United States v. Donald Lloyd Hulsey

463 F.2d 1071
CourtCourt of Appeals for the Seventh Circuit
DecidedJune 5, 1972
Docket18982
StatusPublished
Cited by7 cases

This text of 463 F.2d 1071 (United States v. Donald Lloyd Hulsey) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Donald Lloyd Hulsey, 463 F.2d 1071 (7th Cir. 1972).

Opinions

KNOCH, Senior Circuit Judge.

Defendant-appellant, Donald Hulsey, has appealed his conviction in a trial by the District Judge, trial by jury having been waived on indictment charging refusal to submit to induction as ordered by Selective Service Local Board No. 137, Eewanee, Illinois. He was committed to the custody of the Attorney General for a period of three years.

It is defendant’s position that in the oral and written statements he made, he described such prima facie compliance with the legal requirements for classifi[1072]*1072cation as a conscientious objector as to require a statement of reasons for denial of his request.

He asserts that at his personal appearance before the Local Board, no member questioned the legal sufficiency of his beliefs.

When defendant, who (after registration with Local Board No. 137 in May, 1963, had been classified I-A) enrolled at Northern Illinois University, he was granted a student deferment and classified 2-S.

On May 29, 1968, the Board received notice from the University that defendant was

“No longer enrolled full time (withdrew).”

He was reclassified I-A on July 11, 1968 and so notified on July 22, 1968.

On September 4, 1968, the Board received a letter from defendant in which he stated:

“By reason of religious training and belief, I am conscientiously opposed to participation in war in any form. ...”

Pursuant to his request a Conscientious Objector form SSS Form 150, was mailed to him the same day. The form stated that it was to be returned prior to September 14,1968.

On October 3, 1968, when defendant’s file was reviewed the Board’s record noted:

“All evidence considered. SSS Form 150 not returned. No change in registrant’s status. Request registrant to appear at next board meeting.”

When defendant brought in his SSS Form 150 on October 30, 1968, he was notified of the Board's decision and request of October 3, 1968, and on November 1, 1968, a letter was sent inviting him to the Board meeting on November 7,1968. He did not attend.

Although his letter of September 4, 1968, based his conscientious opposition to war on religious training and belief, defendant’s Form 150 attributed his opposition to a supreme moral force which he specifically distinguished from traditional concepts of God, quoting such writers as Paul Tillich, Lao Tzu, John Dewey, Benjamin Franklin and William James. He said his beliefs had been expressed only privately, that his faith was still growing, that he still questioned it and experienced doubts in regard to it. He said, however, that he believed in the use of physical force when there was a legitimate end which force might effect, subject to its being used only when all other forms for persuasion had failed and then only in the least amount necessary to effect the end sought. Defendant feels that this statement cannot be taken to mean that he would ever justify war to achieve a particular end because he also said elsewhere he did not consider war to be a legitimate end or a legitimate means and agreed with Aldous Huxley that violent or immoral means can never produce a peaceful end.

We cannot agree that defendant unambiguously established a sweeping opposition to all wars in these statements which he made a part of his Form 150. At the Board meeting on November 7, 1968, defendant was again classified I-A.

Under date of December 30, 1968, he wrote requesting a personal appearance before the Board which was granted for January 16, 1969. He arrived late. A transcript of the questions and defendant's answers appears in the record. His replies are frequently evasive. For example, when he had said he believed in a free society, he was asked if he believed in defending it against communism, to which he answered that he did not accept the theory that communists were trying to take over the world. When asked if he would be willing to protect America, he said he might participate in a theocratic war but did not know of United States involvement in any such wars. When asked if he would defend America according to his moral principles, he said the United States had never been involved in a war because of principles; that he believed in America [1073]*1073and would defend it in an abstract sense. Defendant’s answers at the personal appearance did not cure the ambiguities of his earlier written statements. The Board again classified defendant I-A without stating the reasons for its action.

On appeal, the classification of the Local Board was upheld by the Appeal Board. Defendant reported as ordered on August 11, 1969, but refused to submit to induction.

Defendant relies on United States v. Lemmens, 7 Cir., 1970, 430 F. 2d 619, 624 and United States ex rel. Hemes v. McNulty, 7 Cir., 1970, 432 F.2d 1182, 1186-1187. In those cases this Court held that where a registrant has described a belief which on its face fulfills the legal requirements and the local board does not state its reason for rejection, and this Court cannot otherwise determine with any degree of assurance whether the decision made by the Board properly supported the rejection and had a basis in fact, then the Court should hold the classification invalid. Clay v. United States, 1971, 403 U.S. 698, 700, 91 S.Ct. 2068, 29 L.Ed.2d 810, sets out the basic criteria as developed in prior decisions for a prima facie claim of conscientious objector status as (1) conscientious objection to war in any form, (2) based on religious training and belief as construed in prior decisions, (3) which is a sincere objection. See United States v. Seeger, 1965, 380 U.S. 163, 176, 85 S.Ct. 850, 13 L.Ed.2d 733, which construed religious training and belief to be a sincere meaningful belief occupying a place parallel to that filled by God in the lives of those admittedly qualified for the exemption.

The burden is on the registrant to provide the information which clearly establishes his right to the classification he seeks. McCoy v. United States, 5 Cir., 1968, 403 F.2d 896, 899-900.

We agree with the government that Mulloy v. United States, 1970, 398 U.S. 410, 90 S.Ct. 1766, 26 L.Ed.2d 362, and United States v. Freeman, 7 Cir., 1967, 388 F.2d 246, cited by defendant, are not helpful here. In those cases the issue was whether a basis for reopening the classification was presented. In the matter before us, the classification was reopened.

While a late presentation of beliefs is surely not adversely conclusive, the various delays in this case coupled with ambiguous and evasive statements, would not support a prima facie showing of a sincere conscientious objection, based on religious training and belief, to war in any form.

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United States v. Donald Lloyd Hulsey
463 F.2d 1071 (Seventh Circuit, 1972)

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