On petition for writ of certiorari to the United States Court of
Appeals for the Fifth Circuit.
The petition for a writ of certiorari is denied.
Mr. Justice DOUGLAS, dissenting.
The petitioner, convicted of failure to report for induction, 50
App. U.S.C. 462(a), challenges the induction order on the ground
that he was improperly denied exemption from selective service as a
conscientious objector. Petitioner completed high school under a
student deferment in 1969. In January 1970, he was reclassified I-A
and was ordered to report for a pre-induction physical examination
the following October. In January 1971, petitioner filed an
application for reclassification as a conscientious objector. His
local selective service board rejected this claim advising
petitioner by letter:
'Your claim as a conscientious
objector was considered by the Board on February 12, 1971, and in
their opinion your professed belief in opposition to war is not a
compelling or controlling force in your life, but is simply an
expedient to avoid military service at this time and that you are
not sincere in your belief.'
Petitioner appealed to an Appeal Board, which affirmed without
opinion the local board's denial of exemption. The Court of
Appeals, applying a rule announced in United States v. Stetter,
445 F.2d
472 (CA5 1971), that when an applicant makes a prima facie case
for exemption as a conscientious objector the board must give a
statement of reasons for rejection of the application, construed
the local board's letter to petitioner as a finding of insincerity
of petitioner's asserted beliefs. The court then concluded that a
finding of insincerity could be based upon the fact that petitioner
waited for more than a year after his reclassification as I-A to
file his application for exemption and did so only after
passing
Page 419 U.S.
938 , 939
his pre-induction physical examination. Accordingly, the court
found that the board's 'reason' had a basis in the record and
affirmed petitioner's conviction.
Elsewhere I have expressed my view that an applicant for
exemption as a conscientious objector is entitled, under Due
Process Clause of the Fifth Amendment, to a hearing before a local
board on his claim. Fein v. Selective Service System,
405 U.S.
365, 382 ( 1972) (dissenting opinion). A statement of reasons
accompanying a decision adverse to the applicant is no less a
requirement of due process. Without a statement of reasons there is
simply no way to ascertain whether the board has acted within its
powers as prescribed by law. [
Footnote 1] See Goldberg v. Kelly,
397 U.S.
254, 271 (1970); Joseph v. United States,
405 U.S. 1006 (1972) (
dissenting opinion). The only statement afforded petitioner is
contained in the local board's February 1973 letter, a document
insufficient in two respects to sustain the board's denial of
exemption.
First, the board's statement that petitioner's belief 'is not a
compelling or controlling force in your life' gives little
confidence that the board applied the correct legal standard for
exemption under 50 App.U. S.C. 456(j). The statute authorizes
exemption for any person 'who, by reason of religious training and
belief, is conscientiously opposed to participation in war in any
form.' In Clay v. United States,
403 U.S.
698, 700 (1971), we said:
'In order to qualify for
classification as a conscientious objector, a registrant must
satisfy three
Page 419 U.S.
938 , 940
basic tests. He must show that he is conscientiously opposed to
war in any form. Gillette v. United States,
401 U.S. 437 []. He must
show that this opposition is based upon religious training and
belief, as the term has been construed in our decisions. United
States v. Seeger,
380
U.S. 163 [, 13 L. Ed. 2d 733]; Welsh v. United States,
398 U.S. 333 [, 26 L. Ed.
2d 308]. And he must show that this objection is sincere. Witmer v.
United States,
348
U.S. 375 []. In applying these tests, the Selective Service
System must be concerned with the registrant as an individual, not
with its own interpretation of the dogma of the religious sect, if
any, to which he may belong. United States v. Seeger, supra;
Gillette v. United States, supra; Williams v. United States, [5
Cir.],
216 F.2d
350, 352.'
The board's cryptic 'compelling and controlling force' language
in this case may have reflected a conclusion that although
petitioner met the three tests above he did not qualify for an
exemption because his belief was not life-long. Such a decision
would have been entirely improper, since, assuming a sincere
belief, the length of time petitioner had held it would be
irrelevant. Schuman v. United States,
208 F.2d
801 (CA9 1953); Taylor v. Chaffee, 327 F. Supp. 1131 (CD
Cal.1971). Or the board might have concluded, equally erroneously,
that petitioner did not qualify for exemption because his belief
had not heretofore 'compelled' him to express it in some organized
activity.
To be sure, the board's decision might have been based on a
wholly proper application of the legal standard. The difficulty is
that we cannot tell from the 'statement' the board has given. It is
a 'simple but fundamental rule of administrative law . . . [that
if] the administrative action is to be tested by the basis on which
it purports to rest, that basis must be set forth with
Page 419 U.S.
938 , 941
such clarity as to be understandable. It will not do for a court
to be compelled to guess at the theory underlying the agency's
action.' SEC v. Chenery Corp.,
332 U.S. 194, 196-197,
1577. The Court of Appeals viewed the board's statement as a denial
of the exemption because of insincerity. But the 'compelling and
controlling force' language appeared in addition to the statement
that petitioner was not sincere, with no indication whether the
former contributed to the rejection or served merely as a
restatement of the latter ground. The board's decision can not be
sustained on the basis of the sincerity finding alone unless it is
clear from the record that the board intended it to be a wholly
independent ground of decision. Cf. Sicurella v. United States,
348 U.S. 385
(1955).
Even if the board's statement is viewed solely as a rejection of
petitioner's application because of insincerity, it will not
support the board's action because it contains no reasons but
merely the board's conclusion. Applicants for exemption as
conscientious objectors may be found insincere where the belief
claimed is inconsistent with prior statements or conduct of the
applicant, or where the applicant's demeanor in an appearance
before the board deprives him of credibility. Witmer v. United
States,
348 U.S.
375. Typically, reviewing courts have perused the record in
order to discover evidence that would furnish a 'basis in fact' for
a denial of exemption because of insincerity. See, e. g., United
States v. Abbott,
425 F.2d
910 (CA8 1970); United States v. Weaver,
423
F.2d 1126 (CA9 1970). It is time to demand more of the local
board: A statement that identifies the evidence supporting the
conclusion that the applicant is not sincere. A statement of such
specificity is indispensible to assure that the board has reasoned
from
Page 419 U.S.
938 , 942
the evidence. [
Footnote 2]
Such a statement will facilitate review; and requiring the
familiarity with the record necessary to its preparation will
enhance the decision-making process at the administrative level.
Without such a statement, a board may too easily shield
inattentiveness or misapplication of the law from judicial review
behind the screen of a conclusory finding of insincerity. [
Footnote 3] This danger is especially
real where, as here, the finding of insincerity is merely tacked
onto other language that betrays possible confusion about the legal
standard.
I would grant certiorari to consider the adequacy of the
administrative action.
Footnotes
Footnote 1 A statement of
reasons accompanying an adverse decision by a local or appeal board
is now required by the Military Selective Service Act, 50
App.U.S.C. 471a(b)(4), but this provision of the statute is
inapplicable to petitioner's case because of its effective
date.
Footnote 2 Such a
requirement, advocated by several commentators, see Note,
Administrative Findings in Selective Service Litigation, 57
Va.L.Rev. 477, 485 (1971); Hansen, The Basis in Fact Test In
Judicial Review Of Selective Service Classifications: A Critical
Analysis, 37 Brooklyn L.Rev. 453 (1971 ), has recently gained
approval of two courts of appeals. See United States v. Stetter,
445 F.2d
472, 485 (CA5 1971); United States ex rel. Hemes v. McNulty,
432 F.2d
1182, 1187 (CA7 1970).
Footnote 3 Instances of
board members' lack of familiarity with all the facts relevant to a
classification decision are, regrettably, amply documented. See
United States v. Thompson,
431 F.2d
1265 (CA3 1970); United States v. Ford,
431
F.2d 1310 (CA1 1970). See also Report of the National Advisory
Commission on Selective Service 20-21 (1967).
