348 U.S.

375
75 S.Ct. 392
99 L.Ed. 428

Philip Andrew WITMER, Petitioner,

v.
UNITED STATES of America.
No. 164.
Argued Feb. 1, 1955.
Decided March 14, 1955.

Mr.Hayden C. Covington, Brooklyn, N.Y., for petitioner.

Mr. Julius F. Bishop, of Washington, D.C., for respondent.
Mr. Justice CLARK delivered the opinion of the Court.

Petitioner, a member of the Jehovah's Witnesses, stands convicted of failing to

submit to induction into the armed forces in violation of 12(a) of the
Universal Military Training and Service Act, 62 Stat. 622, 50 U.S.C.Appendix,
462(a), 50 U.S.C.A.Appendix, 462(a). On trial, he centered his defense on
the contention that he was wrongfully denied exemption as a conscientious
objector. This Term, we have been asked to review a relatively large number of
criminal prosecutions involving various procedural and substantive problems
encountered in effectuating the congressional policy of exempting
conscientious objectors from military service. We have granted petitions for
certiorari in this and the three following cases, 348 U.S. 812, 75 S.Ct. 42, to
consider certain of the problems recurring in these prosecutions.1

Section 6(j) of the Universal Military Training and Service Act, 62 Stat. 612, as
amended, 50 U.S.C.Appendix, 456(j), 50 U.S.C.A.Appendix, 456(j),
provides that no person who, 'by reason of religious training and belief, is
conscientiously opposed to participation in war in any form', shall be required to
undergo combatant training or service in the armed forces. The conscientious
objector, to prove his claim, fills out a questionnaire in which he makes a short
statement of his religious beliefs and cites evidence, such as prior public
expression of his views, to demonstrate his sincerity. If, on the basis of this and

a personal interview, the local Board decides that the requisite beliefs are
sincerely held, the registrant will be classified a conscientious objector. If the
local Board denies the claim, the registrant has a right of appeal to the Appeal
Board. That Board, before reaching a final decision, refers the registrant's file to
the Department of Justice for 'inquiry and hearing.' As the first step in this
auxiliary procedure, the Federal Bureau of Investigation investigates the
registrant's claim and refers its report to a hearing officer of the Department of
Justice. The registrant may then appear before this officer to present evidence
and witnesses in his behalf. After this, the hearing officer makes a report to his
superiors in the Department of Justice, suggesting a disposition of the case. The
Department, after reviewing the registrant's file, the FBI report and the report of
the hearing officer, writes a short recommendation, stating its reasons and
whether it has concurred in or overruled the suggestion of the hearing officer.
This recommendation of the Department of Justice is transmitted to the Appeal
Board and placed in the registrant's file. The statute provides that 'the appeal
board shall, in making its decision, give consideration to, but shall not be bound
to follow, the recommendation of the Department of Justice * * *.' 62 Stat. 613,
50 U.S.C.Appendix, 456(j), 50 U.S.C.A.Appendix, 456(j). The Appeal
Board, then, on the basis of the registrant's full file before it, comes to its
conclusion, which, in the usual case, is the final determination of the Selective
Service System. 62 Stat. 620, 50 U.S.C.Appendix, 460(b)(3), 50
U.S.C.A.Appendix, 460(b)(3).
3

There is no direct judicial review of the actions of the Appeal Boards.

Questions concerning the classification of the registrant may be raised either in
a petition for habeas corpus or as a defense to prosecution for failure to submit
to induction into the armed forces. All four of the cases decided today have
arisen through the latter route.

On January 31, 1951, Witmer filed his classification questionnaire, together

with an explanatory letter stating that he worked 40 hours a week in a hat
factory and also cultivated a portion of his father's farm. In the letter, Witmer
stated that he intended to bring more of the farm under cultivation and closed,
'For this reason I am appealing to you to grant me an agricultural classification
as I assure you that I will increase production year after year, and contribute a
satisfactory amount for the war effort and civilian use.'2

In his general questionnaire, Witmer expressly disclaimed any ministerial

exemption by writing the phrase, 'Does not apply,' opposite the line inquiring
whether he was a 'Minister, or Student Preparing for the Ministry.' He did claim
to be a conscientious objector, however, although, on the special form for those
claiming such classifications, he failed to fill in the specifications supporting

his objections to combatant or noncombatant service. On this special form,

witmer wrote 'My training and belief in relation to a Supreme Being involves
duties superior to those arising from any human relation. This prevents me from
turning aside from those superior duties which I owe to a superior Being.'
Therefore, he wrote, he was required to maintain neutrality in the 'combats of
this world,' and was permitted the use of force only 'at the command of
Almighty God.' Although he inserted a negative answer to the question asking
whether he had given public expression to his conscientious objector views, he
claimed that he had demonstrated his convictions by studying the Bible and by
telling others about God's Kingdom and 'of how He will put a stop to all wars.'
6

On February 21, 1951, the local Board classified Witmer IA, denying his
claims for classification as a farmer and a conscientious objector. Eight days
later, he wrote the Board advising them that he intended to appeal from their
action and requesting classification as 'a minister of the gospel.' Less than a
week after posting this claim, he left his job in the hat factory, and shortly
thereafter, at his appearance before the local Board, Witmer presented an
affidavit from a local officer of the Jehovah's Witnesses that he had 'on many
occasions' engaged in the 'preaching of the good news or gospel to others.' At
the same time, he submitted a written statement that he carried Bibles and study
aids from door to door, and, further, that one could be ordained as a minister of
the Jehovah's Witnesses without attending a seminary or performing funeral or
marriage ceremonies. In this statement Witmer wrote, 'The work that I now do
is of greatest universal importance therefore I could not take part in a conflict
of national or even international importance.' At the conclusion of the hearing,
the Board felt the evidence did not warrant classification as a minister and
'informed the registrant his case would be sent up to the Appeal Board
following his physical examination.'3

The Appeal Board, pursuant to the Act, forwarded the case to the Department
of Justice. Apparently, the FBI report contained nothing unfavorable to
petitioner and even included statements that he appeared 'very religious and
very sincere' and that he had said it was wrong to go to war.

At the Department hearing, Witmer asserted that he could not engage in

noncombatant service since he felt that 'the boy who makes the snow balls is
just as responsible as the boy who throws them.' On the basis of the entire file,
including the FBI report and the interview, the hearing officer suggested a
conscientious objector classification. The Department of Justice, however,
concluded that Witmer's inconsistent statements together with his offer to
contribute to the war effort precluded such a classification and recommended to
the Appeal Board that Witmer's claim be denied. After consideration, that

Board retained petitioner in IA, and when ordered to report for induction, he
refused to submit. This prosecution followed, and Witmer's conviction, 115
F.Supp. 19, was affirmed by the Court of Appeals for the Third Circuit, 213
F.2d 95. We granted certiorari 348 U.S. 812, 75 S.Ct. 42.
9

The primary question here is whether, under the facts of this case, the narrow
scope of review given this Court permits us to overturn the Selective Service
System's refusal to grant petitioner conscientious objector status. It is well to
remember that it is not for the courts to sit as super draft boards, substituting
their judgments on the weight of the evidence for those of the designated
agencies. Nor should they look for substantial evidence to support such
determinations. Dickinson v. United States, 1953, 346 U.S. 389, 396, 74 S.Ct.
152, 157, 98 L.Ed. 132. The classification can be overturned only if it has 'no
basis in fact.' Estep v. United States, 1946, 327 U.S. 114, 122, 66 S.Ct. 423,
427, 90 L.Ed. 567. In Dickinson v. United States, 1953, 346 U.S. 389, 74 S.Ct.
152, 155, 98 L.Ed. 132, the most recent case in which this Court has applied
this standard to the facts of a particular case, we set aside the conviction,
holding that the local Board had wrongfully denied the registrant a ministerial
classification. The objective facts on which Dickinson based his claim as a fulltime minister were undisputed, and they placed him squarely within the terms
of the Act. It was not for the Board to say whether he was motivated by sincere
religious principles in becoming a minister, or whether his convictions were
deep, but merely, as the Act provides, whether he was a 'regular or duly
ordained minister of religion' as therein defined. The Court therefore held that
the local Board's decision was without basis in fact, there being no evidence
'incompatible with the registrant's proof of exemption' to rebut his prima facie
case.

10

Petitioner argues from this that there was no specific evidence here
incompatible with his claimed conscientious objector status. But in Dickinson
the registrant made out his prima facie case by means of objective factshe
was a 'regular or duly ordained minister of religion.' Here the registrant cannot
make out a prima facie case from objective facts alone, because the ultimate
question in conscientious objector cases is the sincerity of the registrant in
objecting, on religious grounds, to participation in war in any form. In these
cases, objective facts are relevant only insofar as they help in determining the
sincerity of the registrant in his claimed belief, purely a subjective question. In
conscientious objector cases, therefore, any fact which casts doubt on the
veracity of the registrant is relevant. It is 'affirmative evidence * * * that a
registrant has not painted a complete or accurate picture * * *.' Dickinson v.
United States, supra, 346 U.S. at page 396, 74 S.Ct. at page 157. In short, the
nature of a registrant's prima facie case determines the type of evidence needed

to rebut his claim. If the issue is the nature of his activities, as in Dickinson, the
evidence providing 'basis in fact' must tend to show that his activities are other
than as stated. If, as here, the issue is the registrant's sincerity and good faith
belief, then there must be some inference of insincerity or bad faith.
11

Since Witmer stated his beliefs with apparent sincerity, and since we find no
indication anywhere in the record that his demeanor appeared shifty or evasive
or that his appearance was one of unreliability, we must examine the objective
facts before the Appeal Board to see whether they cast doubt on the sincerity of
his claim.

12

We note that when Witmer asked his Board for classification as a farmer, he
knew that the land involved in his request had not been cultivated for 23 years,
save for a few acres used for family purposes. At that time, he swore that the
ministerial classification did not apply to him. Yet in Marchafter he knew his
claim for exemption as a farmer had been deniedhe just as fervently claimed
he was a full-time minister.4 Furthermore, although he asserted his
conscientious objector belief in his first exemption claim, in the same set of
papers he promised to increase his farm production and 'contribute a
satisfactory amount for the war effort.' Subsequently, he announced 'the boy
who makes the snow balls is just as responsible as the boy who throws them.'
These inconsistent statements in themselves cast considerable doubt on the
sincerity of petitioner's claim. This is not merely a case of a registrant's
claiming three separate classifications; it goes to his sincerity and honesty in
claiming conscientious objection to participation in war. It would not be mere
suspicion or speculation for the Board to conclude, after denying Witmer's
now-abandoned claims of farmer and minister, that he was insincere in his
claim of conscientious objection. Even firemen become dubious after two false
alarms. Aside from an outright admission of deceptionto expect which is
pure naivetythere could be no more competent evidence against Witmer's
claimed classification than the inference drawn from his own testimony and
conduct. There are other indications which, while possibly insignificant
standing alone, in this context help support the finding of insincerity. Among
these is petitioner's failure to adduce evidence of any prior expression of his
allegedly deeply felt religious convictions against participation in war.

13

With due regard for the policy of Congress, which was to make review within
the Selective Service System final in all cases where there was conflicting
evidence or where two inferences could be drawn from the same testimony, we
cannot hold that petitioner was wrongfully denied the conscientious objector
classification. In short, there was basis in fact for the Board's decision.

14

Petitioner also complains of the local Board's action in not formally reopening
his case at the March 19, 1951, meeting when he filed his application for
reclassification as a minister. According to the testimony of the clerk of the
Board, the Board chairman had stated that the case was out of their hands
because petitioner had taken an appeal. The record of this hearing, however,
shows that Witmer did offer his proof, and that the Board did discuss the
matter. The chairman then told Witmer that the new evidence he submitted did
not entitle him to a ministerial exemption. It is true that 1624.2(b) and (c) of
the Selective Service Regulations, 32 CFR (1949 ed.), required that the case be
reopened and the registrant reclassified. However, in view of the concurrent
findings of the trial judge and the Court of Appeals that there had, in fact, been
a reconsideration of Witmer's claims and that he was then personally advised of
his continuance in the IA classification, we think the command of the
regulation to reopen and reclassify was honored, even though the Board's action
was not tagged with these words. In this state of the record, the contention of
Witmer narrows down to mere cavilling. No prejudice is claimed from this and
we find no error. The judgment is affirmed.

15

Affirmed.

16

Mr. Justice BLACK and Mr. Justice DOUGLAS dissent.

17

Mr. Justice MINTON, concurring.

18

Because the Board's order was an allowable one under the law and not
arbitrarily taken, I concur in the result in this case.

Because of the wide divergencies in the problems presented, we shall consider

the cases before us in separate opinions. (See 75 S.Ct. 397, 403, 409.)

The record indicates that this farm had not been worked for 23 years, except for
a garden tract used for family purposes.

The minute of the local Board meeting is as follows:

'March 19, 1951
'Re: Order #36283071 Philip Andrew Witmer
'The Board met with registrant today. The registrant informed the Board that he

left his place of employment on March 3, where he had worked for three years
in a hat factory. The Board chairman immediately pointed out that he was
classified as 1A on February 21, which meant he left his position about two
weeks later. He then mentioned that his father had a farm which had not been
worked as a farm for 23 years but that he felt he was going to start getting this
farm in shape. Prior to this time he stated he had gotten a few acres in shape for
their own family use so that they would not be dependent upon other people.
'The registrant then pointed out that he was a minister of the Gospel and the
only evidence he presented to substantiate this fact was some paraphernalia
from the Watchtower Association of the Jehovah Witness (sic). The registrant
was asked if he was an ordained minister and he said Jehovah (sic) Witnesses
became ordained when they started distributing their literature. The Board felt
this was not sufficient evidence to warrant a 4D Classification and informed
the registrant his case would be sent up to the Appeal Board following his
physical examination.' R. 33 34, 5455.
4

Ordinarily the claim of a Jehovah's Witness to exemption as a minister, though

unfounded in law, would not reflect adversely on his good faith, since it is the
doctrine of the Jehovah's Witnesses that all are ministers.