(dissenting).

Whether the appellant was properly given his 1-A classification, or whether he received due process from the selective service boards, is dependent upon the regularity of what transpired before the local board. The fact that the proceedings before the appeal board may have been regular and in accordance with the applicable regulations, does not, under the circumstances here, aid the position of the Government for this case is. governed by the rule stated in Knox v. United States, 9 Cir., 200 F.2d 398 . In that case, this court, distinguishing the fact situation which obtained in Tyrrell v. United States, 9 Cir., 200 F.2d 8 , and in other similar eases where the action of the appeal board was said to have corrected or cured certain irregularities on the part of the local board, said, 200 F.2d at page 402: “Classification by the local board is an indispensable step in the process of induction. The registrant is entitled to have his claims considered and acted upon by these local bodies the membership of which is composed of residents of his own community. An underlying concept of the Selective Service System is that those subject to call for service in the armed forces are to be classified by their neighbors — people who are in a position to know best their backgrounds, their situation and activities.” We reaffirmed and restated our holding in the Knox case in Franks v. United States, 9 Cir., 216 F.2d 266, 270 .

In short, under the selective service regulations the registrant is entitled initially to a hearing of his claim of conscientious objection by the local board composed of his neighbors, whose opportunity to judge of his honesty and sincerity, because of his personal appearance before them, is greater than that of any appeal board which necessarily is dependent upon the second-hand report of a hearing before a Department of Justice hearing officer. What I am saying is, the registrant is entitled to both the hearing before the local board and the hearing before the appeal board, and the denial of the contemplated hearing before either is a denial of due process called for by the regulations. Such is the holding of the Knox case.

In my view, the case made by the Government was demonstrably insufficient to warrant a conviction. The record of the proceedings before the local board show that on March 19, 1953, after a personal appearance before the Board, the registrant, who had claimed exemption as a conscientious objector by filing the appropriate Form 150, was placed in class I-O. He was then asked to fill out and did execute and return to the board Form 152 required of 1-0 registrants, indicating his qualifications in the event of assignment to civilian work. Two days after that form was mailed to him, but before it had been returned, the board received from R. R. Sanders, Captain USAF, who described himself as “Coordinator, District 6”, the following letter:

“23 April 1953

“Selective Service System

Local Board No. 140

525 ‘E’ Street

San Diego, California

Subject: Ayers, Joe Mike, SS No. 4-140-29-496 International Christian Revival Association

“Gentlemen:

“The subject registrant has been given a classification of 1-0 because he claims membership in the subject religious organization, which is located at 1841 W. Palmyra Street, Orange, California.

*811 “It so happens that Local Board No. 135, Santa Ana, has recently made an investigation of this organization because one of their registrants is also claiming to be a conscientious objector, and eligible for Class I-O.

“The investigation revealed that this organization has, at present, only some 20 members, and that they are supervised by Mr. George E. Andrus, 5742 E. Thelma Avenue, Buena Park, California. Mr. Andrus was contacted this date, and stated that he was ordained in 1946. He is employed as a teacher in the Santa Ana Junior College. He advised that subject religious organization was incorporated in 1951, and verified a statement made by the Santa Ana registrant that the group decided, on 18 November 1952, that they were conscientiously opposed to war and on that date, passed a resolution to that effect.

“In view of the above it would appear that a classification of 1-0 is not warranted under the provisions of Section 1622.14 of Selective Service Regulations.

“For your information, the Santa Ana registrant belonging to this organization is, at the present time, a full-time student and is in a student’s classification. It is the intention of Local Board No. 135 to place him in Class I-A when he no longer qualifies for a student’s classification.

“Very truly yours, R. R. Sanders Captain, USAF Coordinator, District 6.”

Form 152, together with an executed Form 151, whereby registrant voluntered for civilian work were received by the board on April 30, 1953. Thereafter and on May 7, 1953, without anything further intervening, and without the making of any minutes of a meeting on that day, the board classified registrant in class I-A. That is where he stayed and that is the classification upon which his prosecution is based. Thereafter his request for a further personal appearance was granted but the board declined to change this I-A classification.

The appellant’s contention is that his change of classification from 1-0 to I-A was based upon erroneous advice contained in the letter from Captain Sanders. The authorities agree that the burden was upon the Government to prove that this recommendation of the Armed Forces officer did not affect the board’s decision. The letter of the officer was about as erroneous and misleading as it could possibly be. In the first place, it says that since the organization, of which registrant was a member, had but recently adopted a resolution of conscientious opposition to war, the classification of the appellant as a conscientious objector was not warranted under the regulations. There is nothing better settled than that a man’s status as a conscientious objector under the regulations is dependent upon his own personal beliefs, not upon those of the organization of which he is a member. As the Supreme Court said in Sicurella v. United States, 348 U.S. 385, 390 , 75 S. Ct. 403, 405 , 99 L.Ed. 436 : while the belief of the registrant’s sect is “relevant”, yet “each case must of necessity be based on the particular beliefs of the individual registrant.” In deciding that case, the Supreme Court cited United States v. Everngam, D.C., 102 F.Supp. 128 , as stating “the correct rule.” Everngam was a Catholic. The hearing officer, to whom his case was referred by the appeal board, made a report substantially the same as that which Capt. Sanders made to this local board. The hearing officer said that he too was a Catholic; that he knew all about the Catholic faith, and that the registrant’s beliefs were diametrically opposed to the teachings of the Roman Catholic Church and that registrant could not use those teachings as a basis for deferment. He recommended therefore that registrant be retained in class I-A. He made no general finding as to the registrant’s own religious training and belief. The court held that the report and recommendation was erroneous and arbitrary.

Another respect in which the advice of the representative of the Armed Fore- *812 es was in error was in asserting that since another local board had ruled that another member of the same religious organization was not eligible for class I-O, that called for a like ruling on the part of this local board. The error of such a position is manifest.

Finally, the giving and receiving of orders, instructions or opinions from military personnel to draft boards is contrary to the whole concept of the selective service system which is that the process of classification and induction shall be carried on by civilian boards. The regulations (C.F.R. Title 32, § 1604.22 and § 1604.52) provide with respect both to the appeal boards and the local boards that no member shall be a member of the Armed Forces or any reserve component thereof.

Of course it is conceivable and possible that the action of the local board in changing appellant’s classification from 1-0 to I-A may have been based solely upon the board’s further consideration of the evidence which had been before it at the time the 1-0 classification was given, and that the Captain’s letter and its advice had no part in influencing its action. Even so, since appellant had at least made a prima facie case at the time he was given the 1-0 classification, it would still be problematical whether at the time the board changed the classification to I-A “there [was] some proof that is incompatible with the registrant’s proof of exemption.” Dickinson v. United States, 346 U.S. 389, 396 , 74 S.Ct. 152, 157 , 98 L.Ed. 132 . Cf. Schuman v. United States, 9 Cir., 208 F.2d 801, 804 , and Pitts v. United States, 9 Cir., 217 F. 2d 590, 593 .

But it is not enough that there was a possibility that the board disregarded or was uninfluenced by the erroneous communication from the Captain. There is nothing more definitely settled than that in a situation of this kind the prosecution must prove that the improper matter or erroneous report or recommendation did not affect the decision of the board.

We have here the precise situation discussed in United States v. Everngam, supra, as follows, 102 F.Supp. at page 131 : “It does not appear that any member of the appeal board felt himself bound by this report and recommendation or how far, if at all, it influenced the decision of the appeal board, but that is not enough. The report and recommendation was transmitted to the appeal board to use as an advisory opinion, and was considered and used (as the regulations require) by the appeal board in its subsequent classification of the defendant. Under such circumstances the prosecution was bound to prove that such invadid report and recommendation of the hearing officer of the Department of Justice did not affect the decision of the appeal board, or any subsequent decision of the local board. No such proof was offered.” (Emphasis mine.) That language, of course, was used with respect to the action of an appeal board; but the principle there expressed is just as applicable to the action of a local board.

The Everngam case cited with approval the decision in United States ex rel. Levy v. Cain, 2 Cir., 149 F.2d 338, 342 , which was another of the decisions expressly approved by the Supreme Court in Sicurella v. United States, supra. In that case, a local board made use of a report and recommendation of an advisory panel which contained improper matter. The court pointed out that it was impossible to know to what extent, if any, the decision of the panel influenced the local board. The relator, Cain, was released from custody.

Another case in the Second Circuit expressly approved in Sicurella was United States v. Balogh, 157 F.2d 939, 943, 944 . That case also dealt with the receipt by a local board of an erroneous report or recommendation under such circumstances that the court could not tell whether the local board did or did not rely upon the report. The conviction of the registrant was reversed.

The authoritative statement set forth in the quotation from Everngam, supra, *813 that “the prosecution was bound to prove that such invalid report and recommendation * ':i * did not affect the decision”, is also stated in Sicurella v. United States, supra, where the court held that “this error of law by the Department, to which the Appeal Board might naturally look for guidance on such questions, must vitiate the entire proceedings at least where it is not clear that the Board relied on some legitimate ground. Here, where it is impossible to determine on exactly which grounds the Appeal Board decided, the integrity of the Selective Service System demands, at least, that the Government not recommend illegal grounds.”

When this court decided the case of Shepherd v. United States, 9 Cir., 217 F.2d 942 , the Sicurella decision had not come down. Had it been available at that time this court could have made excellent use of the language last quoted for the facts there are not distinguishable from those dealt with in the Sicurella case. In dealing with the absence of evidence as to whether the board did or did not disregard the erroneous advice it had received, we mentioned the possible argument that there might be a presumption that the board acted regularly and properly and disregarded the advice. We said, 217 F.2d at page 946: “[W]e find it difficult to be persuaded in this, a criminal case, that such a presumption is sufficient to negative the likelihood that the board in fact relied upon the erroneous advice of the Department of Justice.” We reversed the conviction. See also Batelaan v. United States, 9 Cir., 217 F.2d 946 . In the Shepherd case, we followed United States v. Hagaman, 3 Cir., 213 F.2d 86 , as did the Tenth Circuit in Ypparila v. United States, 219 F. 2d 465 , where the court dealt with action by the National Board which changed the registrant’s classification from 1-0 to I-A. There it was conceded that the National Board was wrong if it reclassified the registrant on the theory that his professed creed would not sustain a claim of conscientious objection to war, (the erroneous theory of Capt. Sanders here). There was nothing to show whether the board acted on this or on another ground. The court cited the case of United States ex rel. Reel v. Badt, 2 Cir., 141 F.2d 845 , and said, 213 F.2d at page 89 : “In the case last cited the court indicated that such agencies as these boards should make their processes ‘sufficiently explicit to reveal, so far as may be reasonably practicable, whether or not they are keeping within the statute under which they purport to act’. 141 F.2d at page 848 . Of course such disclosure need not be technical or elaborate. And it is not necessary at all in the usual case where the issue in controversy and the basis of decision are made apparent by the record itself. But in cases like the one now before us, the reclassifying board should indicate in a general and non-technical way why it changed the classification.”

The only evidence offered on behalf of the United States was the selective service record which, as I have said, failed to indicate either “in a general and nontechnical way”, or in any manner whatever, why it changed the classification. 1 The Regulations, Title 22, § 1604.58, required the Board to keep minutes of its meetings. That provision furnished it an opportunity to make its action explicit. Although as stated in the Everngam case, supra, the prosecution was bound to prove that the erroneous report *814 and recommendation did not affect the decision of the Board, the Government failed to make a case against appellant and he should have been acquitted. 2

. The minutes of the registrant’s later appearance before the board was wholly unenlightening and hardly understandable. They contained a recital: “lie appeared before the board members on March 19, 1953. He was asked if he felt the same about his religious beliefs, lie said he did. Boaz’d members explained Ms views were contrary to our beliefs, and according to the Selective Service regulations ho cannot be considered in any other classificatiozi bzzt I-A. Therefore the Board could not change Ms classification.” If this indicates anything, it is that the Board had accepted the theories of Capt. Sanders.

. I have said nothing here of another contention of appellant. That is, that he was denied access to the Captain Sanders letter, and an opportunity to refute its statements. Gonzales v. United States, 348 U.S. 407 , 75 S.Ct. 409, 412 , 99 L.Ed. 467 , decided after this case was tried, held that although there is no express regulation to that effect, yet it was “implicit in the Act and Regulations — viewed against our underlying concepts of procedural regularity and basic fair play” that a copy of a Justice Department recommendation to an appeal board must be furnished to a registrant. The same rule should require that this registrant see and have a chance to meet the Captain Sanders letter. The record here fails to show that registrant ever saw or heard of the letter. This matter, differing from that I have discussed in my dissent, is something concerning which the appellant himself might have testified. His testimony at the trial is not a part of the record here. Because of my doubts as to whether the selective service record must itself have shown disclosure of the letter to appellant, I am not prepared to say that the showing here discloses a denial of the right stated in the Gonzales case.

Also, I need say little about the opinion’s statement that “There is positive evidence in this case that the board offered Ayers a 1-A-O classification and that Ayers refused it.” If that happened just that way it would show another reason why Ayers’ classification was void. If the board thought he belonged in 1-A-O it was its duty to put him there, for “it was not for the local board * * * to say that the registrant should not be placed in a certain classification merely because he did not want that classification”. Franks v. United States, 9 Cir„ 216 F.2d 206, 269 . However, I do not so read the record. What happened was that when the board classified Ayers 1-0 it asked him if he would accept non-combatant service, “attend the wounded”, and he replied he could not.