Hackett v. Laird

• Decision Date: 03 May 1971
• Docket Number: Civ. A. No. SA-71-CA-59.
• Citation: 326 F. Supp. 1075
• Parties: Paul G. HACKETT v. Secretary of Defense, Melvin LAIRD et al.
• Court: U.S. District Court — Western District of Texas

326 F. Supp. 1075

Paul G. HACKETT v. Secretary of Defense, Melvin LAIRD et al.

Civ. A. No. SA-71-CA-59.

United States District Court, W. D. Texas, San Antonio Division.

May 3, 1971.

Gerald H. Goldstein, Levey & Goldstein, San Antonio, Tex., for plaintiff.

Seagal V. Wheatley, U. S. Atty., by Henry Valdespino, Asst. U. S. Atty., San Antonio, Tex., for defendants.

MEMORANDUM OPINION

JOHN H. WOOD, Jr., District Judge.

In this Application for Writ of Habeas Corpus, Petitioner seeks separation and discharge from the U. S. Army alleging that he is a 1-O conscientious objector and as such that he is being unlawfully restrained and deprived of his liberty by the Respondents because the Department of the Army denied his request to be discharged as a 1-O Conscientious Objector.

While a student at the University of Toledo, Toledo, Ohio, Petitioner requested a 1-A-O classification in March, 1970 from his local Selective Service Board. This request was granted by the Board on March 29, 1970. Subsequently, the Petitioner was inducted into the U. S. Army on July 27, 1970 as a 1-A-O Conscientious Objector and assigned to medic training. On November 3, 1970, Petitioner made formal Application for Discharge as a 1-O Conscientious Objector and said Application was denied on January 27, 1971 by the United States Army Conscientious Objector Review Board pursuant to Army Regulation No. 635-20 4(c). As grounds for denial of the Application the Army Review Board stated that "Applicant lacks the depth of conviction required to qualify for discharge as a Conscientious Objector." The Petitioner, Private Paul G. Hackett, Serial Number XXX-XX-XXXX, is currently assigned to Headquarters and Headquarters Company, Receiving & Holding, U. S. Army Medical Training Center, Fort Sam Houston, Texas and is presently under the control of the Respondents at the Medical Field Service School, Brooke Army Medical Center, Fort Sam Houston, Bexar County, Texas.

The Petitioner's Application for 1-O status indicates that he was reared in a devoutly Roman Catholic home by his parents. Private Hackett attended Catholic primary and secondary schools in the City of Toledo, Ohio and after his graduation from St. Francis de Salles High School in June of 1968 he entered the Novitiate of the Oblates of St. Francis de Salles, a Catholic Seminary. While in the Seminary, Petitioner states that he was greatly influenced by his religious training especially such authors as St. Francis de Salles, St. Francis of Assisi, St. Augustine and Father Leilhard Chardin. Petitioner remained in the Seminary approximately nine months. He subsequently became a student at the University of Toledo.

Private Hackett's Application is replete with statements concerning the formulation of the religious beliefs he currently holds, the philosophers and teachings he relies upon and supporting statements and letters from his family, relatives, priest and friends corroborating not only the sincerity of his convictions, but also the length of time he has steadfastly held these beliefs. Private Hackett's Application further states his abhorrence of war and violence in any form, the contradiction of his beliefs and his duties resulting in the inner struggle he is undergoing as a member of the Armed Forces. He also adds, "My conviction opposing participation in war and military service became fixed after induction."

Private Hackett was found to have no psychiatric illness or mental disorder by Major John Vanderpool, Psychiatrist at Fort Sam Houston, and his Application was recommended for approval by Colonel Foster C. McCaled, Jr. and by 1st Lt. Donald W. Reuss. Assistant Post Chaplain, Woodrow L. Elias, found that the Petitioner was sincere in his beliefs but did not make a recommendation to the Board.

Major Joe H. R. Wilson recommended disapproval of the Application stating that:

"Upon interviewing Pvt. Hackett, I learned that he had no major change of religious convictions since his induction as a 1-A-O. He revealed to me that he is willing to financially support the Army and the war effort through payment of Income Tax and believes that there should be medics in the Army and in Vietnam. It is my observation that he lacks a total belief in his inability to conscientiously serve as a medic."

Major M. S. Sorenson also recommending disapproval stated:

"Application reveals no significant change in belief since entry into service. Convictions are noted to be consistent with his present status and no impediment to successful performance of the duties for which he is being prepared."

There is no finding by the Board that Petitioner is insincere in his beliefs. Major Wilson's statement that "* * * he lacks a total belief in his inability to conscientiously serve as a medic" is as near a finding of insincerity as exists in the record, but it is our opinion that there is no basis in fact for such a finding in light of the reasons given by the Major which indicate to this Court that the Petitioner is a law abiding and humane individual. Therefore, sincerity is not the issue here, rather as the Board stated, "Applicant lacks the depth of conviction required to qualify for discharge as a Conscientious Objector."

In Helwick v. Laird (Fifth Cir., February 16, 1971) 438 F.2d 959 the Court of Appeals for the Fifth Circuit has indicated that with the possible exception of conscientious objection arising under the limited situation described in Welsh v. United States, 398 U.S. 333 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970) there may very well not be such a criterion as "depth of conviction". As the Court of Appeals in Helwick v. Laird, supra, stated:

"This (depth of conviction) is a verbalism without any real meaning in this factual context. We are astonished that `depth and maturity' are prerequisites to conscientious objection to war."

Therefore, it would seem that where one's objection to participation in war in any form is based upon traditional religious beliefs, "depth" no longer serves as a meaningful criteria. "Depth" and "Sincerity" are not synonymous. Rather "Depth" is used as a measuring device to determine the degree of or intensity of "Sincerity" and only applies in cases where the conscientious objection does not arise from a traditional religious belief.

Due to the voluminous number of conscientious objector cases arising in the past few years and the subjective determinations which must be made by the Army interviewers and Review Board as well as the difficulty of interpreting and applying the Regulations, Statutes and case law on the subject, it is little wonder that much confusion exists in the application of the law to this nebulous area of jurisprudence. This would seem to be the situation in the case before the Court. It appears from the Army Review Board's opinion and from the Brief of the Respondents that the recent decision by the Fifth Circuit Court of Appeals in Helwick v. Laird, supra has been misinterpreted or at least misapplied. This misapplication is particularly apparent in considering Army Regulation 635-20(3) (b) which states that it is the objection itself—the objection to participation in war in any form — that must become fixed only after entry into the Army. The Fifth Circuit in Helwick v. Laird, supra, addresses itself to this Regulation especially to point out that:

"Indeed, the claimant may properly hold the same or similar religious beliefs both before and after his entry into the service. Rather the requirement of A.R. 635-20(3) (b) is that the objection itself — the objection to participation in war in any form — must become fixed only after entry into the Army."

Thus, under this case, the fact that Petitioner's present opposition to participation in war is derived from earlier experiences with religious training is not a basis in fact to doubt the "depth" of his conviction; if anything, it would constitute evidence of greater "depth". It is not required that the beliefs become fixed after entry into the service, only that one's opposition or objection to participation in war become fixed after entry. The words "beliefs" and "objection" are not interchangeable — rather, it is crucial to distinguish when the "objection" to participation in war in any form arose so as to make such participation untenable in relation to the "beliefs" held by the Applicant.

The Respondents through their Brief claim that there is evidence in the Application of prior inconsistent statements made by the Petitioner which blur or taint the record, thereby casting doubt on Petitioner's sincerity. This Court holds that no such finding was made by the Conscientious Objector Review Board as...