 1953, recommended to the Appeal Board that defendant be classified I-O. On May 28, 1953 the Appeal Board by unanimous vote classified defendant I-O.
Defendant was furnished SSS Form No. 152 (Special Report for Class I-O Registrants) which he filled out and returned to the Local Board June 19, 1953. In due course he was assigned to civilian work at Mount Alto State Tuberculosis Sanatorium at South Mountain, Pennsylvania. He accepted the assignment and reported for work on December 15, 1953. After serving less than a month he quit work and left the Sanatorium on January 10, 1954, stating that his employment there limited him in the performance of his ministerial work.
Defendant now claims:
(1) The Local Board denied him procedural due process when it refused him the right to discuss his ministerial status.
(2) The Local Board denied him procedural due process in failing to post notice of the names and addresses of advisors to registrants in a conspicuous place in the office of the Board.
(3) The order of the Local Board to perform civilian work at the State Sanatorium and Sections 1660.1 and 1660.20 of the Selective Service Regulations are in conflict with the Act because the work is not national or federal work as required by the Universal Military Training and Service Act.
(4) The Act and Regulations violate the Thirteenth Amendment to the United States Constitution.
(5) The Act and Regulations violate the Fifth Amendment to the United States Constitution.
In his reply brief defendant states as follows:
'The Government on page 1 of its brief states erroneously that the defendants claim that they should be classified as ministers. While the defendants claimed as registrants before the board that they should be classified as ministers, it is not here contended in the defense, in the motion for judgment of acquittal or in the main brief for the defendants, that there was a denial of the ministerial status without basis in fact. This Court, therefore, does not have to consider whether there was a denial of the ministerial status by the local board in an arbitrary and capricious manner. The statement at the bottom of page 1 of the Government's brief should therefore be disregarded.'
In United States v. Niles, D.C.N.D.Cal., 122 F.Supp. 382, in refusing a motion for acquittal, the court held that the Universal Military Training and Service Act, § 6(j), 50 U.S.C.A. Appendix, § 456(j), providing for assignment of conscientious objectors to civilian work contributing to the maintenance of national health, safety or interest, authorized assignment of objector to institutional work with county department of charities and that the statutory provision as thus applied did not violate either the Fifth or Thirteenth Amendments of the United States Constitution. The Court of Appeals, 9 Cir., 220 F.2d 278 affirmed and certiorari was denied, 349 U.S. 939, 75 S. Ct. 784.
The work assignment in the instant case was to a facility owned by the Commonwealth of Pennsylvania and operated as a part of its health program. It is, therefore, completely within the purview of the Niles case.
Defendant has frankly, and in my opinion very properly, withdrawn any contention that the draft board illegally denied the ministerial claim because it was without merit which, in my opinion, was a withdrawal of Claim No. 1 made by the defendant. As to Claims No. 3 (work not national), No. 4 (13th Amendment), and No. 5 (5th Amendment), I am in full accord with the opinion of the court in United States v. Niles, supra. We have, therefore, for consideration only his Claim No. 2, namely, denial of procedural due process in failing to post notice of the names and addresses of advisors to registrants in a conspicuous place in the office of the Local Board. I find absolutely no merit in this claim.
Section 1604.41 of the Selective Service Regulations as originally promulgated and effective during the period involved in this case read as follows:
'Appointment and Duties. -- Advisors to registrants shall be appointed by the Director of Selective Service upon recommendation of the State Director of Selective Service to advise and assist registrants in the preparation of questionnaires and other selective service forms and to advise registrants on other matters relating to their liabilities under the selective service law. Every person so appointed should be at least 30 years of age. The names and addresses of advisors to registrants within the local board area shall be conspicuously posted in the local board office.'
On February 3, 1955, this section was amended by changing the fourth word in the first sentence from 'shall' to 'may', so that presently the appointment of advisors to registrants rests in the discretion of the Director.
It is the undisputed testimony of the defendant that the list of advisors was not published as provided for in the Regulations. The requirement of publication is not constitutional in origin but rather is derived solely from the Universal Military Training and Service Act and the Regulations issued thereunder.
In appealing from the I-A classification defendant said:
'I am, therefore, appealing my classification of I-A to that of a conscientious objector available for civilian work contributing to the maintenance of the national health or safety.'
He was given that classification; he did prepare and file with his Local Board SSS Form No. 152 (Special Report for Class I-O Registrants); he accepted the assignment and reported for work and after serving less than a month, he quit; and he now complains that he was not apprised of the names and addresses of advisors whom he might have consulted. Having received the very classification that he asked for, defendant was not prejudiced by the failure of the Local Board to publish the list of Selective Service advisors, as provided by the Regulations.
Defendant's motion for judgment of acquittal will be denied.