"includes the right to file a meaningful statement, one based on all the facts in the file and made with awareness of the recommendations and arguments to be countered." Gonzales v. United States, 348 U.S. 407, 415, 75 S.Ct. 409, 414, 99 L.Ed. 467 (1955). In Gonzales the Court found this right "implicit in the Act and Regulations — viewed against our underlying concepts of procedural regularity and basic fair play."
Here, by contrast, Mrs. Buck not only had a full, adversarial evidentiary hearing, but had available to her the opportunity to respond to the trial examiner's recommendation at the Board's public meeting. The second case cited, but not discussed, by the district court is Gonzales v. United States, 348 U.S. 407, 75 S.Ct. 409, 99 L.Ed. 467 (1955), where the Supreme Court held as a matter of statutory construction that the Military Selective Service Act in effect at that time, 62 Stat. 604 et seq. (1948), as amended, 50 U.S.C.App. § 451 et seq., required that a candidate whose application for conscientious objector status was being considered be afforded an opportunity to present a reply to the Justice Department's recommendation of denial in his case. Gonzales, a Jehovah's Witness, was denied conscientious objector status by his local draft board.
Thus a delicate balance must always be maintained in resolving the legal issue before me. Therefore, I am limiting my inquiry, decision, and holding in this case to the following issue: Whether or not the petitioner, herein, had a constitutional right of access to his entire "case file" and a right to reply to any adverse evidence contained therein, before his "case file" was forwarded to the Chief of Naval Personnel for his final determination of petitioner's request? The starting point in resolving this issue is the case of Gonzales v. United States, 348 U.S. 407, 75 S.Ct. 409, 99 L.Ed. 467 (1955). Gonzales involved a registrant under the Selective Service System who had sought a conscientious objector exemption from his local board; his claim was denied.
Appellant, here on appeal from the judgment of the district court, argues for a reversal of conviction on several grounds, but we need discuss only his claim that he was denied procedural due process because he was not furnished with a copy of the recommendation of the Department of Justice to the Appeal Board. At the time of the trial of this case, the opinion and decision in the case of Gonzales v. United States, 1955, 348 U.S. 407, 75 S.Ct. 409, 99 L.Ed. 467, had not been handed down by the Supreme Court, and whether a copy of the Department's recommendation must go to the registrant had not been settled. It will be recalled that the Supreme Court said in its Gonzales, supra, opinion, 348 U.S., at page 414, 75 S.Ct., at page 413, that a registrant: "was entitled to know the thrust of the Department's recommendation so he could muster his facts and arguments to meet its contentions.
The Supreme Court has prohibited any speculation in determining whether the draft boards and the Department of Justice have complied with the procedural due process requirements. — Simmons v. United States, 1955, 348 U.S. 397, 404-406 [ 75 S.Ct. 397, 99 L.Ed. 453]; Gonzales v. United States, 1955, 348 U.S. 407, 414-417, [ 75 S.Ct. 409, 99 L.Ed. 467]; compare Steele v. United States, 1 Cir., 1956, 240 F.2d 142. "It is manifest that the Department of Justice may have withheld vital and material evidence handed to the FBI, favorable to defendant, that should have been forwarded by it to the appeal board but that was not submitted to the appeal board by the Department of Justice in the resume."
This procedure which denied him access and a chance to respond to the reports, he asserts, violated due process. The case of Gonzales v. United States, 348 U.S. 407, 75 S.Ct. 409, 99 L.Ed. 467 (1955), concerned a registrant who had sought a conscientious objector exemption from his local draft board. After his local board denied his claim, the registrant appealed to an Appeal Board.
Even though one might argue that the statements just quoted were somewhat ambiguous, we feel that in the context of this proceeding they were clearly prejudicial to appellant's claims. We believe this case is controlled by Gonzales v. United States, 348 U.S. 407, 75 S.Ct. 409, 99 L.Ed. 467 (1955). We recognize that Gonzales dealt with Selective Service appeal procedures which have now been repealed.
It is obvious from an examination of this résumé that it incorporates the information obtained in both the original FBI investigation and the later supplementary investigation and that consequently all of the facts developed during the investigation were made known to the defendant at the time of his second hearing. This being so, he had ample opportunity to refute them both during the said hearing and also in the written reply which he was allowed to make to the appeal board after receipt of a copy of the Department's advisory report and recommendation as required by the Supreme Court in its decision in Gonzales v. United States, 348 U.S. 407, 418, 75 S.Ct. 409, 99 L.Ed. 467. The defendant's argument in connection with this point that the Selective Service System and the Department of Justice have gotten the first hearing and the second hearing so mixed up together that it was impossible for the appeal board to render a fair decision in the case appears to me to be frivolous. No attack was made by the defendant upon the sufficiency of the first hearing in any particular except his contention that a fair résumé of the adverse evidence in the FBI report was not provided him. Since this defect — if any such defect in fact ever existed — was unquestionably cured by the provision to the defendant of a fair résumé of the complete FBI report at the time of his second hearing, the defendant cannot possibly have been prejudiced by any such omission at the time of the first hearing. I do not see how the defendant can conscientiously complain that he was granted two hearings instead of one.
Id . Similarly, in Gonzales v. United States , 348 U.S. 407, 75 S.Ct. 409, 99 L.Ed. 467 (1955), the Supreme Court considered what is required for a selective service registrant claiming a conscientious objection exemption to be provided a "fair" and "just" process. In defining what can constitute a "fair" and "just" proceeding, the Court held that "a prime requirement of any fair hearing" is that the decisionmaker cannot make use of evidence of which the party was never aware and had no chance to answer.
Although the Air Force is not required to discharge in-service conscientious objectors, once such mechanisms are established they must meet at least the minimal standards of "procedural regularity and basic fair play." Gonzales v. United States, 348 U.S. 407, 412, 75 S.Ct. 409, 412, 99 L.Ed. 467 (1955). When the Air Force establishes regulations, it should follow them.