United States v. Jerry Paul Pritchard

413 F.2d 663, 1969 U.S. App. LEXIS 11807

• Court: Court of Appeals for the Fourth Circuit
• Decided: June 23, 1969
• Docket: 12974
• Status: Published

Opinions

BUTZNER, Circuit Judge:

Jerry Paul Pritchard appeals his conviction for refusing to be inducted into the armed forces in violation of 50 U.S. C. App. § 462(a). We affirm.

Pritchard completed a selective service classification questionnaire for his local board in July 1963. He was granted a II-S classification while attending North Carolina State University. After leaving college and being classified I-A in February 1966, Pritchard applied for classification as a conscientious objector. 50 U.S.C. App. § 456(j). When this was denied, he sought a personal appearance, at which he presented a lengthy explanation of his beliefs. Again classified IA, he appealed. The appeal board asked the Department of Justice for an advisory opinion. 50 U.S.C. App. § 456 (j).¹ After an investigation by the F.B.I., the Department conducted a hearing at which Pritchard presented his case. Subsequently, the hearing officer recommended that Pritchard be granted conscientious objector status. This recommendation, however, was rejected by the Department’s conscientious objector section, and a final recommendation; adverse to Pritchard, was sent to him and the appeal board. A résumé of the F.B. I. investigation was also sent. Prit-chard was allowed thirty days in which to reply, 32 C.F.R. § 1626.25(e) (1967 ed.), and he did so. Later he was again classified I-A and ordered for induction, which he refused.

Pritchard argues that it was a violation of due process for the Department not to send him and the appeal board a copy of the hearing officer’s favorable report. And he claims errors in the Department’s recommendation to the appeal board made his I-A classification arbitrary and capricious.

In Gonzales v. United States, 348 U.S. 407, 75 S.Ct. 409, 99 L.Ed. 467 (1955), the Supreme Court held that § 6(j) of the Universal Military Training and Service Act and its implementing regulations required that a copy of the Department’s recommendation to the appeal board be furnished the registrant and that he be afforded an opportunity to reply. Only this reading of the statute and the regulations, the Court concluded, was compatible with procedural due process.

However, due process does not require that the hearing officer’s report be furnished the registrant or the appeal board. This was the holding in a second Gonzales case, which denied a claim similar to Pritchard’s on the ground that the report is but a part of the whole intradepartmental process that leads to the final recommendation to the appeal board. The requirements of due process are satisfied when the registrant has a reasonable opportunity, which Pritchard had here, to contest before the appeal board statements appearing in the Department’s recommendation. Gonzales v. United States, 364 U.S. 59, 80 S.Ct. 1554, 4 L.Ed.2d 1569 (1960).

Gonzales II recognizes that in exceptional circumstances fairness might require production of the report,² but this is not such a ease. The Department’s recommendation referred to Pritchard’s hearing, set forth the findings of the hearing officer that were favorable to Pritchard, and noted his conclusion that Pritchard should be exempt from combatant and noncombatant service. Prit-chard has failed to show why this summary was inadequate.

The Department’s recommendation contained factual errors, which Pritchard says made his I-A classification arbitrary and capricious. It stated that Pritchard joined the church in 1965, when it was actually 1955. And it mistakenly cited the minister of his church for a statement, actually made by a member of the congregation, that Pritchard “was not an obviously religious individual and took no active part in the church activities other than attending at religious worship.” The short answer to this contention is that Pritchard was furnished a copy of the Department’s recommendation as well as a résumé of the investigation and granted thirty days in which to correct any mistakes. Furthermore, Pritchard took advantage of the opportunity and sent a rebuttal which the appeal board was required to consider. 32 C.F.R. § 1626.25(e) (1967 ed.). He noted the error in the attribution of the statement. The board could verify this information because it was correct in the résumé. Pritchard apparently overlooked the error in the date that he joined the church. But the correct date had been given on his conscientious objector form.

In any event, a fair reading of the Department’s recommendation and the rés-umé, to which it frequently referred, shows that Pritchard’s classification did not turn on the date he joined the church or the source of information about his church activities. Emphasis was placed on other factors, which, we find, constituted a basis in fact for his I-A classification.

Judicial review of a draft board’s classification is limited to determining whether it had a basis in fact. Estep v. United States, 327 U.S. 114, 122, 66 S.Ct. 423, 90 L.Ed. 567 (1946). And that means in the case of a conscientious objector, where “the issue is the registrant’s sincerity and good faith belief, then there must be some inference of insincerity or bad faith.” Wit-mer v. United States, 348 U.S. 375, 382, 75 S.Ct. 392, 396, 99 L.Ed. 428 (1955). When conflicting inferences can be drawn from the same evidence, there is a basis in fact, and the courts are not free to say that a board’s denial of conscientious objector status was wrong. That is the situation here.

Pritchard’s first claim to conscientious objector status was made two and a half years after he had filed his classification questionnaire and at a time when he had lost his student deferment and been classified I-A. Yet he claimed at his personal appearance that he had been opposed to war and service in the armed forces ever “since he was old enough to realize what war is.” Also, Pritchard had participated in ROTC during his first year at college without complaint. He explained that he took ROTC only because it was a required course at the college to which he had a scholarship and that he did not feel he was “serving” the military in ROTC. Also, most of the eleven people interviewed who knew Pritchard well were impressed by his sincerity. But only two remembered his saying anything in opposition to participation in war, and the more specific of the two knew Pritchard only after he had made his claim as a conscientious objector. These inconsistencies, taken together, constitute a basis in fact for Pritchard’s I-A classification. See United States v. Corliss, 280 F.2d 808, 812 (2d Cir.), cert. denied, 364 U.S. 884, 81 S.Ct. 167, 5 L.Ed.2d 105 (1960); Campbell v. United States, 221 F.2d 454, 457 (4th Cir.1955); United States v. Borisuk, 206 F.2d 338, 343 (3d Cir.1953).

Finally, we find that the district judge did not abuse his discretion in denying a continuance. We have examined the other contentions Pritchard makes and conclude they do not require reversal.

Affirmed.

1 . The Military Selective Service Act of 1967 amended § 456(j) to eliminate the requirement for a hearing by the Department of Justice.

2 . Gonzales v. United States, 364 U.S. 59, 65, 80 S.Ct. 1554, 4 L.Ed.2d 1569 (1960). Exceptional circumstances were present in United States v. Purvis, 403 F.2d 555 (2d Cir. 1968).