Bates v. Commander, First Coast Guard District, Misc. Civ. No. 68-64-F.
| Decision Date | 07 March 1969 |
| Docket Number | Misc. Civ. No. 68-64-F. |
| Citation | 297 F. Supp. 193 |
| Parties | John E. BATES, Petitioner, v. COMMANDER, FIRST COAST GUARD DISTRICT and Commanding Officer, United States Coast Guard Base (T & A), Boston, Massachusetts, Respondents. |
| Court | U.S. District Court — District of Massachusetts |
Daniel Klubock, Boston, Mass., for plaintiff.
Paul F. Markham, U. S. Atty., Stanislaw R. J. Suchecki, Asst. U. S. Atty., for defendants.
Petitioner, a seaman in the United States Coast Guard, brings this habeas corpus proceeding asking the court to order his discharge from the service.
Petitioner Bates voluntarily enlisted in the United States Coast Guard Reserve on January 24, 1966 for a six-year period. After completing recruit and advanced training he was assigned on May 30, 1966 to Organized Reserve Training Unit, Port Security (O), South Portland, Maine. He was under a duty to attend scheduled inactive duty training drills and an annual two-week training period in accordance with existing orders and directives.
Bates was ordered to report to the Coast Guard Training Center, Yorktown, Virginia, on July 21, 1968 for two weeks of training. On July 11, 1968 he wrote to the Commander, First Coast Guard District stating he could "no longer support, in any way, this country's aggression against the Vietnamese", and further added that, "I have no intention of engaging in this training or in any other type of reserve training as long as the war in Viet Nam continues". Bates failed to report for the two-week training period, and beginning in July also failed to report for the required weekly training drills.
On August 2, 1968 Bates sent a letter to the Commandant of the United States Coast Guard stating that he wanted to be discharged as a conscientious objector. After an interchange of letters, the Coast Guard sent to Bates instructions as to the proper procedure for applying for discharge, together with the proper forms, and on September 13, 1968 he made formal application for discharge as a conscientious objector.
Meanwhile, on the basis of Bates' failure to attend the required weekly drills the Coast Guard determined that his participation in the Reserve Program was unsatisfactory, and ordered him to report for involuntary active duty for a period of 19½ months (a period which would bring his total time of active service to two years). He was granted a delay in reporting to allow him to make such preparations as he needed to secure evidence in his home area to support his claim for discharge. On September 30, 1968 he reported, passed his physical examination and was placed on active duty. He is still in an active duty status.
The Coast Guard proceeded with the processing of Bates' application for discharge in accordance with the provisions of DOD Directive 1300.6. A hearing was held at Boston on October 4, 1968 before a legal officer of the Coast Guard. Bates appeared with his own civilian counsel, was duly advised of his rights, and was allowed to make whatever statements and arguments, and present whatever supporting evidence he wished. The hearing officer held that Bates was not entitled to classification as a conscientious objector but did recommend that, although not technically entitled to it, Bates should be given non-combatant duty. The application was referred to the Director of Selective Service, whose office gave its opinion that Bates would not be classified under the Military Selective Service Act of 1967 as a conscientious objector. After review by the staff of the Commandant, United States Coast Guard, Bates' application for discharge was denied and on October 29, 1968 he was assigned to duty on the Cutter Fern, home-ported at Dubuque, Iowa, which is on aids to navigation duty and does not carry combatant weapons.
In assigning Bates to active duty the Coast Guard acted under the authority of 10 U.S.C. § 673a, as implemented by Executive Order No. 11366 of August 4, 1967. Petitioner contends that § 673a applies only to the Department of Defense and not to the Coast Guard. However, § 673a by its own terms applies to "any member of the Ready Reserve of an armed force," and "armed forces" is defined to include the Coast Guard. 10 U.S.C. § 101(4).
More basically, Bates contends that § 673a should be interpreted as not applying to him, or that if interpreted as so applying, it is unconstitutional. In substance, his argument is that his enlistment in the reserve constituted a contract between him and the government, that under that contract and the law as it existed at the time of his enlistment, the government's only remedy in case he failed or refused to perform his training duties was to call him to active duty for a period of not more than 45 consecutive days, or to report his unsatisfactory participation to his Selective Service Board, thus subjecting him to be reclassified and drafted into the armed forces. Since § 673a was added as part of Public Law 90-40, 81 Stat. 100, enacted on June 30, 1967, after Bates' enlistment, he argues that to apply the law to him would amount to an unconstitutional impairment of his contract. So far as the Statement of Understanding which he signed as part of the contract provided for his being subject to an involuntary call to active duty "when otherwise authorized by law," this, he argues, applies only to authorization under existing law, and not under laws subsequently enacted.
These contentions of petitioner must be rejected, for the reasons set forth in the extended discussion of similar contentions made in a number of recent cases, with the reasoning of which this court agrees. Winters v. United States, 281 F.Supp. 289, affirmed per curiam, 2 Cir., 390 F.2d 879; Morse v. Boswell, 289 F.Supp. 812; Weber v. United States, 288 F.Supp. 491; Even v. Clifford, 287 F.Supp. 334; Pfile v. Corcoran, 287 F.Supp. 554.
Bates further contends that the Coast Guard's decision not to grant him a discharge as a conscientious objector was improper. As petitioner concedes, the scope of review of this question by this court is a very narrow one. The sole question is whether or not there was any basis in fact for the administrative decision of the Coast Guard.1 United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733; Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567; Hammond v. Lenfest, 2 Cir., 398 F.2d 705; Brown v. McNamara, 3 Cir., 387 F.2d 150.
Petitioner had the burden of establishing that he was conscientiously opposed as a matter of religious training and belief to...
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Giardina v. Ambrose, Civ. A. No. 69-70-F.
...implemented by Executive Order 11366 of August 4, 1967. See Bates v. Commander, First Coast Guard District and Commanding Officer, United States Coast Guard Base (T & A) Boston, Mass., 297 F.Supp. 193 (D. Mass., March 7, 1969). The Commanding General, First United States Army, was well with......