William O. Douglas

“ It is, with all due respect, I think, a clear miscarriage of justice to allow a man to be sent off to prison where there are at best only dubious grounds for saying that the board discharged its statutory duty of considering and passing upon the conscientious objector claim. ”

“ By like reasoning, we should conclude that cases where the local board does not 'consider' the conscientious objector claim must be few and far between. Moreover, the term 'consider' is a key part of a Regulation and just as much a question of law as the phrase in issue in McKart. Men should not go to prison because boards are either derelict or vindictive. ”

“ Indeed, it was the duty of the board under the Regulations to classify the registrant 'in the lowest class for which he is determined to be eligible.' 32 CFR § 1623.2. And it is clear that the student classification of II-S is lower than the classification of a conscientious objector, I-O. In 1966 the board therefore had no occasion to pass on the conscientious objector claim. ”