Robert G. Petree, Bornstein & Petree, Orlando, Fla., Samuel S. Jacobson, Datz & Jacobson, Jacksonville, Fla., for defendant-appellant.

Edward F. Boardman, U.S. Atty., Middle District of Florida, Gary B. Tullis, Allan P. Clark, Asst. U.S. Attys., Jacksonville, Fla., for plaintiff-appellee.

Before TUTTLE and SIMPSON, Circuit Judges, and CASSIBRY, District judge.

CASSIBRY, District Judge:

Arthur Wilson White, Jr., appeals his conviction by jury for failure to submit to induction into the Armed Forces. 50 App. U.S.C. 462. Without reaching any other issue we reverse on the ground that there was no basis in fact for the Selective Service Appeal Board's ruling that White was not entitled to a conscientious objector classification.

White registered with the Selective Service System on November 29, 1960 and was classified I-A on February 16, 1961. From that time until July 1966 he held a succession of student and occupational deferments. He attended Emory University from September 15, 1960 to March 1963. He attended Stetson University from September 1963 to June 1964. He reentered Stetson in September 1965 and graduated with a B.A. Degree on May 29, 1966. Since graduation he has been an Assistant Planner for the Orange-Seminole-Osceolo Planning Commission in Orlando, Florida. On July 27, 1966 for the first time he filed a special selective service form with his local Selective Service Board, applying for a conscientious objector classification. 50 App. U.S.C. 456(j). On October 11 White's local Board continued him in I-A classification, stating that the Board's opinion was that the defendant's convictions were of a personal moral code. On October 21 defendant filed an appeal with the Board from their I-A classification and on the same day the Board forwarded the case to the Selective Service Appeal Board, Middle District of Florida.

On November 2, 1966 the Appeal Board determined that the defendant should not be classified as a conscientious objector. On the same day White's Selective Service file was transmitted by the Appeal Board to the United States Attorney for the Middle Federal Judicial District of Florida for an advisory recommendation from the Department of Justice regarding White's conscientious objector claim. A hearing was held before a special hearing officer and an F.B.I. investigation was conducted. The hearing officer thereafter issued a report to the Conscientious Objector Section of the Justice Department. That section in turn recommended to the Appeal Board that appellant be classified I-A.1 On August 2, 1967 the Appeal Board classified White I-A. On September 19, 1967 White was ordered to report for induction on October 10, 1967. At the induction station White refused to take the symbolic step forward. Indictment, trial and conviction followed.

In denying defendant's motion for judgment of acquittal made at the end of trial in which he urged, inter alia, that there was no basis in fact for the Appeal Board's denial to him of conscientious objector status, the district court found that White did have a conscientious objection to war that was long standing, but that his objection to war was not by reason of religious training and belief but stemmed from his own political, sociological, or philosophical views or personal moral code that existed before his affiliation with his church.2 In a word the trial court found that White's conscientious objection to war was insufficiently religious. The Government's position is that the record contains sufficient evidence of White's insincerity to support the Appeal Board's denial of the conscientious objector classification. We think the trial court and the Appeal Board both erred. There was no basis in fact for finding that White's conscientious objection was not based on religion or that he was not sincere in his beliefs.

An Appeal Board considers matters of classification de novo and its classification of a registrant is one of first instance, superseding that of the local Board even though the classification is the same as the one given by the local Board. Clay v. United States, 397 F.2d 901 (5th Cir.1968).

The scope of review in cases of this nature has been stated to be the narrowest known to law. Blalock v. United States, 247 F.2d 615 (4th Cir. 1957). We may grant relief only if there is evidence of a lack of procedural fairness or if the conclusion of the Appeal Board is without any basis in fact. Estep v. United States, 327 U.S. 114, 66 S. Ct. 423, 90 L. Ed. 567 (1946). In Estep the Court said:

'* * * The provision making the decisions of the local boards 'final' means to us that Congress chose not to give administrative action under this Act the customary scope of judicial review which obtains under other statutes. It means that the courts are not to weigh the evidence to determine whether the classification made by the local boards was justified. The decisions of the local boards made in conformity with the regulations are final even though they may be erroneous. The question of jurisdiction of the local board is reached only if there is no basis in fact for the classification which it gave the registrant.' 327 U.S. at 122, 66 S.Ct. at 427.

We have held that this language in the Estep case means that the decision of the Board must be sustained if there is any basis in fact for the classification. Greer v. United States, 378 F.2d 931 (5th Cir.1967). See also Foster v. United States, 384 F.2d 372 (5th Cir. 1967).

White's case arises under the Selective Service Act of 1948 as amended, which provided in pertinent part:

'Nothing contained in this title * * * shall be construed to require any person to be subject to combatant training and service * * * who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form. Religious training and belief in this connection means an individual's belief in relation to a Supreme Being involving duties superior to those arising from any human relation but does not include essentially political, sociological, or philosophical views on a merely personal code.3

The United States Supreme Court's definition of 'religious training and belief' is set forth in United States v. Seegar, 380 U.S. 163, 166, 85 S. Ct. 850, 854, 13 L. Ed. 2d 733 (1965):

'* * * the test of belief 'in a relation to a Supreme Being' is whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption. Where such beliefs have parallel positions in the lives of their respective holders we cannot say that one is 'in relation to a Supreme Being' and the other is not.'

It posed the question thusly:

'* * * does the claimed belief occupy the same place in the life of the objector as an orthodox belief in God holds in the life of one clearly qualified for exemption?' 380 U.S. at 184, 85 S.Ct. at 863.

Before a conscientious objector classification may be denied on the ground that the applicant's beliefs are based upon 'political, sociological or philosophical views or on a merely personal moral code', those factors must be the sole basis of his claim for the classification. Fleming v. United States, 344 F.2d 912 (10th Cir.1965). In other words, 'The use by Congress of the words 'merely personal' seems to us to restrict the exception to a moral code which is not only personal but which is the sole basis for the registrant's belief and is in no way related to a Supreme Being.' United States v. Seegar, supra, 380 U.S. at 186, 85 S. Ct. at 864.

In White's explanation of his beliefs, he attributed his convictions wholly to religion. In answer to the specific question on his conscientious objector application which asked him to define the nature of his objection to war, he explained his objection was based entirely on religion. Throughout his Department of Justice hearing, he emphasized that is objection was religiously based.4

White offered 12 witnesses at the hearing officer's inquiry, five of whom testified that they had known him during the critical years and then stated without exception that White was a very religious person during the time they had known him. White says that the other seven were prepared to likewise testify if they had been permitted to do so. All five who did testify stated categorically that his conscientious objection was religiously motivated and was of long standing.

As a further part of its investigation, the Justice Department talked with a number of other people who had been acquainted with White during his lifetime, and the results of these interviews were contained in the resume which has already been referred to. Many of them also attested to White's longtime religious inclinations and felt they were genuinely motivated. We have examined the record of the officer's hearing and the text of the resume and have discovered no probative evidence reflecting adversely upon White's sincerity and honesty. Almost without exception those who knew him best felt that he was a religious person and that he was and has been sincere in his conscientious objection to war. For the hearing officer and the Chief of the Conscientious Objection Section of the Justice Department to reach a contrary opinion, they would have had to disbelieve all the witnesses in the case or base their opinion upon suspicion and speculation.