Bates v. Commander, First Coast Guard District, 7310.

• Decision Date: 24 July 1969
• Docket Number: No. 7310.,7310.
• Citation: 413 F.2d 475
• Parties: John E. BATES, Petitioner, Appellant, v. COMMANDER, FIRST COAST GUARD DISTRICT et al., Respondents, Appellees.
• Court: U.S. Court of Appeals — First Circuit

413 F.2d 475 (1969)

John E. BATES, Petitioner, Appellant, v. COMMANDER, FIRST COAST GUARD DISTRICT et al., Respondents, Appellees.

No. 7310.

United States Court of Appeals First Circuit.

Heard June 3, 1969.

Decided July 24, 1969.

Daniel Klubock, Boston, Mass., for appellant.

Stanislaw R. J. Suchecki, Asst. U. S. Atty., with whom Herbert F. Travers, Jr., U. S. Atty., was on brief, for appellees.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

McENTEE, Circuit Judge.

This is an appeal from the dismissal of a writ of habeas corpus in which petitioner, Bates, seeks a discharge from the Coast Guard as a conscientious objector. The principal issue is whether there is any "basis in fact" for the Coast Guard's determination that petitioner's objection to war arises from a "sociological and philosphical point of view which he expounds as a religious belief but which is actually a personal code."

On January 24, 1966, Bates enlisted in the Coast Guard Reserve for a six year tour of duty. Although at the time he had reservations about the war, he did not feel justified in claiming conscientious objector status. He served the required four months active duty and thereafter fulfilled his reserve obligations until July 11, 1968. On that date he wrote to the Commander of the First Coast Guard District, "I can no longer support, in any way, this country's aggression against the Vietnamese." In a second letter, dated August 2, 1968, petitioner wrote, "I cannot conscientiously support my country's war effort in Vietnam, which I consider to be warfare's `most horrible manifestation' at this time," and stated that he wished to apply for a discharge in accordance with DOD Directive 1300.6.¹ On the basis of these two letters petitioner's application for discharge was denied on the grounds that his beliefs were philosophical and not religious. This led to further correspondence in which Bates explained that he had not yet set forth his grounds for the position he was taking.

In a letter dated September 13, 1968, he detailed for the first time the beliefs on which he based his application for discharge. This letter read in part:

"By reason of prior religious training and my developing beliefs, I am conscientiously opposed to participation in war in any form, and I cannot, in conscience, participate in Reserve activities while my country engages in war.

* * * * * *

"I believe in the Supreme existence of the spirit of love. `God is love.\' I believe that when this spirit is alive in man, when we act in awareness of our brotherhood as men, we achieve a certain holiness and our human relationships improve by an immeasurable factor, a divine factor, if you will. The spirit of brotherly love is the basis of human relations. The concept is at the heart of the world\'s religions. Total commitment to this awareness is my goal, for this love must enter every aspect of human life, if ever we are to fulfill the promise of man.

"Warfare stems from the breakdown of human relationships. It involves the destruction of human life, the destruction of those things we have created out of love, the casting aside of principles based on brotherhood. The act of war is a crime against humanity. To participate in war, in any war, to support it, is to relegate the highest spirit of love to a position below the passions."

Also, in support of his claim petitioner submitted letters from three clergymen all of whom expressed the opinion that he was sincere in his beliefs. In addition, two of the three expressed the conviction that his beliefs were spiritual in nature.

Relative to his application, petitioner was interviewed by a Navy chaplain, a Navy psychiatrist² and a Coast Guard officer. The chaplain reported, "I believe Bates is honest about his position as a conscientious objector. * * * I recommend approval of his request to be discharged as a conscientious objector." On October 21, 1968, the Commandant again notified petitioner that his application had been denied, but that he would be assigned to noncombatant duty.³ The petition for habeas corpus followed.

On review of a selective service classification the sole question for the court is whether "a basis in fact" exists for the classification given. Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567 (1946). The scope of our review is no less restrictive in the case of those who claim conscientious objection after entering the military service. Hammond v. Lenfest, 398 F.2d 705 (2d Cir.1968); Cooper v. Barker, 291 F.Supp. 952 (D.Md.1968); Gann v. Wilson, 289 F.Supp. 191 (N.D.Cal. 1968); DOD Directive 1300.6 IV B3(b).

In denying petitioner's request for discharge, the Commandant based his decision on the following factors: Neither at the time he registered with his draft board nor at the time he enlisted did petitioner indicate that he was a conscientious objector; that on referral of petitioner's application to the Director of Selective Service for his opinion, the Director stated that petitioner would not be classified a conscientious objector; that his "objection * * * has been evaluated as a sociological and philosophical point of view which he expounds as a religious belief but which is actually a personal code"; and, finally, the hearing officer's report which in essence stated that petitioner's belief was not religious.

The Commandant's initial findings implicitly attack the petitioner's sincerity. But by holding that petitioner's present claim is inconsistent with his prior voluntary enlistment, the Commandant puts him in a "hanged if he does, hanged if he doesn't" predicament. Under DOD Directive 1300.6 IV B2, conscientious objection will not be considered unless it arose after induction or enlistment. By the Commandant's reasoning, therefore, petitioner's claim cannot be considered if it arose prior to his enlistment and is evidence of insincerity if it arose afterwards. By the force of this logic, no member of the armed services could ever qualify as a conscientious objector.⁴ In this context we note that the four clergymen and the Coast Guard hearing officer with whom he had interviews never doubted his sincerity. It is well established that even under the "no basis in fact, test, doubt as to sincerity cannot be predicated on mere speculation. See Dickinson v. United States, 346 U.S. 389, 74 S.Ct. 152, 98 L.Ed. 132 (1953).

In accordance with standard operating procedure, the Coast Guard asked the Director of Selective Service for his opinion as to what petitioner's status would be if he were being considered for classification. The Director replied that the petitioner would not qualify as a conscientious objector but there is nothing in the record to indicate the basis for his opinion. Therefore it would be paradoxical for the Coast Guard to rely on this to bolster its case. See Cooper v. Barker, supra at 957-958 of 291 F. Supp.

Nor is there any basis in fact for the Commandant's conclusion that petitioner's beliefs are not religious but are sociological and philosophical and comprise a personal moral code. The Commandant relies on four letters written by Bates initiating his request to be discharged as a conscientious objector. In these letters the petitioner manifested his belief that "war is a criminal violation against humanity," (August 2), that the Vietnam war is "warfare's most horrible manifestation at this time," (August 2) and that he had "no intention of engaging in this training or in any other type of Reserve training as long as the war in Vietnam continues." (July 11). On the basis of this correspondence alone, petitioner's claim had once been rejected.

On August 30, 1968, Bates wrote to the Commandant, stating that he was "somewhat dismayed" that he hadn't been sent the appropriate forms and that his request was summarily disposed of. He further stated,

"But for the brief explanation I offered in my initial correspondence with you, I have not discussed the grounds for my taking serious action in opposition to the Vietnam war. Therefore, the denial of my request in that my `conscientious objection is based on stated philosophical rather than bona fide religious grounds\' seemed to be somewhat premature."

The fact that petitioner wrote letters prior to submitting his application for discharge expressing political opposition to the war does not disqualify him from being a conscientious objector. See Fleming v. United States, 344 F.2d 912 (10th Cir.1965). The fact that he may abhor the Vietnam war and regard it as "warfare's most horrible manifestation at this time" does not detract from his religious belief which is amply documented. To hold otherwise would require a finding that religious belief cannot coexist with political opinion. The statement of such a proposition contains its own refutation. We observe in this connection that the hearing officer found that "SN BATES is sincerely opposed to the use of force on an individual or organized basis as a solution to any of the problems confronting an individual or mankind generally." In view of all the evidence, the most that can be said is that petitioner's views are partially motivated by factors other than religious belief. There exists no basis in fact for finding that these are "essentially political, sociological or philosophical." (Emphasis ours.)

The last factor on which the Commandant relied for his decision was the report of the hearing officer. This officer was a Lieutenant Commander, a lawyer by profession and the teacher of an eighth grade church school at the Presbyterian Church of which he was a member.⁵ In evaluating petitioner's beliefs he purported to apply the test enunciated in United States v. Seeger, 380 U.S. 163, 166, 85 S.Ct. 850, 13 L. Ed.2d 733 (1965), i.e., "whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption."...