Kalodner and Van Dusen, Circuit Judges and Wright, District Judge.
CALEB M. WRIGHT, District Judge.
This is an appeal by Carroll from his conviction by a jury of failure to report for induction into military service in violation of 50 U.S.C.App. § 462(a).
Appellant's selective service file, which contains the records kept by his local draft board, discloses the following pertinent facts: 1 -- Appellant registered with Local Board No. 12, Montclair, N. J., on August 26, 1958; 2 -- at that time appellant requested and signed SSS Form No. 150, a special form for persons who claim to be conscientious objectors; 3 -- appellant was classified 1-O (conscientious objector) on August 16, 1960; 4 -- on August 12, 1963 returned SSS Form No. 127, (current information questionnaire) along with a letter outlining his future plans to Local Board No. 12; 5 -- appellant was re-classified into class 1-A (available for military service) on September 17, 1963; 6 -- on October 15, 1963 appellant appeared personally before Local Board No. 12 and on October 16, 1963 he was retained in class 1-A by a unanimous vote of the Board; 7 -- appellant appealed that decision to the State Board of Appeal which affirmed the action of Local Board No. 12 by a unanimous vote; 8 -- appellant exhausted all of the administrative remedies available to him within the Selective Service structure.
It is by now axiomatic in Selective Service cases that the standard of judicial review of classifications by a local board is whether there is basis in fact for the board's classification. Estep v. United States, 327 U.S. 114, 66 S. Ct. 423, 90 L. Ed. 567 (1946); Dickinson v. United States, 346 U.S. 389, 74 S. Ct. 152, 98 L. Ed. 132 (1953); United States v. Spiro, 384 F.2d 159 (3rd Cir. 1967).*fn1
Does the record before us supply basis in fact for appellant's 1-A classification? The Selective Service regulation, 32 C.F.R. Ch. XVI § 1622.14 set forth the bases upon which a registrant is to be classified 1-0:
"(a) In Class 1-0 shall be placed every registrant who would have been classified in Class 1-A but for the fact that he has been found, by reason of religious training and belief, to be conscientiously opposed to participation in war in any form and to be conscientiously opposed to participation in both combatant and noncombatant training and service in the armed forces." (Emphasis added).
The regulations also provide, that a registrant must be placed in the lowest class for which he is eligible, Title 32, Ch. XVI, § 1623.2. Thus regulation § 1622.14 is not merely precatory, but is mandatory upon the local board.
The burden is upon the registrant to establish his entitlement to any classification other than 1-A. United States v. Porter, 314 F.2d 833 (7th Cir. 1963); United States v. Brown, 290 F. Supp. 542 (D.Del. May 13, 1968). The record shows that appellant had met this burden to the satisfaction of Local Board No. 12 on August 16, 1960 when it classified him 1-0, and further indicates that this situation obtained until September 17, 1963 when the board, having received appellant's current information questionnaire (SSS Form 127) and the accompanying letter declarative of certain of appellant's future intentions, reclassified him 1-A.
The question then is whether the information contained in appellant's letter of August 12, 1963 and that which was developed at his personal appearance before the board, justified the board's changing his classification from 1-0 to 1-A. Title 32 C.F.R. Ch. XVI § 1625.2 authorizes a local board to reopen a registrant's classification:
"(b) 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; * * *"
What were the "facts not considered" upon which the local board relied? Appellant's August 12, 1963 letter states, among other things, that he would like, if possible, to continue his secular work as a photographer but that "my Ministry shall always come first." And further "I am not trying to get out of anything and just don't believe in pioneering in order to get out of anything, it must truly come from the heart. I do want to pioneer, but the time is not right. First I must establish myself as a good photographer, then go in my own business on a part time basis, so I can pioneer and help and preach to people today, who are so spiritually sick."
The minutes of the October 15, 1963 meeting of Local Board No. 12 show that appellant appeared personally before them and answered several questions and made certain statements. He indicated that after he received his 1-A classification he realized that he had been wrong to attempt to serve two masters and that henceforth ...