c29:No. 20010

BROOKS, Circuit Judge
(concurring in the judgment).
I concur in the judgment reached in this case. I disagree, however, with the Court’s conclusion that a “lack of understanding [of the relevant criteria for a ministerial exemption] does not require reversal when the record demonstrates that both the local board and appeals board considered the claim for ministerial exemption and there is a basis in fact in the record to support the conclusion. * * * ” To so hold extends judicial review of Selective Service classifications beyond the statutory authorization and the case law of Robertson v. United States, 417 F.2d 440 (5th Cir. 1969), and United States v. Tichenor, 403 F.2d 986 (6th Cir. 1968). The statute 50 U. S.C. App. § 460(b) (3) relating to judicial review of criminal prosecutions under the Selective Service Act provides “[t]hat such review shall go to the question of the jurisdiction herein reserved to local boards, appeal boards, and the President only when there is no basis in fact for the classification assigned to such registrant.” The cases are legion which hold that this provision permitting review “only when there is no basis in fact for the classification” mandates that courts have only an extremely narrow scope of review of classifications given registrants by the Selective Service Agencies.
The phrase “no basis in fact” as used in the statute has received judicial construction which has tended to expand the scope of court review of Selective Service classifications. Thus, while the phrase seems to connote that review of classifications is permitted only when there is no physical evidence to support a particular classification, see e. g., Dickinson v. United States, 346 U.S. 389, 74 S.Ct. 152, 98 L.Ed. 132 (1953); Maynard v. United States, 409 F.2d 505 (9th Cir. 1969); Petrie v. United States, 407 F.2d 267 (9th Cir. 1969); Pine v. United States, 212 F.2d 93 (4th Cir. 1954), it has been interpreted to permit review when the classification results from arbitrary or capricious conduct, Parrott v. United States, 370 F.2d 388 (9th Cir. 1966) or when basic concepts of due process or fairness have been violated, Niznik v. United States, 173 F.2d 328 (6th Cir. 1949); Vaughn v. United States, 404 F.2d 586 (8th Cir. 1968), or where Selective Service statutory regulations or procedures have not been properly followed, Robertson v. United States, supra; Foley v. Hershey, 409 F.2d 827 (7th Cir. 1969), or where a classification has been based upon an erroneous view of the law, United States v. Tichenor, supra; Owens v. United States, 396 F.2d 540 (10th Cir. 1968); Gatchell v. United States, 378 F.2d 287 (9th Cir. 1967).
In the present case appellant seeks judicial review of his classification because an admittedly erroneous standard was used by the local board in considering whether he should have been granted a ministerial classification. When this defense is raised to a criminal prosecution for violation of the Selective Service Act, the law is that a conviction cannot be sustained if it is shown that both the local board and the state appeal board have applied an incorrect standard to deny a registrant a particular classification. See, Sicurella v. United States, 348 U.S. 385, 75 S.Ct. 403, 99 L.Ed. 436 (1955); United States v. Tichenor, supra; Owens v. United States, supra; Gatchell v. United States, supra. Under these circumstances, it is loosely said that there is “no basis in fact” for the classification, see Gatchell v. United States, supra, however, it would be more accurate to say that the conviction cannot be sustained because the law was incorrectly applied. The cases which have explored the application of the rule have involved situations where the local board applied an incorrect standard which affirmatively appeared in the registrant’s file and upon review by the state appeal board, there apparently was no recognition of the error or correction of it, United States v. Tichenor, supra, or it clearly appeared from the record that the appeal board applied an incorrect standard in considering the classification, Sicurella v. United States, supra; Gatchell v. United States, supra.
The thrust of these authorities is to carve out an exception to the presumption that a state selective service board is required upon appeal to review de novo a registrant’s request for a certain classification, see C.F.R. § 1.1626.26. Ordinarily, it is presumed that even though an erroneous standard is applied by a local board in denying a requested classification, the state appeal board will, by independently reviewing the registrant’s file, apply the correct standard thereby curing the error, even if no change in the classification results. See United States v. Rose, 424 F.2d 1051 (6th Cir. 1970); Landau v. Allen, 424 F.2d 668 (6th Cir. 1970); DeRemer v. United States, 340 F.2d 712 (8th Cir. 1965); Tomlinson v. United States, 216 F.2d 12 (9th Cir. 1954). In the cases in point, this presumption was held not to exist where it clearly appeared in the appeal board’s decision itself that an incorrect standard was applied (this was the case in Sicurella v. United States, supra; and Gatchell v. United States, supra), or that the presumption could not be indulged in where the error committed by the local board actually appeared in the record reviewed by the state board and no mention was made that the error was noticed or corrected (this was the case in United States v. Tichenor, supra).
The facts which existed in Gatchell, Sicurella or Tichenor are not present in this case. Appellant Griffin’s file contained two written requests for a ministerial classification, and Griffin renewed this request in an out-of-the-ordinary personal appearance before the state appeal board when it was considering his case. Appellant’s file did not show that the local board applied an incorrect standard and the decision of the appeal board only states that appellant was classified 1-0. Cf. Gatchell v. United States, supra. Under these facts it must be concluded that a case has not been established to invoke the exception to the rule that an appeal board’s independent de novo review cures an erroneously applied standard. See United States v. Rose, supra. Since a case has not been established to invoke the exception to the rule, this Court should not review the record to find physical evidence to support appellant’s classification resulting from the state appeal board’s de novo review.
I also disagree with the comment in the Court’s opinion relating to the “severity” of the sentence imposed in this case, Since, within statutory limitations, the length of a sentence lies solely within the discretion of the district judge, I do not think an appellate court should undertake to comment upon its reasonableness. A district judge has before him all the necessary information upon which to base a proper exercise of discretion, whereas an appellate court does not. I see no objection, however, to our suggestion that the district court might consider suspending sentence and granting probation on condition that the appellant perform the conscientious objector work under order of the Court that he has refused to perform under order of the Selective Service Board.

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