Biggs, Adams and Max Rosenn, Circuit Judges. Adams, Circuit Judge (concurring).
The defendant-appellant Shomock was convicted of wilfully failing to submit to induction into the Armed Forces in violation of 50 U.S.C. App. Sec. 462(a). Motions for judgment of acquittal or for a new trial were denied and a sentence of three years imprisonment was imposed. Shomock has appealed. His Selective Service file is in evidence and shows that he registered with his Local Board in 1965. At that time he made no claim to being a conscientious objector. He was enrolled at the University of Pittsburgh and received a student deferment. Following graduation and entrance into a post-graduate language study, Shomock was reclassified 1-A. He appealed that classification but the Appeal Board affirmed the ruling of the Local Board. On January 20, 1969 he was ordered to report for induction on February 5, 1969. Shomock then requested that his induction be postponed until April in order to allow him to complete his then current graduate school term. He was granted this remission by the State Director. On March 17, 1969, the Local Board ordered Shomock to report for induction on April 7, 1969. On March 23, 1969, some two months after the receipt of the original order to report for induction, Shomock wrote the Board to request a conscientious-objector Form 150. On April 9, 1969 the Local Board reviewed his selective service file and found that the information he had submitted on the Form 150 did not warrant reopening his classification. Shomock's selective service file does not disclose why the Local Board rejected Shomock's claim. On March 24, 1969, Shomock sent a letter to the Board requesting postponement of his induction until April 18, 1969 because that was the date on which his current school term was to terminate. The request was granted and his induction was re-scheduled for May 7, 1969.
Pursuant to Shomock's claim for conscientious objector exemption the Local Board reviewed his file and granted him an interview on May 2, 1969. The Board decided that the information submitted at the interview did not warrant the reopening of Shomock's classification. He arrived at the induction station on May 7, 1969,*fn1 too late in the day to be processed. He returned for processing on May 8, 1969, and after passing his physical examination indicated that he was not going to remain at the induction station until the induction ceremony. He was advised that such action would constitute a criminal offense but he adhered to his intention and departed without complying with further processing procedures.*fn2
The appellant contends that our decision in Scott v. Commanding Officer, 431 F.2d 1132 (1970), requires Local Boards to consider post induction notice prima facie conscientious-objector claims on their merits and state their reason for denying such claims. This was the holding in Scott. It is difficult to see how the Scott case is relevant on this point, since Scott submitted to induction and then petitioned for a writ of habeas corpus on the same day as his submission. Id. at 1134. Scott alleged he had been illegally inducted. Scott ". . . promptly completed the Form 150 and sent it to the local board, together with letters from various individuals attesting to the nature and sincerity of his beliefs. On the day after the courtesy interview petitioner was informed by letter that 'It was the unanimous opinion of the board that the new information did not warrant reopening of your classification. . . .' No reason was offered why the information submitted did not warrant reopening and none is noted in petitioner's file."
Scott's ". . . induction was then rescheduled and he submitted to induction on January 16, 1970. [As we have said he petitioned the district court for a writ of habeas corpus on the same day. He alleged that he had been illegally inducted because his local board had failed to reopen his classification and grant him conscientious objector status and, alternatively, that his local board 'while purporting to refuse to reopen and consider anew petitioner's I-A classification, did in fact so reopen and consider the same anew but refused to grant petitioner . . . the rights of appellate review of the Board's refusal to reclassify petitioner to Conscientious Objector classification.'"*fn3
Shomock did not submit to induction but broke off the process and did not return.
Scott contended that his order for induction was invalid because his Local Board illegally refused to reopen his classification and grant him a conscientious objector status. Our opinion made it clear that the reopening of a Selective Service classification is governed by 32 CFR Sec. 1625.2 and, as was stated, the regulation was construed by the Supreme Court to require that where a registrant makes non-frivolous allegations of facts that have not been considered previously by his board and which, if true, would be sufficient under the regulation or statute to warrant granting the requested reclassification, the board must reopen the classification unless the truth of the new nonfrivolous allegations is "conclusively" refuted by other reliable information in the registrant's file. Mulloy v. United States, 398 U.S. 410, 416, 90 S. Ct. 1766, 26 L. Ed. 2d 362 (1970).
32 CFR Sec. 1625.2 provided that ".. the classification of a registrant shall not be reopened after the local board has mailed to such registrant an Order to Report for Induction . . . unless the local board first specifically finds there has been a change in the registrant's status resulting from circumstances over which the registrant had no control." (Emphasis added).
The opinion in Scott states that the case turns on the proper application of the quoted regulation to "a post-induction order claim for conscientious objector status" and a very important point at issue was whether a material change or "crystallization" of conscientious attitude can ever be due to circumstances beyond the registrant's control. We held that a registrant cannot " sincerely " turn his conscience on and off at will.*fn4 The key question, therefore, is whether the registrant " sincerely " entertains deeply held beliefs which qualify him as a conscientious objector. See Welsh v. United States, 398 U.S. 333, 90 S. Ct. 1792, 26 L. Ed. 2d 308 (1970). This court then cited the interpretation of the reopening regulation set out by Judge Friendly in Paszel v. Laird, 426 F.2d 1169, 1174 (2 Cir. 1970). This court agreed with Judge Friendly's conclusion that on being presented with "a postinduction-order prima facie conscientious objector claim" the local board may make one of four possible findings, and selected Judge Friendly's "(4)", viz., ". . . no conscientious objection before but conscientious objection after [notice of induction]." We based our decision on the fact that there was nothing in Scott's file to indicate that his asserted beliefs were not sincerely held and the board made no finding of insincerity. We then pointed out that the petitioner's file did not afford any basis for us to determine what the Board "did not believe and why" and ". . . [that] the legality of an induction order must, . . . be tested by the facts presented in the registrant's selective service file. . . . Since petitioner's file contains no statement of the reasons for the board's refusal to reopen his classification, we have no choice but to hold his induction order invalid and direct that the writ be issued."*fn5
It will be observed that the Scott proceeding involved habeas corpus and that Scott submitted to induction.*fn6 But nonetheless the case seems to turn on the issuance of an induction order and 32 CFR Sec. 1625.2 is directed to a request made prior to the issuance of an induction order after the Local Board has mailed a notice to report for induction to the registrant. In this case, as we have already stated, Shomock did not submit to induction.
The next case which requires consideration at length is Ehlert v. United States, 402 U.S. 99, 91 S. Ct. 1319, 28 L. Ed. 2d 625 (1971), a criminal proceeding. In Ehlert, the question was whether a Selective Service Local Board must reopen the classification of a registrant who claims that his conscientious objection to war "in any form crystallized between the mailing of his notice to report for induction and his scheduled induction date." Ehlert made no claims to conscientious objector status until after he received his induction notice. However, before the induction date he wrote to his Local Board and requested that he be allowed to present his claims to conscientious objector status. He stated that his conscientious objector views had matured, crystallized only after the induction notice which had made immediate the prospect of military service. The Local Board notified Ehlert that it would not reopen his classification because "the crystallization of his conscientious objection did not constitute the 'change in the registrant's status resulting from circumstances over which the registrant had no control.'"
The Local Board refused to reopen Ehlert's classification, as did the Board in the case at bar. Ehlert refused to submit to induction; was indicted; trial by jury was waived, and the District Court "holding that ripening of conscientious objector views could not be a circumstance over which a registrant had no control" and found the petitioner guilty. The Supreme Court stated that it had granted certiorari to resolve a ...