Appellant Arthur Parisette Clark, a Service selectee, was charged with and was found guilty of and was sentenced for wilfully refusing to be inducted into the Armed Forces of the United States, in violation of the Universal Military Training and Service Act, Title 50 U.S. C.A.Appendix, §§ 4511 et seq., 462(a).2 He appealed.

We review the long chronology of events that led up to appellant's conviction.

Appellant registered with the Selective Service System on October 6, 1948, and at that time filled in Series XIV, page 7, of the Classification Questionnaire which indicated he was a conscientious objector. The Special Form, SSS 150, for Conscientious Objector was not filed. Whether he obtained one, we do not know. On October 12, 1948, the appellant-selectee was classified I-A by the Local Board and no appeal was taken.

On June 8, 1950, appellant was handed a Form 150 by the Local Board, but it was not returned. On October 3, 1950, he was found physically acceptable for service. October 4, 1950, the Board received from Chapman College a letter stating that appellant was "regularly in attendance upon classes." On October 28, 1950, he was ordered to report for induction on November 8, 1950. He did not report for induction. However, on November 14, 1950, the Board postponed induction until June, 1951, because of his student status.

On June 27, 1951, appellant received from his board another SSS Form 150, which he returned completed the next day. The questionnaire contained the question:

"Do you believe in a Supreme Being?"

with the word "Yes" with a place for checking, and the word "No" and a place for checking. Appellant checked the word "No" and added,

"I do not know whether or not a Supreme Being exists."

It therefore appears that appellant's claimed religion is not based upon the existence of a Supreme Being.3

On August 7, 1951, appellant appeared for interview before the Local Board regarding his conscientious objector claim and the Board continued him in Class I-A, and the day after sent him notice thereof. By letter received August 20, 1951 (dated August 18) appellant notified the Board that he wished to appeal his classification. Also, on August 20, 1951, the Board received from his school a College Student Certificate (SSS Form 109) showing that he was not in college attendance after June 9, 1951, and that he was in the lowest one-fourth of his class. On September 12, 1951, appellant visited the Board and examined his file and copied portions thereof at which time he mentioned that he had an attorney. On October 9, 1951, he was again classified I-A (apparently the Board did this because of the receipt of Form 109, although it did not have to) and appellant was so notified on SSS Form 110. Appellant inspected his file on October 12, and a week later informed the Board he was appealing his classification. Since he had been classified I-A on August 7, and had appealed his status, his file had been forwarded to the Appeal Board on October 16, and in turn forwarded to the Department of Justice for investigation and hearing. The Hearing Officer and the Department of Justice recommended that he be classified I-A. On June 23, 1952, appellant was classified I-A by the Appeal Board.

On July 23, 1952, he was ordered to report for induction on August 7, 1952, as a postponed registrant. A letter was received August 1, 1952, by the Board from appellant's attorney, Mr. Tietz, requesting postponement of induction. One week later, the appellant refused induction. He was reported as a delinquent and his file was forwarded to the United States Attorney. It turned out a procedural error caused the Board to take his name off the delinquent list and to reorder him for induction on September 15, 1952. Again, appellant inspected his file on the 4th day of September, 1952, and on September 15 he refused to be inducted.

Appellant was thereafter indicted for his refusal to be inducted, but the government dismissed its case when the court ordered F.B.I. reports admitted into evidence so that an in camera inspection could be made.4 The Local Board, on May 26, 1953, received authority to reopen appellant's file and after the reopening, on June 16, 1953, appellant was again classified I-A. Thereafter, appellant was accorded a personal appearance, and we set out a summary of occurrences in the margin.5 Appellant PAGE CONTAINED FOOTNOTES offered no additional evidence on his conscientious objector claim and was advised that he would be continued in Class I-A and was notified officially thereof on July 8, 1953. On July 20, 1953, a letter was received from appellant appealing that classification.6 Appellant's file was then forwarded to the Appeal Board and it was referred to the United States Attorney's office for investigation, hearing, and recommendation by the Department of Justice. The United States Attorney sent the file back to the Appeal Board with the following notation:

"It appears from the registrant's file that he does not believe in a Supreme Being. In order for a registrant to qualify for a conscientious objector exemption, he must be opposed to war in any form by reason of his religious training and belief. Religious training and belief is defined by the statute as a belief in a Supreme Being involving duties superior to those arising from any human relation. Thus, the registrant does not have a claim within the meaning of the statute granting the exemption. By reason of the foregoing, the Department of Justice has no jurisdiction to conduct the inquiry and hearing in this case."

On December 15, 1953, the Appeal Board classified appellant I-A. Appellant was mailed SSS Form 252, Order to Report for Induction, ordering him to report for induction on January 8, 1954. On the date specified appellant reported to the induction station but refused to be inducted, and there signed a written, dated, and witnessed statement to that effect. Prosecution followed.

First, appellant argues that he was denied due process of law because the Board failed to post the names and addresses of Advisors to Registrants as required by the regulation § 1604.41 of Title 32 C.F.R. (1951 Ed.). Mere failure to appoint advisors or the failure to post the names and addresses of advisors is not per se a violation of due process; and that lack of due process exists as to such failure only when substantial prejudice is shown. Uffelman v. United States, 9 Cir., 1956, 230 F.2d 297, and Kaline v. United States, 9 Cir., 235 F.2d 54. Appellant at the trial testified that he contacted the local board and asked the name of an appeal officer from whom he could get advice. He was given the name of an appeal officer and he contacted him. Further, appellant on many occasions inspected his file and copied portions thereof. He told the board that he had an attorney and his attorney contacted the Board. A Selective Service official testified at the trial that although no one was labeled with the title "Advisor to Registrants", there were others in the Board's office who performed the same function. No prejudice is shown.

Next, appellant argues that there was failure of proof that he [appellant] had refused to submit to induction, after being warned of the penalty. This issue was not raised at the trial, and is not included in appellant's Points on Appeal, as required by the rules of this court.7 However, the record shows the following writing:

                "January 8, 1954
     "I refuse to be inducted into the
     Armed Forces of the United States."
                /s/ "Arthur P. Clark
     "Witnessed by:
       /s/ "Earl S. Beydler, Capt. Inf.
       /s/  "George J. Newton Jr.,
            M/Sgt., U.S.Army."

Appellant argues that Chernekoff v. United States, 9 Cir., 1955, 219 F.2d 721, is exactly the same case as the instant one. The two cases differ. The point as to failure of proof of refusal to be inducted, was raised in Chernekoff. The Chernekoff statement was not dated. There is not a scintilla of evidence in the record in our instant case that appellant was denied an opportunity to take the "step forward". In Chernekoff, this was not true. As we recently said in Kaline v. United States, 9 Cir., 235 F.2d 54, in a like situation:

"* * * The presumption is that the legal steps were taken and if appellant wanted to overcome this presumption, he should have made the point at the trial."

Appellant further argues that he was entitled to an investigation and hearing by the Department of Justice on his second and last appeal and the failure to grant him such a hearing and investigation rendered his order to report for induction void. We find this argument unsound for several reasons. We reiterate that appellant had a full and complete investigation and hearing by the Department of Justice on his first conscientious objector claim made in 1951.8 The Appeal Board had on June 23, 1952, decided against his claim and classified him I-A. On June 7, 1953, the appellant was given a personal appearance after he had been again classified I-A by the Local Board. At this personal appearance appellant offered no additional evidence on his previous claim to conscientious objector status. Rather, at this appearance he reiterated without change his previously expressed views and he maintained a lack of belief in a Supreme Being. The appeal was untimely (see footnote 6, supra).

Appellant here argues that the lapse of time since his first appeal as to his denial of conscientious objector status, is in itself a sufficient ground for requiring a new investigation and hearing. We disagree. Here, the original investigation and hearing may not have been required under the regulations. Nothing new was developed at his interview, and his beliefs were exactly the same. We do not hold that a change of belief may not come about in the passage of time, but the mere passage of time is not significant.

Appellant argues that "all" claims to conscientious objector status require investigation and hearing. We disagree. The statute is clear as to what Congress intended when it created an exemption from service for persons who are honest and sincere conscientious objectors. The statute, Section 6(j) of the Universal Military Training and Service Act of 1948 as amended Title 50, U.S. C.A.Appendix, § 456(j) provides in part:

"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. Religious training and belief in this connection means an individual's belief in a 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 or a merely personal moral code. * * * Any person claiming exemption from combatant training and service because of such conscientious objections shall, if such claim is not sustained by the local board, be entitled to an appeal to the appropriate appeal board." [Emphasis supplied.]

We note that we are not here dealing with the issue of the sincerity or veracity of appellant's beliefs,9 but rather with the problem whether any and every claim of conscientious objection requires an investigation and hearing. From the face of appellant's SSS Form 150, it is ascertainable that appellant clearly does not fall within the statutory definition of a conscientious objector. He lacks belief in a Supreme Being; he does not have these beliefs "by reason of religious training and belief." He is agnostic in thought,10 and holds his views as a "result of a gradual development of [his] thinking over a long period of time — of [his] study and observation and experience with human relations." Nowhere does he state whether his "belief in a supreme being involves duties which to [him] are superior to those arising from any human relation." (Series II of SSS Form 150, Question 2. See footnote 3, supra.)

It is thus obvious that appellant is the type of "objector" which the statute was designed to exclude (i.e., those holding views based on political, sociological, or philosophical views or a merely personal code). Appellant does not fall within the statutory definition and the denial of his "claim" is not subject to investigation and hearing by the Department of Justice. Even if it were held that his claim were within the definition, he still was not entitled to a second hearing and investigation, due to the fact that he had already had one hearing and had made no claim of change of belief since his first denial of conscientious objector status. A registrant is not entitled to repetitious determinations of identical issues. See Davidson v. United States, 9 Cir., 1955, 218 F.2d 609, and the same case on granting certiorari, 349 U.S. 918, 75 S. Ct. 659, 99 L. Ed. 1251, where the Supreme Court said:

"The petition for writ of certiorari is granted and the judgment of the Court of Appeals is vacated. The cause is remanded to the Court of Appeals for consideration of whether petitioner's conscientious objector claim comes within the provisions of § 6(j) of the Universal Military Training and Service Act, in which event this case would be governed by Gonzales v. United States, 348 U.S. 407, 75 S. Ct. 409 [99 L. Ed. 467]." [Emphasis supplied.]

After the Supreme Court remanded Davidson to our court, we considered whether the selectee's claim came within the statute, and held, in Davidson v. United States, 9 Cir., 1955, 225 F.2d 836, that it did not. Certiorari was denied 1955, 350 U.S. 887, 76 S. Ct. 142. We find in the instant case no denial of due process because of the denial of the second hearing.

Next, appellant argues that he was not given a full and fair hearing before the Hearing Officer of the Department of Justice on his first claim to conscientious objector status, because the Hearing Officer withheld adverse evidence from him at the hearing. He argues that this "tainted" report of the Hearing Officer as a result of his appearance, is not a true picture because he did not have an opportunity at that time to rebut the withheld information. He then argues that the Appeal Board, when it was considering his second claim to conscientious objector status, would take into consideration this "old" Hearing Officer report and recommendation and, because that recommendation was "tainted", he was thereby prejudiced. We note, first, that the appellant did not raise this point at the trial until after he had been convicted. Appellant had taken the stand to testify in his own behalf and made no mention of this supposed "tainted" report or the supposed withholding of adverse evidence. When he did bring the matter up, he merely made a general allegation, "I didn't receive the information that he had against me, as the Dickinson case [Dickinson v. United States, 346 U.S. 389, 74 S. Ct. 152, 98 L. Ed. 132] says is required." No proof was offered at this time to substantiate the charge. Instead three days later, appellant submitted an affidavit in which he stated his recollection of what he had previously testified to when he first had been indicted and trial commenced before another judge. At that trial, the indictment was dismissed by the government when the trial judge ordered the production of the F.B.I. secret investigative reports.11 There is nothing in the record to enable us to ascertain whether the Hearing Officer did or did not withhold adverse information. We hold against appellant on this point.

But the controlling point here, though, is the fact that after this assertedly "tainted" report was sent to the Department of Justice and also to the Appeal Board and a decision had been made, the appellant was accorded a second determination by the Appeal Board as to his conscientious objector claim. The purpose of giving the registrant a fair resume of any adverse information is to enable him to rebut it if he can. Simmons v. United States, 348 U.S. 397, 75 S. Ct. 397, 99 L. Ed. 453.

The Hearing Officer's summary and the Department's recommendation (as to his first claim) were placed in appellant's file on June 23, 1952. Appellant's file reveals that on June 24, 1952, appellant visited the Local Board and examined his file and copied portions thereof. Also, from appellant's own affidavit as to what occurred at his first trial (March 12, 1953) which was dismissed by the government, as explained above, it is revealed that appellant knew at least by March 12, 1953, of any adverse evidence which he claimed was withheld from him. Subsequently, the Local Board reopened the classification and appellant personally appeared before the Board. No evidence at that time was presented which would in any way rebut this supposed adverse evidence, even though at this time the appellant knew of such information. Again, the Appeal Board considered his claim, and he also had an opportunity to answer or reply to the information of which he now complains.

Even if appellant could raise the point here (but we do not hold that he could), he cannot in the circumstances show prejudice. He has been given that which Simmons v. United States, 348 U.S. 397, 75 S. Ct. 397, 99 L.Ed. 453, supra, requires. We further note that no prejudice could be shown because the very "claim" that appellant was asserting was not a "claim" within the statutory definition of a conscientious objector, as discussed above. United States v. De Lime, 3 Cir., 1955, 223 F.2d 96, is analogous. It was there said, at page 100:

"Consequently, the defendant's own uncontradicted statements demonstrate that his claim was not based on `religious training and belief,' within the meaning of the statute. Therefore, he was not prejudiced by not receiving an adequate or fair resume of the F.B.I. report. The fact that his credibility was attacked in the report was immaterial for if everything he had said in support of his claim for exemption was fully believed his position continued to lie entirely outside of the statute. * * * [T]he defendant in the instant case could not have been prejudiced by the failure to furnish him a fair resume because the denial of conscientious objector status was necessitated by his own statements and was not based on any rebuttable information acquired from other sources as in Simmons. This is not a case, where, despite a lack of prejudice, proceedings must be vitiated if procedural requirements are not met."

Appellant next argues that he did not have an opportunity to answer the adverse recommendation of the Department of Justice. This point, likewise, was not raised at the trial, nor included in appellant's Points on Appeal. We find no merit in the argument even if he were able to raise it here, since he had a second hearing before the Local Board and likewise had a second appeal to the Appeal Board. He at that time knew of the recommendation but did not rebut it. As we have seen above, he also could not be prejudiced here, either, since his "claim" was not within the meaning of the statute. There is nothing in the record to indicate that he did or did not receive a copy of the recommendation.

Lastly, the appellant argues that the "Supreme Being" clause in the statute is unconstitutional. He attacks the clause on two grounds. First, he argues by specious reasoning that the clause offends the VI Article (3rd Clause) of the United States Constitution which provides:

"* * * but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." Art. VI, § 3, U.S.Constitution, U.S.C.A.

Appellant argues, rather circuitously, that conscientious objectors choose prison rather than violate their principles, and thereby, as felons, are ineligible for public office. The reasoning is specious.

Exemptions rest upon the grace of the government, and not upon constitutional rights. Local Draft Board No. 1 of Silver Bow County, Montana v. Connors, 9 Cir., 1941, 124 F.2d 388; Richter v. United States, 9 Cir., 1950, 181 F.2d 591, certiorari denied 340 U.S. 892, 71 S. Ct. 199, 95 L. Ed. 647, and Cannon v. United States, 9 Cir., 1950, 181 F.2d 354, certiorari denied 340 U.S. 892, 71 S. Ct. 199, 95 L. Ed. 647.

Appellant further argues that the Supreme Being clause offends the First Amendment of the Constitution, to-wit:

"Congress shall make no law respecting an establishment of religion * * *." This court has previously decided this point adversely to appellant in George v. United States, 9 Cir., 1952, 196 F.2d 445, at page 450, certiorari denied 344 U.S. 843, 73 S. Ct. 58, 97 L. Ed. 656, where it was said:

"In sum, as the exemption from participation in war on the ground of religious training and belief can be granted or withheld by the Congress, the Congress is free to determine the persons to whom it will grant it, and may deny it to persons whose opinions the Congress does not class as `religious' in the ordinary acceptance of the word. So assuming that the definition of `religious training and belief' in Section 456(j) is restrictive, such restriction is within the constitutional power of the Congress."

See Berman v. United States, 9 Cir., 1946, 156 F.2d 377, 381-385, certiorari denied 329 U.S. 795, 67 S. Ct. 480, 91 L. Ed. 680, rehearing denied 329 U.S. 833, 67 S. Ct. 621, 91 L. Ed. 706.

Judgment affirmed.