acknowledged receipt of his orders and renewed his request for a personal appearance on his conscientious objector claim. He explained that he discarded the first form SSS-150 sent to him by the Board because he became confused about the religious aspects in the form. He requested a second SSS-150 form and stated, "I am a conscientious objector and I now realize that I can apply".
Petitioner's file was forwarded to the Delaware State Selective Service headquarters which advised the local board to cancel the outstanding induction orders and to consider petitioner's conscientious objector claim after a personal appearance. The orders were cancelled on March 25, 1970.
Petitioner thereafter submitted a completed form SSS-150 along with several letters in support of his conscientious objector petition which attested to the strength of his beliefs. The completed form SSS-150 along with the accompanying letters and additional letters furnished by petitioner, make out a prima facie case for conscientious objector classification.
On May 12, 1970, petitioner personally appeared before the Board and after meeting with him, the Board, on the same day, classified petitioner, by a vote of 3-0, 1A. The Board stated no reasons for denial of petitioner's conscientious objector claim. On August 10, 1970, the State Appeal Board affirmed and continued petitioner's 1A classification.
After this appeal was denied, petitioner, on September 1, 1970, enrolled for another semester of graduate study at the University of Delaware. He also signed a contract with the school as a graduate assistant. The local board was not advised of this fact until September 25, 1970. This was after petitioner had been ordered to report for induction for the third time. (September 18, 1970). Petitioner requested cancellation of this induction order. The State Director, although not unhesitatingly, granted petitioner's latest request and postponed the scheduled induction until December 30, 1970, to allow petitioner to finish the school semester he had already started.
On December 30, 1970, petitioner presented himself at the induction station and submitted to induction, and at the same time, his attorney filed a petition for a temporary restraining order and writ of habeas corpus, which is presently before the Court.
The Government has stipulated to the fact that two of the five members of petitioner's local draft board, Local Board No. 5 of Wilmington, Delaware, are residents of the county, but not of the area in which the local board is located.
Petitioner contends, relying on Scott v. Commanding Officer, 431 F.2d 1132 (3rd Cir. 1970) and United States v. Broyles, 423 F.2d 1299 (4th Cir. 1970), that his classification which resulted in his reporting for induction was invalid because his local board failed to state its reasons for denying his conscientious objector claim. Petitioner contends that the Board's failure to disclose its reasons denied him the right to an effective administrative appeal.
The Government, on the other hand, contends first that petitioner's classification does not fall within the purview of Scott because (1) Scott is factually distinguishable from the instant case in that Scott dealt with a post-induction order -- "crystallization"
and (2) in Scott there was nothing in the petitioner's selective service file to cast doubt upon his sincerity, whereas here petitioner's file on its face demonstrates adequate bases in fact concerning sincerity to support the local board's action.
Additionally, the Government contends that the Scott case should not be retroactively applied to an administrative proceeding which took place a full four months prior to the time it was publicly announced.
The arguments advanced by the Government are not unappealing to this Court. However, it appears that they have been rendered academic by the Third Circuit's most recent expression in United States v. Speicher, 439 F.2d 104 (3rd Cir. March 11, 1971).
In Speicher, a pre-induction order case, the defendant appealed a judgment of conviction for refusing to submit to induction into the armed forces, contending that his order to report for induction was invalid because his local board did not state its reasons for rejecting his conscientious objector claim. There, the Government argued, as here, that Scott should be limited to its particular facts. The Court, however, did not choose to adopt the Government's position. The Court noted that in Scott the general rule was adopted that "where the Selective Service System gives no reasons for its rejection of a prima facie conscientious objector claim, the resulting induction order is invalid". Speicher, supra, 439 F.2d at p. 107. The Court then noted that:
"The case is controlled by Scott unless we accept the Government's contention that the Scott holding should be restricted to those cases in which the Local Board, by refusing to reopen when presented with a prima facie claim for reclassification, deprives the registrant of the right to administrative review (citation omitted). So to read Scott, however, ignores the reasoning of that decision and of the primary case on which it relied." Speicher, supra, p. 107.