Seitz, Van Dusen, Circuit Judges, and Masterson, District Judge.
Defendant, Peter Kenly Crownfield, was convicted on May 21, 1970, of knowingly refusing to submit to induction into the Armed Forces in violation of 50 U.S.C. App. § 462(a). In this appeal, we are asked to consider the applicability of our recent decision in Scott v. Commanding Officer, 431 F.2d 1132 (3d Cir. 1970), to Selective Service proceedings brought before the date of that decision and, more particularly, before the enactment of the 1967 amendments to the Selective Service Act.
In July 1962, at age eighteen, defendant registered with his local draft board in Somerville, New Jersey. In early 1964, he was sent a Selective Service classification questionnaire, which he completed and returned to the board after writing "Does Not Apply" in the space provided for claiming exemption as a conscientious objector. Defendant was subsequently granted a student deferment until his graduation from Dartmouth College in June 1966. At that point, he was reclassified I-A and was ordered to report for a preinduction physical examination. Defendant so reported on September 12, 1966, and was found qualified under existing standards of acceptability. Two days later, he formally requested that he be reclassified either I-Y (qualified only in time of war or national emergency) or IV-F (not qualified under any circumstances) because of a recent history of back trouble. Only after his local board refused to consider this request did defendant ask for a copy of the necessary form for claiming conscientious objector status (SSS Form No. 150).
Defendant filed Form 150 with his local board on November 9, 1966. On December 12, the board voted to deny his claim and, without any statement of reasons, notified him by means of a classification card (SSS Form 110) that he was being retained in Class I-A. Defendant personally appeared before his local board on January 17, 1967, and submitted a written summary of his beliefs at the same time. Although the board determined that this new information did not warrant a reopening of defendant's classification, again it simply mailed him a Form 110 without indicating the basis for its decision.
On January 23, 1967, defendant appealed his classification to the state appeal board. After tentatively determining that defendant was not entitled to conscientious objector status the appeal board, in accordance with existing regulations,*fn1 forwarded the file to the United States Attorney for an advisory recommendation from the Department of Justice. Upon the completion of an FBI investigation, defendant appeared before a Justice Department Hearing Officer on January 10, 1968, and was permitted to be heard on the "character and good faith" of his beliefs and to submit still another written statement. The Department concluded that defendant's conscientious objection was neither religious nor sincere and recommended that his claim he denied. After permitting defendant to reply to the Department's recommendation, the state appeal board voted unanimously to classify defendant I-A on May 14, 1968. For the third time, defendant was mailed a Form 110 with no statement of reasons.
Defendant was ordered to report for induction on August 26, 1968. Although he appeared at the induction center on the stated date and submitted to preliminary administrative and medical processing, he refused to submit to induction itself, explaining to the processing officer that "he was a conscientious objector and as such was opposed to 'military service'." Defendant was indicted for knowingly refusing to submit to induction, was convicted by a jury, and was placed on five years' probation conditioned upon the performance for three years of civilian work contributing to the maintenance of the national health, safety, and interest.
On appeal, defendant now urges us to reverse his conviction on the basis of Scott v. Commanding Officer, supra, which holds that the rejection of a registrant's prima facie case for conscientious objector status without any statement of reasons vitiates the legality of his induction order. At oral argument the government conceded that defendant made out a prima facie case, and it has never disputed the fact that no Selective Service decision pertaining to defendant's conscientious objector claim has ever been supported by a statement of reasons. Nevertheless, the government contends that Scott should not be applied retroactively to board actions antedating that decision or, in any event, should at least be limited to those conscientious objector applications processed after July 1967, when the Selective Service statute and regulations were amended.
The government first refers us to footnote 2a of our opinion in Scott, wherein we declined to decide whether the rule of that case should be given retrospective application. While Scott is "a clear guide for local board action in the future," the government now argues, it should not be used to upset past board decisions "simply because an administrative agency did not follow a procedure not even thought of, much less required, at the time * * *." The government relies primarily on Stovall v. Denno, 388 U.S. 293, 297, 87 S. Ct. 1967, 1970, 18 L. Ed. 2d 1199 (1967), where the Supreme Court listed the following three criteria as bearing on the question of retroactivity:
"(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards."
These criteria have been held equally applicable to constitutionally and non-constitutionally based decisions. Halliday v. United States, 394 U.S. 831, 832, 89 S. Ct. 1498, 23 L. Ed. 2d 16 (1969); cf. Linkletter v. Walker, 381 U.S. 618, 628, 85 S. Ct. 1731, 14 L. Ed. 2d 601 (1965).
We note initially that other circuits adopting a rule similar to that of Scott have applied that rule in subsequent decisions without discussion of the retroactivity issue. E. g., United States v. French, 429 F.2d 391 (9th Cir. 1970); United States v. Deere, 428 F.2d 1119 (2d Cir. 1970); United States v. Simpson, 426 F.2d 286 (4th Cir. 1970). Nevertheless, ...