training. In United States ex rel. Tobias v. Laird.92 and Ross v. McLaughlin 93 the courts recognized that the belief on which the objection was based was triggered by events in Vietnam, yet the petitioners qualified for the exemption. In Gresham v. Franklin,94 the applicant was granted release from the Army even though he made his claim after he received orders for Vietnam and it was established that this triggered his objection. In United States v. St. Clair 95 a conscientious objector had stated that his beliefs were relatively new; he made a connection between this "new objection" and the fact that he had recently attended a peace really. The Court of Appeals rejected the board's finding that these facts implied a lack of sincerity. In United States v. Crownfield,96 the court found that the FBI resume was replete with glowing accounts of defendant's sincereity and honesty, yet the Department of Justice's recommendation was adverse because of the lateness of the claim and a belligerent attitude of the registrant toward the Selective Service System. Citing Scott v. Commanding Officer,97 the court reversed this registrant's conviction on a record which lacked all evidence of training.

Of special import are cases involving military personnel who have already served some time either in the reserves or on active duty and seek discharge as conscientious objectors. The Army Regulations on in-service conscientious objection recognize that some such claims are made "late".98 A most convineing example is that of an Army cadet who wanted to resign from West Point because his newly developed conscientious objector belief did not permit him to remain. In United States ex rel. Donham v. Resor 99 the court found no valid basis for denying Donham's claim in the hearing officer's disbelief that a West Point cadet could possibly develop conscientious scruples against the war. And in United States ex rel. Lohmeyer v. Laird 100 the court said, "If the length or type of religious training, formal or informal, were the test, the sincerity of the conversion of Saul on the road to Damascus might be open to question." When a man in the reserves, or on active duty, develops a qualifying belief, this comes about in spite of rigorous military training to the contrary. It

922 SSLR 3212, 413 F.2d 936 (4th Cir. 1969). The court stated with emphasis "all three officers making recommendations recommended classification as a conscientious objector" and remanded the case to the District Court with instructions to order the Army to grant CO status to Tobias.

93 2 SSLR 3536, 308 F. Supp. 1019, 1024 (E.D.Va. 1970).

43 SSLR 3206, 315 F. Supp. 850 (N.D. Cal. 1970).

951 SSLR 3224, 293 F.Supp. 337 (E.D.N.Y. 1968).

963 SSLR 3833, 439 F.2d 839 (3rd Cir. 1971).

97 3 SSLR 3277, 431 F.2d 1132 (3d Cir. 1970). See also United States v. Freeman, 1 SSLR 3012, 388 F.2d 246, (7th Cir. 1967); Miller v. United States, 1 SSLR 3014, 388 F.2d 973 (9th Cir. 1967); United States v. Stafford, 1 SSLR 3040, 389 F.2d 215 (2d Cir. 1958); United States v. Baker, 1 SSLR 3017, F. Supp. (E.D.N.Y. 1968). 98 AR 135-25, Army National Guard and Army Reserve. Disposition of Conscientious Objectors, Section 5a. SSLR 2333. This regulation was revised in conformity to the revision of DoD 1300.6, SSLR 2325, to conform with Welsh. The revision includes replacing "religious training and belief" in § 3 (b) with "deeply held moral, ethical or reli gious beliefs" thereby deleting the earlier reference to training. Also conforming to the revision of the Directive, the title for section 6a, paragrah 2, "Religious training and belief," was replaced by "Religious training or beliefs held."

The Army Chaplains are assigned the role of first interviewers of all Army men who intend to apply officially for CO status. AR 635-20, Section 4b (2). Therefore, it is significant that the official manual of the Army Chaplain School that teaches the chaplains the requirements for conscientious objector status, discusses the "religious training and belief" standard solely with respect to belief and without reference to training. United States Army Chaplain School, Fort Hamilton, New York, publications ST16-60–1. Counsling the Conscientious Objector, July 1, 1969. This publication is in the process of being revised so as to take account of Welsh.

The same holds true for the Army Chaplain School's lesson material for the corre spondence course for non-resident chaplains. Army Correspondence Course, Subcourse, No. CH 141, Counseling the Conscientious Objector, July 1, 1969. This multiple choice questionnaire contains a four-choice question on how the sincerity of a claimant can best be determined by "objectively" considering his professed "belief". The expected correct answer is "The Actions which grew out of [that belief]". The three incorrect answers are: "The Biblical support [the applicant] can provide"; "The family training out of which [the belief] grows"; and "The Teachings of the denomination to which [the applicant] belongs". Id. at 4. Correct answer obtained in oral communication from the Army Chaplain School.

93 SSLR 3550, 318 F. Supp. 126 (S.D.N.Y. 1970), rev'd., 3 SSLR 3548, 436 F.2d 751 (2d Cir. 1971). A number of those with intimate contacts with Donham certified to the sincerity and depth of his evolving scruples of conscience.

100 3 SSLR 3072, 318 F.Supp. 94, 102 (D.Md. 1970).

would be impossible to attribute his belief to some earlier "training or other process comparable to traditional religious training."

Indeed, since under Ehlert the armed forces are to process for discharge only those whose claims became fixed after the issuance of an induction order, a requirement of training would be even more anomalous here than in the case of the preinduction claim. The pre-1971 DoD 1300.6 reflected this fact in its lack of emphasis on training.101

C. Other interpretations

After the introduction, in 1940, of the "religious training and belief" standard, the Justice Department apparently needed a clarification of "religious training". General Hershey supplied an interpretation which gave explicit preference to belief over training; he criticized and rejected the "schoolmaster's" approach that would look for "hours or years of study," and pointedly stated that the question is only whether the registrant "gets" the belief. with respect to a rapidly or suddenly developed belief, he propounded a theory that in these cases “a lifetime of training" is "crammned into one hour." 102

The Director's first official report to Congress, issued about the same time, expressed similar views and indicated that they had been communicated to the Boards so as to counter any tendency to apply "religious training and belief" in a narrower way than his own. The report took the position that it sufficied if the holder of a qualifying belief was exposed, "if only sujectively" to the ethical concepts of a "religious civilization"; and it termed a belief qualifying if it has roots in the same soil" from which religious convictions also spring.10

103

After Congress introduced the "Supreme Being" clause into the 1948 statute, Selective Service again had an opportunity to analyze the standard. The System's study of the conscientious objector exemption considered the new statutory standard in great detail and depth, yet it completely ignored the statutory term "training", 104 indicating that by that time the Director may have considered the question moot.

Finally, again some years later, the Selective Service System issued, under General Hershey's authorship, a legal manual in which considerable space was assigned to the analysis of various aspects of qualification for CO status. However, the entire discussion on "religious training and belief" is from the angle of belief, with no reference at all to training. In dealing with church membership and church tenets, the manual states that probably too much emphasis is placed on that point; but, again, there is no reference to religious or more specifically church training. 105

101 See Section IV, subsections A & B. The latest revision of the DoD goes so far as to incorporate the pertinent languag of LBM 107. This development is subject to all the criticisms reflected in these Comments, plus the additional anomaly, noted above, that any claim properly before the military is apt to be of recent and sudden development, and certainly not a direct outgrowth of early experience.-Ed.

102 Religious belief, however, is more.

important than "training" because we are too prone to have the schoolmaster in mind and hours, days, weeks, years of study when we weigh the meaning of training. Even there, one gets it by the long process-another by "cramming". Does he get it? That's the question. If so, it involved training of some kind. I have some doubt about absorption through "bolts from the blue" even though I do not toss aside entirely St. Paul's experience on the Road to Damascus. These are exceptions, and probably he had a lifetime of training crammed into that one hour. Pertinent part of letter from Lewis B. Hershey, Director, Selective Service System, to the Department of Justice, March 5, 1942. Reproduced in CCCO Handbook for Conscientious Objectors 86 (9th Ed. 1967).

103 Divergent ideas broke sharply over that contention presented in the Congressional language "religious training and beliefs ***. Many board members held the view that objection must arise from religious training and belief in religious organizations Hearing officers held generally that the cnoviction ... must rest on an easily recognizable background ***. We adopted a more liberal view*** to say the conscientious convictions held by a man reared in the environment of a religious civilization and exposed, if only subjectively, to its ethical concepts, have their roots in the same soil from which spring religious convictions ***.

Hershey, Selective Service in Wartime, Second Report of the Director of Selective Service, 1941/42, at 256-58.

104 United States Selective Service System, Monograph No. 11, Conscientious Objection (1950).

105 Legal Aspects of Selective Service, first published 1957. Revised 1963 and 1969. There was no change in the second and third issues with respect to the passages cited.

With respect to a possible relationship between training and sincerity, the manual does list quite a number of facts relating to the claimant's past, which it says the boards may consider in determining whether the registrant is sincere. Significantly, these range from youthful derelictions and hunting of wild game to membership in military organization, family background, etc., but no example has a bearing on training.

This record must be read in the light of General Hershey's statements at the 1967 congressional hearings 106 which stressed his doubts about the possibility of defining "religion". Taken together, these statements may fairly be said to suggest that training comparable to that of a traditional religious objector would not, in General Hershey's view, be an appropriate requirement for moralethical conscientious objection.

V. SUMMARY AND CONCLUSION

The arguments and evidence marshalled above serve as formidable support for the contention that there is no basis in logic or settled policy, in legislative history or in judicial authority for a requirement of training in moral-ethical CO beliefs. This requirement of LBM 107 is invalid whether put forward as an independent test of eligibility for exemption, or simply as evidence of sincerity. Congress and the courts have repeatedly and constantly rejected attempts to impose such a requirement, which would be inconsistent with the policy of granting CO status to sincere moral-ethical obejctors. Even the Selective Service System shared this view, until Supreme Court decisions raised unjustified fears of administrative breakdown.

Perhaps experience has served to allay these fears, so that the currently pending revisions of the regulatory scheme can abandon the unlawful criteria of LBM 107 voluntarily and gracefully.

Meanwhile, men denied CO status because of those criteria have valid grounds for relief by way of habeas corpus or defense to criminal prosecution.

106 See n. 61 supra.

17. SILARD, BELA, “INVALID DISRUPTION RULES FOR CO ALTERNATIVE SERVICE"

[Reprinted from Columbia Survey of Human Rights Law, vol. 3, p. 136 (1970-71)]

INVALID DISRUPTION RULES
FOR CO ALTERNATIVE SERVICE *

INTRODUCTION

Under the Military Selective Service Act of 1967,1 those conscientious objectors (COs) whose beliefs preclude any form of participation, even as non-combatants, in war in any form, are classified I-0 and relieved from induction for service in the armed forces. In lieu of military training and service they are required "to perform . . . . such civilian work contributing to the maintenance of the national health, safety, or interest as the local [draft] board pursuant to Presidential regulations may deem appropriate. . . ."2 And the President has de

*By Bela A. Silard. The author, a non-lawyer, is Chairman of the American Ethical Union's Committee On Conscientious Objection.

1. Military Selective Service Act of 1967, 50 U.S.C. APP. § 451 et seq. (1967) (hereinafter cited as the Act).

2. Nothing contained in this title shall be construed to require any person to be subject to combatant training and service in the Armed Forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form. As used in this subsection, the term 'religious training and belief' does not include essentially political, sociological, or philosophical views, or a merely personal moral code. Any person claiming exemption from combatant training and service because of such conscientious objections whose claim is sustained by the local board shall, if he is inducted into the Armed Forces under this title, be assigned to noncombatant service as defined by the President, or shall, if he is found to be conscientiously opposed to participation in such noncombatant service, in lieu of such induction, be ordered by his local board, subject to such regulations as the President may prescribe, to perform for a period equal to the period prescribed in section 4(b) such civilian work contributing to the maintenance of the national health, safety, or interest as the local board pursuant to Presidential regulations may deem appropriate and any such person who knowingly fails or neglects to obey any such order from his local board shall be deemed, for the purposes of section 12 of this title, to have knowingly failed or neglected to perform a duty required of him under this title.

Act § 6(j), 50 U.S.C. APP. § 456(j) (1967).

In addition to this specific authorization with respect to alternative civilian work, § 10 (b) (1), 50 U.S.C. APP. § 461 (1967), gives the President ge eral authority to issue rules and regulations to carry out the provisions of the