Biggs, Aldisert and Stahl,*fn1 Circuit Judges.
This appeal from a judgment of conviction for refusal to submit to induction into the armed services requires us to decide if appellant was denied basic fairness in the selective service procedures which resulted in rejection of his claims for exemption. Appellant's primary contention is that a Department of Justice recommendation to the appeal board was based in part on a legally erroneous conclusion. Alternatively, he argues that the selective service system denied him due process on the local board and appeal board levels.
Brown, a member of the Jehovah's Witnesses religious sect, requested classification as a conscientious objector (I-O) or minister (IV-D).*fn2 His local Philadelphia board granted him a personal appearance, denied these requests, and classified him I-A in August, 1964. In October he addressed a letter to the "Board of Appeal," and in addition to requesting a reconsideration of his case on the basis of "new evidence strengthening the force of my conviction with the ministry," stated: "Approximately a year or more ago I voluntarily summited [sic] to a military examination for the purpose of induction into the Armed Forces of the United States. This effort was reversed as my present goal came clearer into focus. My physical disabilities (poor vision) at the time of the examination are currently on record." In December his file was sent by the local board to the appeal board; five days later it was dispatched to the Department of Justice for a recommendation. More than a year later, in March, 1966, appellant appeared before a department hearing officer where he testified personally and was afforded the opportunity of presenting evidence in his behalf.
Seven months later the Department of Justice returned the file to the appeal board, stating "that the registrant has failed to sustain his burden of proving his conscientious objector claim and recommending * * * that the claim be not sustained and that he not be classified in Class I-O or in Class I-A-O." Upon being advised of this recommendation, appellant replied to the Department of Justice requesting "a further opportunity be given me to present the facts and further information in support of my claim as a minister of Jehovah God," and also forwarded to the appeals board a written statement of accelerated religious activities. On November 8, 1966, the appeal board considered his case and classified him I-A.
On April 3, 1967, appellant reported for, but refused, induction. His indictment, trial, conviction, and sentencing followed.
Appellant relies heavily on what has become known as a Sicurella*fn3 argument: Where two legal grounds for classification -- one correct and one incorrect -- are recommended by the Department of Justice and it is impossible to determine which was relied upon by the selective service system, the courts may not assume that the correct ground was the basis for the classification. Accordingly, the classification is invalid and a subsequent conviction for refusal to submit to induction cannot stand.
In urging the application of this doctrine, appellant points to one sentence in the Justice Department's letter of recommendation: "The hearing officer reported that the registrant was emphatic in stating that his religion was not pacifist in nature and would battle evil and wrongdoing in its own way by strong opposition and a militant stand." From this single sentence, appellant would have us conclude that the Department of Justice based its recommendation in part on an erroneous determination that he was not a bona fide conscientious objector because he was willing to do battle in a spiritual, as distinguished from a temporal, war. He asserts that this was an invalid ground for denying the conscientious objector claim because it is now well settled that the teaching of the Jehovah's Witnesses on Armegeddon and spiritual warfare is not a legitimate reason for refusal of a I-O classification. We agree with this statement of the law.*fn4 We disagree, however, that it is applicable to the case at bar.
Appellant has confused the restatement of his own testimony regarding his church's "militant stand" with a statement of the reasons given by the hearing officer in recommending a denial of his claim. The hearing officer reported that Brown "did not state that he personally was opposed to military service because of a strong personal conviction." The report discloses that "the Hearing Officer endeavored to ascertain whether the registrant's objections to military service were predicated on personal religious beliefs and convictions, and * * * that the registrant's responses seemed to be solely directed to the work done by the Jehovah's Witnesses and the amount of training involved," that appellant "made no statement at any time that his objection to military service was based upon personal religious belief," but that "the registrant's conscientious objector claim appeared to be based solely upon the opposition of the Jehovah's Witnesses to military service and the registrant's status as a minister of Jehovah's Witnesses."*fn5
A fair reading of the Department of Justice report compels the conclusion that the recommendation was not based on a finding of the registrant's readiness to do spiritual combat, but on a determination that he failed to meet his burden of proving the existence of personal convictions opposing temporal combatant service as distinguished from mere membership in a religious organization which espouses non-combatant beliefs. We reject, therefore, appellant's initial contention that the Department of Justice recommendation was based in part on a ground erroneous in law.
A conscientious objector exemption must be based upon "subjective religious beliefs of the particular individual, not upon the religious tenets of an organization of which he is a member."*fn6 Moreover, the burden of establishing entitlement to a conscientious objector classification is upon the registrant.*fn7
Appellant makes no challenge to this statement of his responsibility to prove his subjective and personal beliefs. His argument, simply stated, is that he discharged that responsibility by meeting the burden of proof. Ours then is a very narrow inquiry: Did he meet that burden, or conversely stated, was there any basis in fact for the board's classification of I-A in view of the evidence that the appellant was a sincere adherent to his particular religious faith?*fn8
Brown contends that his replies to questions in Form 150, see Note 2, supra, constitute sufficient evidence of his personal and subjective conscientious objector belief. An examination of these passages, however, fails to reveal an expression of "subjective religious beliefs of the particular individual." One passage is nothing more than a declaration of a sincere willingness to obey and serve "Jehovah God" and to make this a life's vocation; the other, a response to the question asking under what circumstances, if any, is there belief in the use of force, is but a laudatory paraphrase of the Commandment "Love Thy Neighbor" which the appellant has described as a "peace loving attitude [making] for unison, eliminating force." Nowhere does he declare, forthrightly or indirectly that he personally does not believe in temporal warfare because of his "religious training and belief."*fn9 To these inadequate responses to Form 150's critical questions must be added the gist of his testimony before the Department of Justice where the hearing officer reported that the appellant "made no statement at any time" that his objection to military ...