where a factual basis is stated by the board in the file supporting its conclusion of a registrant's insincerity, the district court must treat the board's determination of the registrant's I-A classification as final.
This court, in following the analysis of the Third Circuit in United States v. Brown, 423 F.2d 751 (1970), finds that the record in the instant case contains a sufficient basis of fact supporting the Department of Justice's conclusion of insincerity and its recommendation to deny the I-O classification which the Appeals Board adopted. The Brown case involved a Jehovah's Witness who was convicted under 50 U.S.C. App. § 462 for refusing induction. The Appeal's Court upheld the board's denial of a I-O and I-A-O classification based upon a Department of Justice's recommendation.
The court first held that "[a] conscientious objector exemption must be based upon 'subjective religious beliefs of the particular individual, not upon the religious tenets of an organization of which he is a member.'" Id. at 754, citing Olguin v. United States, 392 F.2d 329, 331 (10th Cir. 1968); Keefer v. United States, 313 F.2d 773, 776-777 (9th Cir. 1963). The Brown court held secondly that the burden of proof is upon the registrant to establish his entitlement to a conscientious objector classification and that the registrant failed to meet that burden. Id. 423 F.2d at 754. The approach taken in Brown is directly applicable to this case. The Department of Justice not only concluded that Mr. Griffin had relied solely upon his religious status to establish his exemption but went further and set out bases of fact which supported their conclusion that Mr. Griffin was insincere in his claim to be a Jehovah's Witness.
The defendant also attacks Mr. Griffin's I-A classification on the ground that less than a quorum of the Local Board resided within the confines of the district served by that board. The validity of the defense was recognized by this district in United States of America v. Williams, 317 F. Supp. 1363 (E.D. Pa. 1970) decided by Judge Masterson. In that case the district court ruling the I-A classification to be invalid held that the burden was upon the government to show that the board was validly constituted whenever the issue was raised by a showing that the board members did not reside within the district. Dealing with the same issue, Judge Fullam in United States of America v. James Richard Smith, Criminal No. 70-140 (E.D. Pa. Filed February 4, 1971), refused to recognize the validity of this defense.
In this case, however, the defendant has failed to meet his burden of introducing evidence that board members did not reside in the district,
and, therefore, this Court, without ruling on the validity of this defense, finds that even if it were available it would not have been properly proved in this case. Where, as here, the record before the Court is barren of any contrary evidence, there is a rebuttable presumption in favor of the regularity of board proceedings. United States v. Chaudron, 425 F.2d 605, 610 (8th Cir. 1970); Rhyne v. United States, 407 F.2d 657, 660-661 (7th Cir. 1969); Greer v. United States, 378 F.2d 931, 933 (5th Cir. 1967); Keene v. United States, 266 F.2d 378, 380 (10th Cir. 1959). The burden of showing any procedural irregularity giving rise to substantial prejudice properly rests upon the registrant-defendant, not upon the government. United States v. Chaudron, supra 425 F.2d at 610; Little v. United States, 409 F.2d 1343, 1345 (10th Cir. 1969); United States v. Sandbank, 403 F.2d 38, 40 (2d Cir. 1968), cert. denied, 394 U.S. 961, 89 S. Ct. 1301, 22 L. Ed. 2d 562 (1969); Lowe v. United States, 389 F.2d 51 (5th Cir. 1968). The defendant in this case has not met this burden because he has failed to submit any evidence that the board was improperly constituted.
This Court having rejected the defendant's claims that the board's classifying him I-A was improper, finds the defendant guilty of failing to perform a duty required by the Selective Service by refusing induction on July 19, 1968.
CONCLUSIONS OF LAW
1. The Court has jurisdiction over the parties and the subject matter, and venue is properly within this district.
2. On July 19, 1968, the defendant refused to be inducted into the Armed Forces as ordered by his local board.
3. The selective service file of the defendant reveals a basis in fact for the draft board's refusal to classify defendant I-O.
4. The local draft board was properly constituted and its actions taken in respect to defendant valid.
5. The defendant's refusal to be inducted into the Armed Forces constituted a violation of the Selective Service Act.