(dissenting):

This is an appeal from the district court’s grant of a writ of habeas corpus to an in-service conscientious objector. Frisby v. Larsen (N.D.Cal.1971) 330 F. Supp. 545 . The majority has sustained the action of the district court.

*246 Two principal questions are involved:

(1) Was there a basis in fact for the military’s decision not to grant appellee Frisby a I-O classification, within five months of granting him a I-A-O [noncombatant] classification ?

(2) May demeanor evidence alone provide a basis in fact?

Respectfully disagreeing with the majority, I dissent and would reverse, answering both questions in the affirmative.

Facts

Frisby was inducted into the Army on June 8, 1970. On August 9, 1970, he completed basic combat training and was assigned to another post for advanced infantry training. The next day, August 10, he applied for in-service noncombatant status as a I-A-O conscientious objector. This application was approved by the designee of the Secretary of the Army on November 25, 1970, and Frisby was so notified on or about December 1, 1970.

Frisby was then to be assigned for training as a medical corpsman. He looked through a manual for medics, and came to the position that he could not support the taking of lives through duty as a medic. As of December 9, 1970— eight days after he was notified of his I-A-O classification — Frisby had begun gathering letters in support of an application for a I-O classification [conscientious objection to any participation in war], which would, if granted, require his discharge from the Army.

During the processing of this new application, a psychiatrist found Frisby had no mental disorder, and a chaplain said Frisby’s objection to any form of service was sincere, and based on “personal moral persuasions.”

Captain Martin Heming, Judge Advocate General’s Corps, the O-3 hearing officer, after interviewing Frisby, rejected his application on four grounds: (1) lack of sincerity, based on observation of Frisby’s demeanor at the hearing, and his apparently rote-learned answers to difficult questions; (2) sudden change from his I-A-O beliefs; (3) the mechanical nature of his responses to questions, and lack of effort to answer; and (4) his apparently flippant attitude that it would be nicer to be out of the Army than in it. On administrative review, both Frisby’s company commander, Captain Newman, and his battalion commander, Lt. Col. Andersen, interviewed him, and endorsed the O-3 hearing officer’s strong recommendation for disapproval of the application.

Relying on the three officers’ views, the Conscientious Objector Review Board (CORB) denied the application on April 12, 1971. The CORB specifically set out the O-3 officer’s findings and relied upon them. Frisby filed this petition for a writ of habeas corpus on April 27, 1971, which was granted on August 4, 1971.

Basis in Fact

The district court stated that Frisby’s case “was one of unusual strength. . ” 330 F.Supp. at 547 . It found that “ . . . his present beliefs . were expressed by his applications in a manner both simple and on occasion eloquent,” and quoted parts of the application. Id. at 546 and n. 2. The court proceeded to hold “ . . . that the ‘basis in fact’ [must] be ‘rational’, consist of ‘hard, provable, reliable facts’, and be evaluated with reference to the strength of countervailing evidence in the record.’’ Id. at 549 [footnotes omitted ; emphasis added].

It is in the italicized portion of this holding that the district court fell into error. It cited two district court cases, id. at n. 16, for this impermissible weighing of the evidence. One of those cases is reported. Shirer v. Hackel (N. D.Cal.1970) 330 F.Supp. 369 . It is by the same district judge, and states:

The Maynard case, upon which the district court relied in this case, through Shirer, does not support the proposition for which it was used. Maynard correctly states that judicial review of selective service classifications is “the narrowest known to the law.” All that is required is that the agency determination have a “basis in fact” which “need not even rise to the level of ‘substantial evidence.’ ” Maynard, supra, 409 F.2d at 506 . It then goes on to say that a basis in fact exists for the agency determination, where, although the registrant has made out a prima facie case for exemption, there is “some proof that is incompatible with the registrant’s proof of exemption.” Ibid., quoting Dickinson v. United States, 346 U.S. 389, 396 , 74 S.Ct. 152, 157 , 98 L.Ed. 132 (1953). Then comes the key statement, apparently misinterpreted by the district court below: “The nature of such proof depends upon the nature of the prima facie case.” Ibid.

The district court apparently read “nature” to mean that the level or weight, rather than type, of the evidence against the registrant, must vary with the strength, rather than type, of the registrants prima facie case. How else can one explain the district court’s statement that the basis in fact must “be evaluated with reference to the strength of countervailing evidence in the record” ? 330 F.Supp. at 549.

This interpretation is incorrect. Maynard cited Dickinson , which was a ministerial exemption case. Maynard then went on to quote from Witmer v. United States, 348 U.S. 375, 381-382 , 75 S.Ct. 392 , 99 L.Ed. 428 (1955), to the effect that objective evidence must appear to counter a ministerial exemption, because the question in those cases is an objective one, namely, whether or not the registrant is in fact a minister. But Wit-mer points out that in the conscientious objector cases such as ours, the question is a subjective one — whether or not the registrant is sincere. The following language from Witmer is quoted in Maynard , but ignored by the district court:

Obviously, then, as Maynard held, if the administrative file in a conscientious objector case contains credible contradictory evidence concerning the registrant’s sincerity, the court must concede the agency’s findings based on that evidence. The court is not permitted to re-weigh the evidence, which is the exclusive province of the agency. Witmer, supra, 348 U.S. at 380-381 , 75 S.Ct. at 395 , so holds:

To similar effect is id. at 383 , 75 S.Ct. 392 ; see Speer v. Hedrick (9 Cir. 1969) 419 F.2d 804, 806 (per curiam).

Further examination of the district court’s opinion below shows that it im- *248 permissibly weighed evidence. For example, after referring to the conclusions and reasons of the O-3 hearing officer, which were adopted by the CORB, the court said:

The district court apparently felt it could weigh demeanor evidence against the written record. This contrasts sharply with the following statement from Witmer, supra, 348 U.S. at 382 , 75 S.Ct. at 396 :

Such language makes clear that demean- or evidence can suffice to negate a registrant’s C.O. claim. Furthermore, once such evidence appears, a court may not proceed to weigh it against other evidence, and need not search into the written record for objective facts indicative of insincerity. Credibility and demean- or are for the agency to pass on. United States v. Evans (9 Cir. 1970) 425 F. 2d 302, 305 , cert, den., 402 U.S. 987 , 91 S.Ct. 1648 , 29 L.Ed.2d 153 (1971). The district court therefore improperly broadened the scope of its review.

Demeanor Evidence

The use of demeanor evidence on the sincerity question is proper. White v. United States (9 Cir. 1954) 215 F.2d 782, 786-787 , cert, den., 348 U.S. 970 , 75 S.Ct. 528 , 99 L.Ed. 755 (1955); United States v. Evans, supra. However, the agency may not merely state that it found the applicant insincere. United States v. Haughton (9 Cir. 1969) 413 F. 2d 736, 739, 742-743 ; United States v. French (9 Cir. 1970) 429 F.2d 391 . At the minimum, the objective record must state that the hearing officer expressly rejected testimony on demeanor grounds. United States ex rel. Checkman v. Laird (2 Cir. 1972) 469 F.2d 773 , 785 n. 17; see United States v. Newton (9 Cir. 1970) 435 F.2d 671, 674 . Reasons must be stated — at least the grounds indicating the conclusion reached. Laird, supra, 469 F.2d at 781 ; Witmer, supra, 348 U.S. at 381-382 , 75 S.Ct. 392 . See United States v. Guaraldi (9 Cir. 1972) 468 F.2d 774, 776 (hardship grounds).

In denying Frisby’s I-O application, each of the three interviewing officers *249 rested his decision upon demeanor grounds. The CORB itself specifically relied upon the O-3 officer’s findings, including demeanor, method of presentation of answers, rote learning, and flippant attitude. The Army thus met and exceeded all the above requirements. The CORB cited United States v. Corliss (2 Cir. 1960) 280 F.2d 808 , cert, den., 364 U.S. 884 , 81 S.Ct. 167 , 5 L.Ed.2d 105 , where it was said:

This clearly is the proper interpretation of Witmer, supra. Nothing in the record indicates any lack of honesty or rationality in the Army’s decision herein. Denial was based upon insincerity, expressly grounded on specified demean- or evidence.

Agencies have some power to reject testimony on demeanor grounds, else why would Congress empower them to make findings of fact? Patently, demeanor cannot be easily reflected in the written record. It is observation of a witness by the trier of fact. Such observation is at best very difficult to describe in writing; the hearing officer here did his best, we must assume, to indicate why he disbelieved Frisby. 2

The district court could have granted the writ only by completely ignoring the Army’s findings based on demeanor evidence. Such a result is contrary to the Supreme Court’s mandate that courts do not sit as “super draft boards.” Wit-mer, supra, 348 U.S. at 380 , 75 S.Ct. 392 . The majority’s affirmance means that credibility in C.O. cases is now to be judged solely on a written record, thus emasculating one of the central purposes for which classification hearings in C.O. cases are held.

Accordingly, I would reverse the granting of the writ.

. The two eases cited here by the district court do not support its position. In United States v. Jagla (N.D.Cal.1970) 330 F. Supp. 962, 964-965 , a district court found that it could not properly review a record denying conscientious objector status based on the draft board’s review of the file and “registrants [sic] demeanor and responses to questions at the personal appearance . .” Id. at 964 . It noted that the board did not say that the registrant’s statements were inconsistent “or that he was unduly shifty or evasive, or otherwise left the board with the firm conviction that he was insincere . . . . ” Id. at 965 . The court went on to say that a local board’s evaluation of a registrant’s demeanor is suspect because it may misinterpret the registrant’s demeanor. Clearly Jagla goes beyond Witmer, supra, to an impermissible re-evaluation of the evidence, and should not be followed. Moreover, Jagla is inapposite here, where Frisby’s hearing officer expressly gave reasons for his demeanor determination.

The district court also relied upon United States v. Newton (9 Cir. 1970) 435 F.2d 671 . In that case, the hearing officer found the registrant insincere, but “made no statement whatsoever regarding [the 'registrant’s] demeanor or even that the demeanor influenced him in any way.” Id. at 674 . Newton is clearly inapplicable to our case, where the hearing officer expressly rested his decision upon described elements of demeanor evidence.

. In Corliss, supra, the Second Circuit noted the problem with these words :