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May 21, 1969

The UNITED STATES of America
Howell Rayful BROWN a/k/a Howell Brown

The opinion of the court was delivered by: DAVIS

 After trial without a jury, the defendant was found guilty of refusing to obey an order of his local draft board to submit to induction, in violation of Title 50 Appendix §§ 454 and 460.

 Before the Court are defendant's motions for judgment of acquittal, for a new trial, and for the declaration of a mistrial. In support thereof, the defendant has raised thirteen allegations of error. All essentially involve the assertion that the defendant was entitled to a 1V-D (ministerial) exemption, in addition to a 1-O classification as a conscientious objector.

 Initially, the defendant asserts that his Local Board erred in failing to reopen his 1-A classification, upon receiving notice of his claim for ministerial exemption. A brief recitation of the chronology of events is required.

 In 1961 the defendant registered with his Local Board. In July 1963, he received, prepared and returned his classification questionnaire (Form 100). No CO status or ministerial exemption were claimed therein. In due course then, he was classified 1-A. On May 20, 1964, he was ordered to report for a physical examination. Twelve days later, he was found qualified for military service. However, on June 16, 1964, the defendant filed a "conscientious objector" form with his Local Board (Form 150). Based on the information contained therein, the Local Board reviewed the defendant's case, but rejected his CO claim. The defendant was so notified by letter dated July 21, 1964.

 One week later, the defendant wrote to the local board, and requested an "audience * * * to establish my religious conviction and my ministerial activities". As requested, an interview with the Local Board was conducted on October 5, 1964. At this interview, the defendant was expressly advised to "get a letter from Watch Tower Headquarters and send same to this Local Board," for the purpose of establishing his right to a ministerial exemption.

 Parenthetically, we note that even if the statement would have been retained and considered by the Board, it was of little probative value. In fact, it was inconsistent with the defendant's assertion that he was entitled to a ministerial exemption, since it did not indicate that the defendant was a "Pioneer", the first level wherein a ministerial exemption would normally be authorized. Based on the evidence contained in the file, the Local Board again reconsidered the defendant's case, but properly concluded that the 1-A classification should be retained. The defendant then filed a notice of appeal. However, the defendant also requested the opportunity to "present new evidence" (Letter dated Oct. 25, 1964). Since the Appeal Board, as an appellate tribunal, does not receive evidence de novo, the defendant again was advised to "present any new evidence to your local board." (Letter dated October 27, 1964). No such evidence was presented to the Local Board.

 The Appeal Board then certified the matter to the Department of Justice for an advisory recommendation. This took twenty months. On the basis of his interview with the defendant, the Hearing Officer concluded that the defendant's proof was insufficient to sustain his CO claim. In addition, the defendant made no effort to present any tangible evidence of his "Pioneer" ministerial status, although he admitted having such a document in his possession at the time of the hearing.

 The Department of Justice concurred in the findings of the Hearing Examiner, and recommended that the defendant not be classified in class 1-O or in class 1-A-O.

 On October 26, 1966, the Appeal Board reviewed the entire file, and adopted the recommendation of the Department of Justice. Seven weeks later, an induction order was issued (S.S. Form No. 250). On January 4, 1967, the defendant refused to submit to induction, and this criminal prosecution followed in due course.

 As recited above, the defendant was given at least three opportunities to submit evidence of his claim for ministerial exemption. In each and every instance he elected not to comply. Had he presented a letter which emanated from the Watch Tower Society (marked D-4-A and B, but not admitted into evidence because not properly authenticated), there is little doubt that he would have established his right to a ministerial exemption. Having deliberately refused to bring this to the attention of the Local Board (and the Hearing Examiner), the defendant cannot now seriously assert that he was "denied basic fairness in the administrative procedure." He was given ample opportunity to set forth any and all evidence in furtherance of his position. The ministerial exemption contention was considered by the Hearing Officer, the Department of Justice and by the Appeal Board on the basis of the evidence appearing in the defendant's Selective Service file, in accordance with Regulation 1626.24. This is the extent of the Board's legal function. The file does indicate that the defendant presented "Publisher Reports" to the Hearing Officer, on March 26, 1966, indicating the number of hours spent in religious endeavors. However, since "Publisher" is regarded as an ordinary member, this was not sufficient for a 1V-D classification. See Rogers v. United States, 263 F.2d 283, 286 (9th Cir. 1959).

 The defendant now asserts that the Appeal Board did not have sufficient information to enable it to classify him regarding the ministerial exemption contention. However, again, the Appeal Board is restricted to the consideration of four classes of information recited in Regulation 1626.24. *fn1" In addition, the principal burden of establishing entitlement to an exemption is upon the registrant, not the Board. As set forth above, the defendant failed to submit the requisite evidence, although he freely admitted during trial that he had it in his possession. The paucity of any contrary information submitted to the Local Board by the defendant, left the Appeals Board with no reasonable alternative but to affirm the 1-A classification.

 The defendant also asserts that the Local Board, "* * * without sufficient or legal cause returned a statement relative to his ministerial claim * * ...

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