332 F.Supp. 1280 (S.D.Ga. 1971), Civ. A. 1652, United States ex rel. Johnson v. Resor

Docket NºCiv. A. 1652
Citation332 F.Supp. 1280
Party NameUnited States ex rel. Johnson v. Resor
Case DateOctober 06, 1971
CourtUnited States District Courts, 11th Circuit

Page 1280

332 F.Supp. 1280 (S.D.Ga. 1971)

UNITED STATES ex rel. James S. JOHNSON, Pvt. E-2, United States Army, SSAN: 497-50-5522, Petitioner,


Stanley R. RESOR, Secretary of the Army, and Commanding General, Fort Gordon, Georgia, Respondents.

Civ. A. No. 1652.

United States District Court, D. Georgia

Oct. 6, 1971

Final Order Oct. 8, 1971.

Page 1281

Peter E. Rindskopf, Atlanta, for petitioner.

R. Jackson B. Smith, U. S. Atty., Edmund A. Booth, Jr., Asst. U. S. Atty., Augusta, Ga., for respondents.


LAWRENCE, Chief Judge.

Petitioner seeks discharge from the Army claiming that he was unlawfully inducted on September 28, 1970 and that he is being illegally held in custody by the Respondents. Private Johnson claims that he was denied procedural due process and that there was a violation of Army Regulations in that (a) he should have been classified I-S(C) 1 by the Local Board instead of I-A; (b) that he was not given thirty days to complete his SSS Form 150 (conscientious objection) before being notified to report for induction; (c) that the Board furnished him an obsolete and inapposite pre- Welsh 2 form which was concerned only with exemption from military service by reason of "religious training and belief" and (d) that the Army Conscientious Review Board should not have denied his post-induction application for discharge.

A hearing was held at Savannah on July 8, 1971. The case was submitted to this Court on the records and on briefs.

While chronologically improper, I will consider first the matter of the Review Board's denial of Petitioner's claim for discharge on the ground of conscientious objection to war in any form.

Page 1282



At the time of his induction Petitioner was a graduate student in anthropology at the University of Kansas. He commenced his studies there in August, 1970. A few weeks later he was ordered to report for induction and was inducted on September 28, 1970. Prior to enrollment in the graduate school Johnson graduated from the University of New Mexico as a pre-law major. He had applied for admission to the law school in April 1970. Petitioner was an excellent student. According to a letter in the file from a professor in the Anthropology Department, he is "an extremely intelligent, level-headed, and dedicated young man and we can foresee a truly productive career for him in teaching and research production in anthropology."

Approximately four weeks after induction Private Johnson filed a request with the Army for discharge as a Conscientious Objector. His "Statement" characterized war as a "stupidly wasteful, as well as cruel, way of attempting to settle human difference." "I can not and will not take a human life under any circumstances," he said. He further stated, "I will never kill, injure or maim; nor will I order someone else to do this; nor will I train others to kill and die." Johnson described himself to the interviewing chaplain as a "scientific moralist." 3 He claims to be a "citizen of humanity."

Petitioner says he was shocked during basic training to find so many advocates of violence. "The word kill is everywhere." He was appalled with the M-16 rifle-"the most evil man-made device I have ever directly come into contact with." 4

Following the filing of the request for discharge, Johnson was interviewed by a J.A.G. hearing officer who found him "truly opposed to the participation in any organization which advocates or uses violence." Captain Brody reported that participation in war would corrupt his beliefs and ideals and discharge was recommended. The Assistant Brigade Chaplain concluded that Johnson was opposed to military service in any form and that he was sincere in his beliefs. The commanding officer of his Company had several consultations with the inductee and became convinced of his sincerity. In fact, every officer in the chain of command at Fort Polk who interviewed Private Johnson found him sincere and recommended discharge from the Army.

On March 15, 1971 the Conscientious Objector Review Board found that Johnson's desire to continue his anthropological studies was the basic and real reason behind his request for discharge and that he did not possess deeply held beliefs against participation in war in any form. The Board emphasized his statement that "I am not trying to avoid my military obligation, I only want to contribute my anthropological talent in an area pertinent to peaceful human harmony. I wish to be allowed to return to school to achieve my Ph.D. in African studies, then return to complete my active duty in Africa." Petitioner who asked for a Military Occupation Speciality to one of the African areas but "only in interest of peaceful co-existence" thinks that the "myth" must be stripped away before "the reality of Africa emerge." He believes that qualified specialists are needed if we are to obtain "a knowledgeable understanding of African situations." None of this is inconsistent with his claim of conscientious objection and it is merely tangential to his views concerning war.

The Army Review Board had no basis in fact for deciding that Private Johnson is primarily motivated by

Page 1283

the desire to continue his study of anthropology. His post-induction request for discharge clearly made out a prima facie case of conscientious objection and shifted the burden to the Army to prove otherwise. In such cases affirmative refutatory proof is required to defeat the claim. United States v. White, 5 Cir., 421 F.2d 487, 492; McMahan v. Laird, D.C., 320 F.Supp. 485, 409f; Confield v. Tillson, D.C., 312 F.Supp. 831; Hackett v. Laird, D.C., 326 F.Supp. 1075; United States v. Stetter, 5 Cir., 445 F.2d 472. There must be something in the record to support a rejection, substantially blurring the picture painted by the applicant. Kessler v. United States, 5 Cir., 406 F.2d 151; Helwick v. Laird, 5 Cir., 438 F.2d 959; Weber v. Inacker, D.C., 317 F.Supp. 651. Disbelief, surmise or speculation are not enough. Helwick v. Laird, supra; United States ex rel. Armstrong v. Wheeler, D.C., 321 F.Supp. 471; United States v. White, supra; United States v. Stetter, supra.

I do not think that trying to read a soldier's mind as to his primary motivation for seeking discharge from the Army overcomes the case made out by Private Johnson for discharge. However, in view of the conflicting contentions of the parties concerning the legal effect of the pre-induction denial of C.O. status to Johnson by Selective Service Board No. 50, Kansas City, its file relating to James Solomon Johnson is highly relevant.



The records of Board No. 50 reflect that from 1965 to August, 1970, the registrant never said a word about being opposed to war. He received a II-S deferment each year for four years while a student at the University of New Mexico. On April 21, 1970, he was re-classified as I-S(C) until June of that year. At the expiration of that period and following his graduation he was classified I-A. He appealed the ruling and it was affirmed by...

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