McLaughlin, Ganey and Adams, Circuit Judges. Ganey, Circuit Judge (concurring). Adams, Circuit Judge (dissenting).
GERALD McLAUGHLIN, Circuit Judge.
Appellant was convicted of refusing to submit to induction into the Armed Services of the United States and now appeals from that conviction. He registered for the draft with his local board in August 1964 at which time he was eighteen years old, He was classified I-A. In the fall of 1964 he matriculated at Denison University. Because of that he was reclassified as 2-S. In February 1968, as his final year at Denison was drawing to a close, appellant sought admission to the Officer Candidate School of the United States Navy. He was instructed that should he be accepted he would possibly be enlisted in the Naval Reserve within sixty to ninety days to await active duty for a period of three years. On May 1, 1968 his local board was notified that he had not been accepted for the said school. He graduated from Denison in June 1968 and in due course was reclassified as I-A. He appealed from that decision, asserting that he was a full time graduate student. The appeal was denied and on November 21, 1968, he was found acceptable for military service. On that day he requested and received a conscientious objector #150 form from his local board. On December 20, 1968 he filed his completed #150 form with said board and asked for a personal appearance which he was given. In a unanimous decision the board voted that his I-A classification be retained.
He then appealed to the appeal board which affirmed his I-A classification and ordered him to report for induction on September 17, 1969. He appeared at the induction center but refused induction. He was thereafter indicted, tried and convicted of having refused induction into the Armed Services.
He offers two contentions on appeal. The first of these is that the "Selective Service System gave no reasons for its rejection of the claim." The completely dispositive difficulty with that argument on behalf of appellant is that there was no prima facie case presented for him, nothing that could justify his classification as a conscientious objector. The burden admittedly was on appellant to produce evidence that would support such classification change. United States v. Palmer, 223 F.2d 893 (3rd Cir. 1955), cert. den. 350 U.S. 873, 76 S. Ct. 116, 100 L. Ed. 772, United States v. Carroll, 398 F.2d 651, 653 (3rd Cir. 1968). Appellant and his attorney cannot claim ignorance of the present pertinent law of this circuit. They know that in Scott v. Commanding Officer, 431 F.2d 1132 (3rd Cir. 1970) this court adopted the rule of United States v. Broyles, 423 F.2d 1299, 1304 (4th Cir. 1970) which holds that " Where it is clear that a prima facie case was established, we conclude that in conscientious objector cases, it is essential to the validity of an order to report that the board state its basis of decision and the reasons therefor, i. e., whether it has found the registrant incredible, or insincere, or of bad faith and why." (Emphasis supplied). In the latest ruling of this court on the question before us, United States v. Stephens, 445 F.2d 192 (opinion filed July 2, 1971), the majority opinion in outlining the issue before the court said: "We turn, therefore, to the sole question for resolution: whether, as required by Scott, appellant presented a prima facie case to the local board." (Emphasis supplied). The concurrence agreed with this but differed from the majority conclusion that a prima facie situation had been established. We note in passing that the definition of a prima facie case in Selective Service litigation as spelled out in United States v. Burlich, 257 F. Supp. 906, 911 (S.D.N.Y.1966) quoted in the Stephens concurrence, was not disputed nor do we find any reported decision to the contrary. That quotation is as follows:
"In selective service cases, a prima facie case is present 'if a registrant has presented facts which, if true and uncontradicted by other information contained in his file, would be sufficient under the regulations to warrant granting his requested classification.'"
Appellant's brief in its statement on this first point for review merely makes the flat pronouncement that here, in a case involving a prima facie conscientious objector's claim ". . . the Selective Service System gives no reasons for its rejection of the claim." On the argument in the brief, again appears the language that "Where the Selective Service System gives no reason for its rejection of a prima facie conscientious claim. . . ." (Emphasis supplied.) In United States v. Crownfield, 3rd Cir. opinion filed March 19, 1971, 439 F.2d 839, which is in exact accord with Scott and Stephens, it was conceded that defendant had made out a prima facie case.
Let us examine the record and ascertain whether appellant made out a prima facie case for his alleged conscientious objector status. It is settled law that he must satisfy three basic tests. "He must show that he is conscientiously opposed to war in any form. . . . And he must show that his opposition is based upon religious training and belief. . . . And he must show his objection is sincere." (Emphasis supplied). Clay v. United States, 403 U.S. 698, 91 S. Ct. 2068, 29 L. Ed. 2d 810, opinion filed June 29, 1971. See also Gillette v. United States, 401 U.S. 437, 91 S. Ct. 828, 28 L. Ed. 2d 168 (1971); United States v. Seeger, 380 U.S. 163, 85 S. Ct. 850, 13 L. Ed. 2d 733 (1965); Welsh v. United States, 398 U.S. 333, 90 S. Ct. 1792, 26 L. Ed. 2d 308 (1970); Witmer v. United States, 348 U.S. 375, 75 S. Ct. 392, 99 L. Ed. 428 (1955).
Jones, after he had been initially classified I-A, as has been mentioned above, obtained a full college student deferment by matriculating at Denison University. In February 1968 as his senior year was running out he applied for Officer Candidate School, United States Navy. Down to May 1, 1968, he did not withdraw his application. On that date he was advised that he had not been selected. The following November 21, 1968 he was found acceptable for the Armed Services. On that same date he requested C.O. Form #150. He filled out and filed that form December 20, 1968. In that questionnaire Jones said he was "conscientiously opposed to participation in war in any form." Answering the religious belief question he stated that "By the time of completion of the undergraduate degree (June 1968) I had formed the belief mentioned above." He also said "these beliefs have been established for a few years now." It will be remembered that Jones had an application for the Navy Officer's Candidate school going from at least February 1968 to May 1, 1968. There is no evidence that he ever did withdraw it.
On February 20, 1969 Jones made a personal appearance with the local board. In the summary of information furnished by him is the following, "Registrant had applied for Officer Candidate School and would have entered if accepted at that time but not now." On March 17, 1969 Jones sent a letter in connection with his appeal to the board. He there said "By the time I came to realize that participation in any branch of the military would be participation in the war." (Emphasis supplied). He went on to say "I cannot participate in an aggressive war." Jones was a trial witness in his own behalf. He was asked by his attorney, "When your views did crystallize, did you feel that you were sincerely and conscientiously opposed to taking part in war as you described your views here?" Answer "Yes."
"The Court: Doesn't that conflict with your previous testimony?
Mr. Kerr: Well, I think he has testified here, and he has been frank, Your Honor to say that he is not opposed to war in any form. (Mr. Kerr, attorney for appellant).
The Court: It seems to me what he has been outlining is his thinking that he is opposed to this ...