UNITED STATES of America, Plaintiff-Appellee, v. Peter Hanlon IRONS, Defendant-Appellant, 369 F.2d 557

MATHES, Senior District Judge. Appellant waived trial by jury, and was tried and convicted by verdict of the District Judge of two violations of the Universal Military Training and Service Act, as charged in the indictment: (1) willful failure to “report for and submit to an Armed Forces Physical Examination”, and (2) willful failure to “report for or submit to induction into the armed forces * * * ”; all in violation of 50 U.S.C.App. § 462. From the judgment and concurrent sentences imposed following his conviction, appellant appeals.

Although he chooses various ways of saying it, the single ground upon which appellant rests his appeal is that “there was no basis in fact” for the 1-A classification given him by the local draft board. [See: Dickinson v. United States, 346 U.S. 389, 74 S.Ct. 152, 98 L.Ed. 132 (1953); Estep v. United States, 327 U.S. 114, 122-123, 66 S.Ct. 423, 90 L.Ed. 567 (1946).] The relevant facts are not in dispute. Appellant was born in 1940. In September of 1958, he registered under the Selective Service Act with local board 55 in Cincinnati, Ohio.

On July 27, 1961, appellant was classified 1-A by local board 55, and was notified by the board on August 14, 1961 of his 1-A classification, but intentionally failed to appeal. On January 25, 1963, the local board sent to appellant a written order directing him to report for an Armed Forces physical examination on February 8, 1963, but appellant intentionally refused to report for or submit to a physical examination.

Instead of obeying, appellant sent a letter to the board stating inter alia: “I have received the Order to Report for Armed Forces Physical Examination, and I must state my unwillingness to undertake such an examination. In the past, I have outlined to you at great length my objections to the draft on logical grounds. But my objection also stems, and perhaps I have not made this clear, from moral and philosophical grounds.

The Selective Service System has ruled that moral and philosophical exceptions to the system are not admissible grounds for exemption, but I believe this to be discriminatory and superficial.” On April 2, 1963, local board 55 sent to appellant a written order to report for and submit to induction into the armed forces of the United States on April 19, 1963, but appellant intentionally refused to report for or submit to induction as ordered.

In appellant’s brief before us, he concedes that the record shows he “denounced the entire Selective Service System and reiterated his refusal to cooperate in any way with it. * * * ” Appellant now contends that the record made in his correspondence with the local board discloses that he should have been classified as a conscientious objector (1-0), because of the definition of “a Supreme Being”, within the meaning of § 6(

j) of the Act [50 U.S.C.App. § 456(j), (1958 ed.)], which was formulated in United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965). As Mr.

Justice Clark there observed for the Court: “The crux of the problem lies in the phrase ‘religious training and belief’ which Congress has defined as ‘belief in a relation to a Supreme Being involving duties superior to those arising from any human relation’. * * * A sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption * * [See Gold-farb, Three Conscientious Objectors, 52 A.B.A.J. 564 (1966).] This is the test, and how appellant meets it is revealed by his entire correspondence with the local board, and especially by his last letter of May 17, 1963, wherein he declares: “I do not believe that I have any duties ‘superior to those arising from any human relation’, since the entirety of my life involves human relationship.” Assuming that appellant could nonetheless qualify for the conscientious-objector classification (1-0) under the Seeger definition of “Supreme Being”, he still confronts the fact that he emphatically waived any such classification by refusing to claim the exemption. [See: United States v.

Schoebel, 201 F.2d 31, 32 (7th Cir. 1953); United States v. Rubinstein, 166 F.2d 249, 257-258 (2d Cir. 1948).] Not only did appellant spurn all administrative remedies available to him, including appeal [cf. Maddox v. United States, 264 F.2d 243 (6th Cir. 1959)]; he also refused to report for, or submit to a physical examination. Conscientious objectors are not excused from a physical examination.

Indeed, no registrant is, and for good reason. [See Selective Service Regs. § 1628.11, 32 C.F.R. § 1628.11 (1965 Supp.).] Even if improperly classified 1-A, there remains the possibility, unfortunately all too great in these times, that he will fail the physical examination and be reclassified as 4-F. Where that is the result, all constitutional and other problems incident to 1-A classification disappear of course, eo instanti. [See: Falbo v. United States, 320 U.S. 549, 553, 64 S.Ct. 346, 88 L.Ed. 305 (1944); Moore v. United States, 302 F.2d 929 (9th Cir. 1962); United States v.

Balogh, 160 F.2d 999 (2d Cir. 1947).] The same policy requires every registrant to report for induction as ordered, even though he may have valid legal grounds for refusing to submit to induction. [Cf.: Estep v. United States, supra, 327 U.S. 114, 66 S.Ct. 423; Williams v.

United States, 203 F.2d 85, 88 (9th Cir. 1953).] The most that can be said, then, in response to appellant’s appeal here is that he is admittedly guilty of refusing to report for and submit to a physical examination, as charged in count one; and it is equally clear that he is guilty of refusing to reposrt for induction, as charged in count two of the indictment. However, we need not reach the point of decision as to count two, since the sentences imposed on both counts run concurrently. [See: United States v. Romano, 382 U.S. 136, 138, 86 S.Ct. 279, 15 L.Ed.2d 210 (1965); United States v.

Gainey, 380 U.S. 63, 65, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965); Lawn v. United States, 355 U.S. 339, 359, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958); Emspak v. United States, 349 U.S. 190, 195, 75 S.Ct. 687, 99 L.Ed. 997 (1955); Hirabayashi v. United States, 320 U.S. 81, 85, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943); Sinclair v. United States, 279 U.S. 263, 49 S.Ct. 268, 73 L.Ed. 692 (1929).] The judgment of the District Court is affirmed.