in this case, the evidence which was before the board overwhelmingly justified the board's refusal to classify the registrant as a conscientious objector. A case could arise in which the appellate hearing would be decisive in that the evidence before the local board would have been either conflicting or favorable to a registrant's contention; then, on appeal, the failure to send to the registrant a 'fair resume' would prejudice his position by denying to him information necessary for him to properly prepare his case for appeal. In such a case, it would be the duty of the trial court to decide whether the resume furnished the defendant was 'fair.' But in this case, the statements by defendant to the board and his numerous clear documentary manifestations of a lack of 'religious training and belief' -- a necessary element for a conscientious objector's classification -- clearly established the basis for the local board's determination. Moreover in response to defendant's request for information 'as to the general nature and character of any evidence in (the possession of the hearing officer) which is unfavorable to and tends to defeat' defendant's claim, the hearing officer responded: 'The file clearly shows that you disclaim having any religion; that as to your objections to entering military service your reasons are philosophical, rather than religious.' Thus defendant was apprised fully of the nature of the adverse evidence and could properly prepare for his appellate hearing.
Defendant argues that he did not receive a fair hearing before the hearing officer because he was prohibited from making a complete presentation of his claim.
Defendant testified at the trial he was prohibited from reading or filing a prepared statement setting forth the same explanation of the nature of his belief as was before the board. The advisory opinion by the Department of Justice sent to the appeal board, however, contains the following paragraph:
'Registrant personally appeared at the hearing and stated that he is not an atheist but an agnostic and that in his mind 'philosophy' and 'religion' are interchangeable words. From this he argued that his philosophy constitutes a very real and personal religion of his own and a basis for his conscientious objector claim. He went on to say that there is a basis for his beliefs in the Methodist Church which he attended as a youth.'
The 'hearing' referred to in that opinion letter must refer to the hearing before the hearing officer because the transcript of the board hearing does not contain all of the statements described in that letter. Thus, it appears that defendant did, in fact, describe the nature of his belief to the hearing officer. I cannot find from the evidence before me that defendant did not receive a fair hearing on the administrative appellate level.
Finally, defendant argues that 'he was denied procedural due process when the Department of Justice made the arbitrary determination that defendant is not a religious objector.' The opinions in Estep v. United States, 327 U.S. 114, 66 S. Ct. 423, 427, 90 L. Ed. 567 and Cox v. United States, supra, hold that the 'courts are not to weigh the evidence to determine whether the classification made by the local boards was justified', so that if there is a 'basis in fact' in the documentary evidence and the registrant's testimony before the board, then it cannot be said that the classification is arbitrary. I hold that there is a basis in fact for defendant's classification, such basis existing in the aforementioned statements written by defendant as answers to the classification questionnaire and to the Special Form for Conscientious Objector and also his testimony before the board. The statutory definition of conscientious objector in 50 U.S.C.A.Appendix, § 456(j) is:
'* * * any person * * * who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form. Religious training and belief in this connection means an individual's belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but does not include essentially political, sociological, or philosophical views or a merely personal moral code.'
I find that the following facts are bases upon which the board could have properly based its denial of defendant's claim to a conscientious objector's classification within the meaning of the statutory definition:
1. Defendant carefully crossed out the words 'religious training and' when signing the statement in his classification questionnaire to the effect that he conscientiously objected to war.
2. Defendant carefully crossed out the words 'religious training and' when signing the claim for exemption on the Special Form for Conscientious Objector.
3. On the Special Form defendant wrote, in describing the nature of his belief, that his belief was 'philosophical rather than religious.'
4. On the Special Form defendant wrote, in explaining the method by which he acquired his belief: 'I acquired my belief by thinking, during the past 19 years. No person whom I know holds the same or similar beleifs and I have not been taught in any way by a statement of such beleifs
5. During the board hearing, defendant's several statements that he did not believe in a Supreme Being.
Having reached these conclusions of law and fact, it is the decision of this court that defendant's classification by the local board was not arbitrary and capricious, and that he was not denied any of his procedural rights under the Constitution. The defendant is guilty as charged in the indictment.
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