competent evidence from the Watch Tower Society, there is little doubt that any right to a 1V-D exemption would have been adequately established. Instead, the defendant submitted a statement, (D.Ex. 1), not from the Watch Tower Society, but from his overseer. The statement, however, was returned on October 13, 1964 (D.Ex. 2), since it pertained to both the defendant and his brother. Explicit instructions were given to the defendant to obtain and submit separate letters. This was not done.
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.
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 * * * instead of placing it in his file."
As previously mentioned, this statement was returned since it was submitted by the defendant's brother both registrants - the Local Board merely instructed that individual original statements should be obtained and submitted. This was a rather simple and not unreasonable procedural request. However, the defendant elected not to comply.
In addition, as previously observed, the statement had little probative value regarding a ministerial exemption, since it merely established that the defendant was a member of the congregation, and not in a position of leadership, as defined by Section 16(g) Selective Service Act 50 U.S.C. App. § 466(g). See also Fitts v. United States, 334 F.2d 416 (5th Cir. 1964). By his own admission, the defendant was not a Pioneer in 1964; he was awarded this status by the Watch Tower Society on January 27, 1966 (D. 4 Ex. A and B).
Turning now to the defendant's contention regarding the conscientious objector status, it is asserted that there was no indication in the record that he was insincere; therefore he concludes, the Board had no basis in fact to deny the 1-O classification. After independently reviewing the record, I cannot conclude that the Hearing Examiner and the Local Board were manifestly unreasonable in their analysis of the defendant's evidence and assertions, and the conclusion derived therefrom. The defendant places great emphasis upon the fact that when questioned regarding his conscientious objector claim, he recited biblical phrases such as "Those who live by the sword shall die by it", and "You must love your neighbor as yourself." However, there are many faiths which embrace these biblical teachings, but which do not conclude that they are a theological mandate against participation in warfare. The mere recitation by rote of isolated scriptural passages is in itself, insufficient to establish subjective religious convictions. Our review of the record indicates, however, that the defendant was given ample opportunity to elaborate upon and substantiate his conscientious objector contention.
Similarly, the submission of brochures to the Hearing Examiner may have established the dogma or doctrine of the Jehovah's Witness, faith, but certainly was insufficient in itself to permit a hearing examiner to definitely pass upon the defendant's subjective beliefs. The function of the Board is to:
* * * decide whether the beliefs possessed by a registrant are sincerely held, and whether they are, in his own scheme of things, religion.