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United States v. Turner

decided: February 10, 1970.


Biggs, Kalodner and Freedman, Circuit Judges. Kalodner, Circuit Judge (concurring).

Author: Freedman


FREEDMAN, Circuit Judge.

Defendant appeals from his conviction and sentence to imprisonment for a term of five years for wilful failure to submit to induction into the Armed Forces in violation of 50 U.S.C. App. § 462. He claims he was denied due process by the refusal of his local selective service board to reopen his 1-A classification and consider his claim to conscientious objector status before he was called for induction.

The Selective Service Regulations recognize that "no classification is permanent" (32 C.F.R. § 1625.1). They therefore provide for the reopening and consideration anew of a registrant's classification where new facts are presented which if true would justify a change in classification. Although this provision is written in discretionary rather than mandatory terms,*fn1 the rule is well established that where one who has originally made no claim to conscientious objector status and has been classified 1-A later seeks conscientious objector status because of changed circumstances the board is required to reopen his classification if the claim which he has presented is adequate on its face, and only then may the board determine the merits of the claim.

There is a substantial reason which underlies the judicial doctrine. For if the request to reopen is granted the board must classify the registrant de novo*fn2 and mail notice of the new classification to him,*fn3 which then forms the basis for the registrant's right to appeal and appear personally before the board.*fn4 On the other hand, when the board refuses to reopen a classification, there is no right of appeal.*fn5 It would therefore be a denial of procedural due process if local boards prevented administrative appeal from a refusal to reclassify by casting it in the form of a refusal to reopen.*fn6 This principle has special application in claims to conscientious objector status, which is specifically granted as a statutory right.*fn7 Moreover, the nature of the conscientious objector's claim forbids him to submit to induction before seeking habeas corpus relief, the remedy available in the usual case.*fn8

Thus, the question before us relates to the board's action in dealing with defendant's efforts to have his classification reopened and to present his claim for conscientious objector status.

Defendant registered with the local board in Newark under the Selective Service System promptly on attaining the age of 18 years. He filled out and returned a standard Classification Questionnaire without claiming to be a conscientious objector and made no request for the special form (SSS No. 150) for such a claim. In January 1965 he was duly classified 1-A. He did not appeal from the classification, but in July 1965 requested and received from the board the conscientious objector form.

On November 1, 1965, the board notified defendant to report for a physical examination on November 16. On November 15, the day before he was to be examined, he appeared personally at the office of the board and spoke with Mrs. Mary Brady, the board's clerk, who immediately made this record of the visit for the board's files:

"Registrant appeared at Local Board stated that he was a conscientious objector but had not sent his SSS 150 back because his mother had torn it up. Registrant stated he was not going to report for preinduction physical examination due to the fact that he was an Islam. I asked him if he would write this information to us."

On the same day defendant mailed a letter to the board specifically claiming that he was a conscientious objector.*fn9

When defendant did not appear for the physical examination on November 16, the board forthwith sent him a delinquency notice which he received on the following day, November 17. Defendant immediately appeared again at the board's office and spoke with Mrs. Brady. Her recorded notation of his visit which appears in the file shows that he evidently had not expected to receive the delinquency notice.*fn10 He asked to see someone in higher authority, and she told him he could come to a meeting of the board which was scheduled for November 19.

It is therefore clear from the government's case that when defendant told the clerk on November 15 that he was a conscientious objector and therefore would not report for the physical examination next day, he was informed that he should send this information to the board in writing, but was not told whether the notice to report next day was still in effect.*fn11 As a result, his failure to report for the physical examination made him a delinquent subject to immediate induction.*fn12 Although at this same interview he also told the clerk that he had not sent his conscientious objector form to the board because his mother had torn it up, he was not advised to obtain and fill out a fresh form, nor was he told that it would be necessary for him to raise his conscientious objector claim in a more detailed manner than his simple statement to the clerk.

The testimony of the clerk reveals the existence of an adversary policy toward the defendant, as if he were an antagonist against whom the board was on guard rather than a young man dealing with his own government without the aid of counsel in a rather technical area in which he evidently showed himself, if not incoherent, at least lacking in ability to advance his claim and to maintain his rights. Instead of reaching out to be helpful to him, the board warily maintained its guard against him and declined to give him any assistance, even though he did not know enough to ask for it in the requisite form. It is clear that the clerk would volunteer no information to him and would give him only what he specifically requested. Far from following the principle of uberrima fides regarding defendant's attempts to present his conscientious objector claim, the board acted in a manner more appropriate to a common law pleader. Knowing that defendant claimed conscientious objector status, and believing that the filing of a Form 150 was a necessary prerequisite to a claim,*fn13 the clerk nevertheless made no effort to provide defendant with a fresh Form 150, simply because he did not specifically and expressly request one.*fn14 Even if the clerk erred in thinking that the filing of Form 150 was a prerequisite to reopening in this case,*fn1 ...

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