United States v. Leslie John Lenhard , 437 F.2d 936 ( 1970 )

HAYS, Circuit Judge:

Defendant appeals from a judgment of conviction rendered on March 9, 1970 after trial without a jury in the United States District Court for the Western District of New York, for wilfully and knowingly failing to obey an order of his draft board to report and submit to induction into the armed forces in violation of 50 U.S.C. App. § 462 (1964).

Defendant registered for the draft on May 26, 1965, at which time he was given a 1-A classification. He subsequently requested and received a 2-S classification which he held until October 17, 1967. A change in his student status precipitated a reclassification to 1-A on October 18, 1967; at this time, defendant failed to exercise any of his appeal rights. Pursuant to an order of his board, defendant reported for a physical examination on January 4, 1968; a notification of his acceptability was mailed on the same day. On February 2, 1968, defendant submitted an Application for Conscientious Objector, SSS 150, to his local board.

The board requested defendant to appear for an interview on February 27, 1968. Defendant called and said he might not be able to appear because he had sprained his ankle. He did not appear. The board then asked him to attend a board meeting on May 21, 1968. He again failed to appear. The board then requested his appearance on July 16, 1968. Once more he did not appear. On neither of the last two occasions did defendant communicate with the board or seek to explain his failure to respond to the board’s notice. On August 23, 1968, the board sent defendant a notice of his 1-A classification addressed to him at his last known address in Buffalo. The notice was returned as undeliverable. On September 5, 1968 the board learned of defendant’s new address in California and the notice was sent to him there. Defendant appealed his classification but on February 19, 1969, the appeal board classified him 1-A. Defendant was ordered to report for induction on May 21, 1969. Although he did report to the Armed Forces Examining and Induction Station on that date, he left the induction center before completing his processing and consequently was not inducted into the armed forces.

Defendant raised the issue of his conscientious objector status at his trial. No member of the local or appellate board testified at the trial. No minutes or memoranda of either of those boards were introduced, nor were any reasons advanced for the denial of defendant’s request for conscientious objector status.

This sequence of events indicates that the board’s action in this case is not to be judged by the standards governing a conscientious objector claim that has matured after the receipt of an induction notice. Compare Paszel v. Laird, 426 F.2d 1169 (2d Cir. 1970) and Capobi-anco v. Laird, 424 F.2d 1304 (2d Cir. 1970) with United States v. Morico, 415 F.2d 138 (2d Cir. 1969) and United States v. Deere, 428 F.2d 1119 (2d Cir. 1970). However, a common thread runs through all of these cases, regardless of what standard is to be applied in reviewing the action of the local and appellate boards. “[I]t is important for courts to know the ground upon which the board acted.” Paszel v. Laird, supra 426 F.2d at 1175 (footnote omitted). Court review “must be meaningful in the sense that it must encompass a record from which a court can determine whether there was a basis in fact for decision, what that basis was and whether the board applied the correct legal standard.” United States v. Morico, supra 415 F.2d at 143. Such a record has not been presented in this case.

In Morico, which upheld a conviction against a challenge based in part on the failure of the board to apprise the defendant of its reasons for refusing to reclassify, there was testimony by the chairman of the state appeals board, the minutes of the local board’s proceedings were introduced and the recommendations of the Department of Justice were put in the record. In contrast, the court in Deere found itself “wholly uninformed as to why the Local Board denied Deere’s claim” though the secretary of the local board had testified at trial. United States v. Deere, supra 428 F.2d at 1122. Not even this minimal effort to state the reasons for denial was made in this case. Consequently, we cannot affirm the conviction. As we indicated in Deere, however, “we are not required to take the polar position of reversing with instructions to dismiss the indictment.” Id. If, on remand, the government can show the board’s reason for denying Lenhard’s application — such as its disbelief in his sincerity, or its conclusion that his beliefs, though sincere, did not qualify him for conscientious objector status — and if denial upon that ground has a basis in fact, the conviction may stand. Otherwise, the conviction must be set aside and the indictment dismissed.

The case is remanded for this purpose.