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United States v. Ziskowski

decided: August 14, 1972.

UNITED STATES OF AMERICA
v.
JOEL ZISKOWSKI, APPELLANT



Staley, Van Dusen and Adams, Circuit Judges. Adams, Circuit Judge (concurring).

Author: Van Dusen

Opinion OF THE COURT

VAN DUSEN, Circuit Judge.

This appeal challenges a criminal conviction (the district court judgment and commitment is dated January 25, 1972), after trial to the court, for refusal to submit to induction in accordance with a Local Board order as required by the Military Selective Service Act of 1967, as amended, and the rules and regulations made pursuant thereto, in violation of 50 U.S.C. App. § 462.

After the registrant had received an order to report for induction on November 17, 1969,*fn1 which was mailed on October 23, 1969, he filed an application on Form 150 for classification as a conscientious objector (I-O) in early February 1970, alleging, inter alia, that consideration of his imminent induction in November 1969 made him realize that "I couldn't bear arms against another person." His Form 150, as supplemented by his supporting letters, made out a prima facie case for a I-O classification. See Welsh v. United States, 398 U.S. 333, 90 S. Ct. 1792, 26 L. Ed. 2d 308 (1970). After a nonstatutory interview was granted to Ziskowski by the Local Board on February 5, 1970, at which he "advised his feelings crystallized when he received the induction order,"*fn2 the Board declined to reopen the case and sent him a letter dated 5 February 1970 stating, inter alia:

"It is the determination of the board that there has been no change in your status resulting from circumstances over which you had no control. Your classification has not been reopened."*fn3

32 C.F.R. § 1625.2, governing the reopening of a registrant's classification after the mailing of an Order to Report for Induction, provides that such reopening shall not occur "unless the local board first specifically finds that there has been a change in the registrant's status resulting from circumstances over which the registrant had no control." The language used by the Board in refusing to reopen Ziskowski's classification is consistent with at least the following reasons:*fn4

1. A Board finding that the registrant's conscientious objector beliefs were not sincere either before or after receipt of his notice of induction on October 23, 1969,*fn5 so that there was no change in his status since he was not entitled to a conscientious objector classification in either period.

2. A Board finding that the registrant's conscientious objector beliefs were sincere both before and after receipt of his notice of induction on October 23, 1969,*fn6 so that there was no change in his status requiring a reopening of his classification.

3. A Board finding that the registrant's conscientious objector beliefs, even if they were sincere and had crystallized after receipt of the Order to Report for Induction, were not "by reason of religious training" (See 50 U.S.C. App. § 456(j)),*fn7 so that there was no change in his status since he was not entitled to a conscientious objector classification in either period.

4. A Board determination that even if the registrant might be entitled to a conscientious objector classification because his conscientious objector beliefs were sincere and "by reason of religious training" and had crystallized after October 23, 1969, the registrant was not entitled to a reopening of his classification because such crystallization was not "a circumstance over which the registrant had no control" within the meaning of 32 C.F.R. § 1625.2.*fn8

A basic problem with the language used by the Board in refusing to reopen the registrant's classification is, therefore, that one cannot tell from this language why the Board took the action that it did. In Scott v. Commanding Officer, 431 F.2d 1132, 1137-1138 (3d Cir. 1970), this court was confronted with a similar problem, which it explained in the following terms:

"Petitioner's Form 150 was explicit in its statement of his beliefs. Certainly, the beliefs outlined, if sincerely held, would qualify him as a conscientious objector. The only possible grounds for rejecting his claim, then, would be finding that the beliefs are not sincerely held or that they did not undergo a material change or crystallize after the induction order.

"There is nothing in the petitioner's file to indicate that his asserted beliefs are not sincerely held, and the board made ...


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