Weber v. Inacker, Civ. A. No. 70-1545.

• Decision Date: 18 September 1970
• Docket Number: Civ. A. No. 70-1545.
• Citation: 317 F. Supp. 651
• Parties: Joseph Franklin WEBER v. Commanding Officer, Captain Charles J. INACKER, 157th Infantry Brigade, Horsham, Pennsylvania 19044 and Secretary of Army and Secretary of Defense.
• Court: U.S. District Court — Eastern District of Pennsylvania

317 F. Supp. 651

Joseph Franklin WEBER v. Commanding Officer, Captain Charles J. INACKER, 157th Infantry Brigade, Horsham, Pennsylvania 19044 and Secretary of Army and Secretary of Defense.

Civ. A. No. 70-1545.

United States District Court, E. D. Pennsylvania.

September 18, 1970.

COPYRIGHT MATERIAL OMITTED

Richard A. Axelrod, Shuman, Denker & Land, Philadelphia, Pa., for plaintiff.

Louis C. Bechtle, U. S. Atty., Barry W. Kerchner, Asst. U. S. Atty., Philadelphia, Pa., for defendants.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

JOHN W. LORD, Jr., Chief Judge.

FINDINGS OF FACT

1. Petitioner, Joseph Weber, is a Private in the United States Army Reserves. He enlisted in the Reserves on August 26, 1968.

2. Respondents are the civilian and military officials who have custody of the person of petitioner and who exercise control over him pursuant to their authority under law.

3. On March 31, 1969, petitioner formally applied for discharge as a conscientious objector under Army Reserve Regulation 135-25.

4. Private Weber was instructed in writing to submit to the unit commander supporting documents for his claim.

5. In support of his claim petitioner submitted references from Stanley H. Shapiro, M. D., Michael P. Davis, William C. Soden, Jr., Dr. Mathew M. Shapiro and John D. Bowers.

6. The reference letter of Stanley H. Shapiro, M. D. states in part:

"While I personally disagree with most of his religious beliefs and I am not myself a conscientious objector or pacifist, I have no doubt but that he is sincere in those beliefs which have led to his filing this claim." (Serviceman's United States Army Conscientious Objector Claim File, stipulated as record for this Court in hearing before this Court (hereinafter "Hearing Record") p. 23).

7. The letter of Michael P. Davis states in part:

"* * * In my opinion, Joe's convictions are very strong. He believes in what he is doing with all his being. He is as sincere, dedicated and intelligent as any young man I've ever had the pleasure of associating with. * * *" (Hearing Record, p. 26).

8. The reference letter of William C. Soden, Jr. states in part:

"* * * If I were in Joe's position, I would be satisfied with being a member of the reserves. However, the sincerity and intensity of his beliefs, which I find unquestionable will not allow him to participate in even this role which is far from active duty. His unflinching willingness to accept the consequences of his inability to enact violence or assume a role in compliance with such violence is, I believe, a testament to his sincerity." (Hearing Record, p. 27).

9. The reference letter of Dr. Mathew M. Shapiro states in part:

"I have discussed with Joseph his beliefs that lead him to claim the status of conscientious objector. I do not myself share these beliefs. I have attacked them and listened critically to his defense of them. He sincerely believes that he does not have the right to kill another human being for any reason. * * *

* * * * * *

"If a sincere, religious belief in nonviolence, and leading a life which in action exemplifies this belief, are the requisite qualifications, then Joseph Weber qualifies for the status of conscientious objector." (Hearing Record, p. 28).

10. The reference letter of John D. Bowers states in part:

"* * * I am able to affirm that Joe Weber, to the best of my knowledge, honestly is repelled by the philosophy of violence and the military. I believe that he is sincere in these feelings, although they were not apparent to him when he enlisted. When he says that it would be impossible for him to function in any sort of a military capacity, I trust him.

* * * * * *

"* * * We have talked at great length on this subject, and although I think his reasoning has serious flaws in it, I do not quarrel with his sincerity." (Hearing Record, p. 31).

11. On May 13, 1969, Unit Commander Charles J. Inacker counseled Private Weber and explained the provisions of Army Reserve Regulation 135-25. During the interview he questioned Private Weber to try to determine the sincerity of his stated convictions. On September 7, 1969, he filed a report with respect to petitioner's conscientious objector claim. In this report, Unit Commander Inacker recommended that Private Weber's request for discharge be disapproved, but recommended that Private Weber be assigned to a medical unit where he could perform noncombatant duties. His reason for this recommendation was that he believed that Private Weber must have understood the mission of the army at the time of his enlistment in the Reserves and should not have enlisted if he then held his present views. (Hearing Record, pp. 3, 8). However, Unit Commander Inacker stated in part in his report:

"(3) While counselling the subject EM, he informed the undersigned that he will not perform military duties, combatant or non-combatant, under any conditions. In the event that his request for discharge is disapproved, he is ready to accept whatever punishment is awarded rather than serve in the military. He is aware that this may mean an extensive jail term. PVT Weber is quite firm in his conviction." (Hearing Record, p. 8).

12. On May 20, 1969, petitioner was counseled and interviewed by the Brigade Chaplain, Major William Emery, as required by Army Reserve Regulation 135-25, paragraph 7b(1). In his report Major Emery stated in part:

"3. In my judgment, Private Weber is sincere and holds strong thoughts and feelings, amounting to firm conviction in support of his request for a discharge on the grounds of conscientious objection to military service of any sort, in any conflict, whether as a combatant or non-combatant. In his replies to questions, while he was sometimes vague and sometimes demonstrated a lack of formal or extensive training in theology or meta-physical philosophy, a generally conherent sic and cohesive pattern of opinion and belief as set forth in the written statements was evident. He believes it wrong for any human to engage in physical violence against any other human in any organized, pre-meditated manner.

"4. * * *

"From his reading, his studies, his discussion with friends and acquaintances, and from the general cultural milieu, Private Weber has gathered a body of belief which is definitely religious and would be identified as such by most clerics, despite the absence of formal affiliation with any religious body. No one teacher, cleric or mentor has determined in any very significant manner, the set of values and beliefs which cause Private Weber to claim conscientious objection. He is not a member or adherent of any group which attempts to encourage others in this position." (Hearing Record, p. 36).

13. Following the interview with the Chaplain, an appointment with a military psychiatrist was arranged by Unit Commander Inacker for petitioner. The report states that Private Weber is fit for duty.

14. On July 1, 1969, petitioner appeared with counsel before an officer in the grade of Captain or higher who is familiar with the provisions of Army Reserve Regulation 135-25 (as required by Army Reserve Regulation 135-25). That officer was Major Arthur Patterson. A verbatim transcript of that interview is part of the present record. Major Patterson states in part therein:

"I sincerely believe, personally, that you probably have a deep feeling about your convictions, and I don't wish to try to ridicule you for your conviction. We should sit down and try to analyze them, put them in the right perspective, and this is what I am trying to do here, to sit down and listen to you and your attorney and read what you have put down on paper, and give my opinion what I think your basic convictions are.

"I certainly believe you are sincere in what you believe in, and I will certainly act accordingly when I forward the papers to the higher headquarters. * * *" (Hearing Record, p. 63.)

15. Major Patterson filed a report (undated) as a result of this interview. This report states in part:

"* * * Although this individual is sincere in his feelings I do not believe his objections fall within the purview of paragraph 3b(1), AR 135-25. I believe that his views are of a philosophical nature which are based on the Viet Nam conflict.

"In view of the above it is recommended that Pvt. Weber be classified as a conscientious objector because he is opposed to combatant training and service and be classified (1-A-O). It is further recommended that subject enlisted man be reassigned to a non-combatant unit within the Philadelphia area." (Hearing Record, p. 71).

16. On October 15, 1969, the Office of Personnel Operations, U. S. Army Reserve Components, requested by letter an opinion from the Director, National Headquarters, Selective Service System, as to whether Private Weber would qualify for a conscientious objection classification if it were not for his Army Reserve status. On November 18, 1969, Assistant to the Director replied by letter as follows:

"This is in reply to your request, reference as above, for our review of the application of Private Joseph F. Weber for discharge from the Army Reserve on the grounds of conscientious objection.

"Based on the information contained in the applicant's file, which you have furnished us, it is the opinion of this Headquarters that Private Weber would not be classified as a conscientious objector if he were being considered for classification under the Military Selective Service Act of 1967, at this time.

"Your file is returned." (Hearing Record, p. 75).

17. Without interviewing petitioner personally and solely on the basis of the documents excerpted above (which documents appear in full in the Hearing Record in this Court), of the application and letters submitted by petitioner himself and of certain other documents with no direct bearing on petitioner's conscientious objector claim (all a part of the Hearing Record in this Court), the Conscientious Objector Review Board made its decision rejecting petitioner's claim...