Elliott Ashton Welsh, II v. United States

(dissenting) :

As stated in the majority opinion, the Hearing Officer found “no religious ba *1087 sis for the registrant’s conscientious objector claim.” His conclusion was accepted by the Department of Justice as the basis for its recommendation to the Appeal Board that Welsh’s claim for a 1-0 or I-A-0 classification be denied. The Appeal Board implicitly followed that recommendation in denying either of these classifications. The majority holds that, under the circumstances of this case, there was no judicially cognizable administrative error in this regard which undermines the conviction. I respectfully disagree.

In reaching its conclusion, the majority addresses itself to two questions: (1) was the Appeal Board’s denial of 1-0 or I-A-0 classifications without any basis in fact? and (2) does the Appeal Board decision rest upon an unconstitutional distinction between theistic and non-theistic religious beliefs? The majority gives a negative answer to both of these questions.

Concerning the second question, I agree with the majority holding, and for the reasons stated in the majority opinion. The Appeal Board decision is not premised upon the “Supreme Being” provision of…

This appeal is from a conviction of the appellant for refusal to submit to induction into the Armed Forces in violation of 50 U.S.C. App. § 462. This Court has jurisdiction under Rule 37 of Federal Rules of Criminal Procedure and 28 U.S.C. § 1291 .

The appellant Welsh registered with his local board on February 2, 1960. On December 11, 1961 the board received his completed classification questionnaire (SSS Form 100). He did not then claim to be a conscientious objector.

On December 14, 1961 the board classified the appellant I-A. On January 15, 1963 the board received appellant’s application for a permit to leave the United States. The application stated that the appellant’s classification was I-A. On February 5, 1963 the board issued a permit allowing the appellant to depart for a period of one year, which expired March 16, 1964. On March 27, 1964 the appellant was ordered to report for a physical examination. On April 10, 1964 appellant requested and was given a special form for conscientious objector (SSS Form 150). It was completed and received by the board on April 24, 1964. In that form the appellant stated that he was “by reason of * * * belief, conscientiously opposed to…

404 F.2d 1078 Elliott Ashton WELSH, II, Appellant, v. UNITED STATES of America, Appellee. No. 21442. United States Court of Appeals Ninth Circuit. Sept. 23, 1968, Rehearing Denied Jan. 31, 1969. 1 J. B. Tietz (argued), Michael Hannon, Los Angeles, Cal., for appellant. 2 Gabriel Gutierrez (argued), Asst. U.S. Atty., Wm. Matthew Byrne, Jr., U.S. Atty., Robert L. Brosio, Asst. U.S. Atty., Crim. Div., A. Michael Glassman, Asst. U.S. Atty., Los Angeles, Cal., for appellee. 3 Before HAMLEY and ELY, Circuit Judges, and POWELL, District Judge. POWELL, District Judge: 4 This appeal is from a conviction of the appellant for refusal to submit to induction into the Armed Forces in violation of 50 U.S.C. App. 462. This Court has jurisdiction under Rule 37 of Federal Rules of Criminal Procedure and 28 U.S.C. 1291. 5 The appellant Welsh registered with his local board on February 2, 1960. On December 11, 1961 the board received his completed classification questionnaire (SSS Form 100). He did not then claim to be a conscientious objector. 6 On December 14, 1961 the board classified the appellant I-A. On January 15, 1963 the board received appellant's application for a permit to leave the United…