Baker v. Laird, Civ. No. C-70-1372.

• Decision Date: 31 July 1970
• Docket Number: Civ. No. C-70-1372.
• Citation: 316 F. Supp. 1
• Court: U.S. District Court — Northern District of California
• Parties: PFC E-3 Bruce Dale BAKER, Petitioner, v. Melvin R. LAIRD, Secretary of Defense, Stanley R. Resor, Secretary of the Army, and Major General Philip B. Davidson, Jr., Commanding General, Fort Ord, California, Respondents.

316 F. Supp. 1

PFC E-3 Bruce Dale BAKER, Petitioner, v. Melvin R. LAIRD, Secretary of Defense, Stanley R. Resor, Secretary of the Army, and Major General Philip B. Davidson, Jr., Commanding General, Fort Ord, California, Respondents.

Civ. No. C-70-1372.

United States District Court, N. D. California.

July 31, 1970.

Richard M. Silver, Heisler & Stewart, Carmel, Cal., for petitioner.

James L. Browning, Jr., U. S. Atty., Richard F. Locke, Asst. U. S. Atty., San Francisco, Cal., for respondents.

Opinion and Order Granting Petition for Writ of Habeas Corpus

GERALD S. LEVIN, District Judge.

Petitioner Bruce Dale Baker is presently a Private First Class in the United States Army stationed at Ford Ord, California. He brings this petition for a writ of habeas corpus in order to secure his discharge from military service as a conscientious objector, his application therefor having been denied by the Army.

The facts and events pertinent to Baker's claim are as follows. Prior to his receiving orders to report for induction, Baker was mailed SSS Form 150 (Conscientious Objector Questionnaire) on April 22, 1969, pursuant to his request, by Local Board 29 in Phoenix, Arizona. On June 13, 1969, Local Board 29 issued an order to Baker to report for induction on June 25, 1969.

On June 17, 1969, Baker returned his completed SSS Form 150 to Local Board 29, whereupon the Board immediately postponed his induction.

On August 6, 1969, Local Board 29 determined that Baker's beliefs did not qualify him for conscientious objector status and refused to reopen his case and accord him a hearing on the matter. Baker was sent a letter notifying him of the Board's decision on August 7, 1969. Thereafter, on September 3, 1969, Baker was inducted into the United States Army at Los Angeles, California.

After completing Basic Combat and Advanced Individual Training, Baker was ordered on January 21, 1970, to report to the Overseas Replacement Station, Fort Dix, New Jersey, by February 8, 1970, for ultimate assignment to Europe.

On February 2, 1970, Baker submitted his application for discharge as a conscientious objector under the provisions of Department of Defense Directive 1300.6 and Army Regulation 635-20.

Procedure under Army Regulation 635-20 calls for a series of interviews of the applicant to be conducted by a psychiatrist, chaplain, and a hearing officer in the rank of 0-3 or higher. Accordingly, on January 28, 1970, Baker had been examined by a psychiatrist, and the latter found no evidence of psychiatric disease.

On February 4, 1970, Baker was interviewed by Chaplain Rich, who concluded that Baker was sincere in his belief and objection to participation in war in any form and that Baker's conviction was primarily religious in basis and origin.

On February 12, 1970, Baker was interviewed by 0-3 hearing officer Zanoni. The hearing officer noted Baker's background and professed beliefs in his report dated March 12, 1970, putting great emphasis on the fact that Baker indicated that his views might not have been fully formed when he made his earlier application to Local Board 29 for conscientious objector status. The hearing officer concluded that,

If he Baker is to be believed, Private Baker worked a fraud upon his local draft board by applying for conscientious objector status; this would cast substantial doubt upon Private Baker's sincerity in his instant application. In my opinion, however, Private Baker attempted to deceive this hearing officer with regard to the time when his conscientious objector beliefs became fixed. I find that Private Baker's beliefs existed prior to his entry on active duty.

Accordingly, the hearing officer recommended disapproval of Baker's application on the ground that his conscientious objector beliefs "did not develop or become fixed after entry on active duty as required by para 3b(1), AR Army Regulation 635-20." Baker submitted a rebuttal letter to the report of the hearing officer dated March 10, 1970, in which he explained the strengthening of his views after entry into the Army; the fact that he was indeed sincere in making both applications, but that his current application represented a new and more confirmed position; and that the hearing officer had misunderstood or misinterpreted many of his statements to him during the course of the interview. An investigation was made into Baker's allegations by a Staff Judge Advocate who concluded that the allegations were not supported by the evidence of record.

Thereafter Baker's company commander and battalion commander, as well as the commanding general of Fort Ord, all found Baker to be sincere and unqualifiedly recommended approval of his application. In his report dated March 5, 1970, Battalion Commander Kotas noted that,

It is entirely possible that PVT Baker had certain reservations about serving in the Army prior to his induction. However, I believe that Basic Training solidified his convictions and prompted him to submit a 1-0 application even though his previous CO application was disapproved by his draft board.

On May 22, 1970, the Department of the Army Class I-O Conscientious

Objector Review Board disapproved Baker's application for the reason that Baker's professed views became fixed prior to his entry into the active military service. Notification of this decision was sent shortly thereafter to Baker.

On June 10, 1970, Baker submitted a second application for discharge. This application was reviewed by the commanding general of Ford Ord and returned without action as being substantially the same as the initial application (a permissible disposition under Army Regulation 635-20, Paragraph 5).

As the Government points out in its Memorandum, the function of this court in reviewing the claims presented by Baker is limited to ascertaining whether there was (1) compliance with the applicable provisions of Army Regulation 635-20 and (2) a basis in fact for the Army's rejection of Baker's initial application. The court finds that neither of these elements has been satisfied in the instant case and therefore Baker's petition must be granted for the reasons following.

Army Regulation 635-20, in Paragraph 3b, states as a matter of policy that,

Requests for discharge after entering military service will not be accepted when—

(1) Based solely on conscientious objection which existed, but which was not claimed prior to induction, enlistment, or entry on active duty or active duty for training.

(2) Based solely on conscientious objection claimed and denied by the Selective Service System prior to induction.

The decision of the Army Class I-O Conscientious Objector Review Board to deny Baker's application for discharge cites as its sole reason therefor the fact that Baker's professed views "became fixed prior to his entry into the active military service," which reason is based wholly upon the single adverse finding made by the 0-3 hearing officer. Such determination will not suffice to support the action of the Army here since it reflects an incorrect reading of Army Regulation 635-20.

The court does not regard the use of the word "solely" in Paragraph 3b(1) and (2) to be mere surplusage. Rather, its inclusion would indicate that the Army could deny an application for discharge to one claiming to be a conscientious objector where his application reveals that the grounds and beliefs adduced in support thereof are identical with...