Borkenhagen v. Laird, Civ. A. No. MC 72-178-F.

• Decision Date: 15 April 1975
• Docket Number: Civ. A. No. MC 72-178-F.
• Parties: David M. BORKENHAGEN v. Melvin LAIRD et al.
• Court: U.S. District Court — District of Massachusetts

392 F. Supp. 637

David M. BORKENHAGEN v. Melvin LAIRD et al.

Civ. A. No. MC 72-178-F.

United States District Court, D. Massachusetts.

April 15, 1975.

John G. S. Flym, Boston, Mass., for petitioner.

Marshall Stein, Asst. U. S. Atty., Boston, Mass., for respondent.

OPINION

FREEDMAN, District Judge.

Petitioner, David A. Borkenhagen, brought this habeas corpus action on December 12, 1972, seeking a discharge from the United States Air Force on the grounds that he is a conscientious objector ("C.O."). Since he was at that time under orders to report for active military duty on January 7, 1973, this Court granted, on January 5, 1973, his prayer for injunctive relief pending a determination of the merits of his petition. The present opinion is such a determination.

The facts herein are not in dispute. Petitioner is a physician, residing in Massachusetts, who joined the Air Force Reserves in 1967 under the provisions of the Armed Forces Physicians Appointment and Residency Consideration Program ("Berry Plan"). This plan permitted him to pursue specialized medical training through internship and as a resident rather than face the possibility of immediate call to active duty under the Doctor Draft. Under the Berry Plan, he agreed that upon completion of this further training he would serve two years of active military duty, practicing the specialty for which he was trained.

Although the petitioner's medical training was originally to have concluded in June, 1971, he requested an additional year of deferment by letter dated November 10, 1970 in which he stated, "I remain interested in service in the U.S.A.F., and, of course, realize that my commitment to serve under the Berry Plan agreement after specialty training in cardiology would not be altered by continued deferment through July 1972." His request for an extension was finally granted but not before extensive "negotiations" with Air Force personnel during which the petitioner expressed ". . . an interest in giving the U.S. A.F. additional time beyond a minimum two years of active duty."

The petitioner was notified by letter dated September 1, 1971 that he was programmed for active duty beginning sometime during the period July-October, 1972. On November 29, 1971, Dr. Borkenhagen notified the Air Force, for the first time, that he had become a conscientious objector. In accordance with instructions from Air Reserve Personnel Center ("ARPC"), the petitioner submitted his resignation from the service on January 28, 1972. Accompanying the resignation was his completed application for discharge which included, inter alia, a philosophical and religious autobiography and numerous letters of reference from his family, friends, associates and superiors, all of whom attested to the sincerity of his beliefs. Also included in the application was a memorandum from Air Force Chaplain Henry Guikema whom the petitioner had been instructed to meet. The Chaplain was convinced that Dr. Borkenhagen's beliefs were honest, sincere and consistent with his application for conscientious objector status.

On March 8, 1972, a hearing was held concerning petitioner's C.O. claim at Hanscom Field, Bedford, Massachusetts, before the hearing officer, Lt. Col. John T. Murphy. Petitioner was present with counsel. On May 8, 1972, the hearing officer issued his report recommending rejection of petitioner's resignation and denial of his C.O. application. The hearing officer's rationale for his recommendation will be discussed later.

The hearing officer's recommendation was forwarded to Col. Mack E. Schwing, Jr., U.S.A.F., Staff Judge Advocate, who completely disagreed with the hearing officer's conclusions. Col. Schwing's recommendation of August 1, 1972 — that the petitioner should be discharged as a C.O. — was concurred in by Col. Benjamin S. Catlin, III, U.S.A.F., ARPC Commander, one of the named respondents herein.

On August 23 and 28, 1972, the ARPC Director of Personnel Actions and Kenneth W. Henschel, Chaplain Major, U.S. A.F., Special Assistant, Command Chaplain, Randolph Air Force Base, Texas, Headquarters, Air Force Military Personnel Center ("AFMPC") respectively recommended acceptance of petitioner's resignation from the military.

On August 30, Captain Raymond R. McClean, U.S.A.F., M.S.C., Medical Personnel

Procurement Division, Office of the Surgeon, doubting the sincerity of the petitioner, recommended disapproval of the petitioner's resignation.

On September 11, 1972, Capt. Christopher A. Somers, U.S.A.F., Directorate of Personnel Program Actions, acting for the Commander of AFMPC, recommended approval of petitioner's classification as a C.O. and acceptance of his resignation.

On October 18, 1972, Brig. Gen. Frank O. House, U.S.A.F., Director of Civil Law, Office of the Judge Advocate General, recommended disapproval of petitioner's application.

Finally, on October 31, 1972, Dr. Borkenhagen was informed that the Secretary of the Air Force had declined to classify him as a C.O. and did not accept his resignation from the military. It is this denial of the petitioner's application, from the highest Air Force appellate administrative office, that is the subject of this petition for a writ of habeas corpus.

The task of the Court in reviewing a denial of an in-service conscientious objector application is to determine (1) if the application stated a prima facie case for the status requested; (2) if the application was handled in a procedurally correct manner; (3) if legally adequate reasons were stated for the denial of the request; and (4) if there was a "basis in fact" supporting the reasons given. Frisby v. Larsen, 330 F.Supp. 545, 546 (N.D. Cal.1971). See, Hammond v. Lenfest, 398 F.2d 705 (2nd Cir. 1968); Bates v. Commander, First Coast Guard District, 413 F.2d 475 (1st Cir. 1969).

The applicant has the initial burden of establishing a prima facie case. United States v. Edwards, 450 F.2d 49 (1st Cir. 1971). To overcome his burden he must ". . . satisfy three basic tests. He must show that he is conscientiously opposed to war in any form. Gillette v. United States, 401 U.S. 437, 91 S.Ct. 828, 28 L.Ed.2d 168 (1971). He must show that this opposition is based upon religious training and belief, as the term has been construed . . . by the Supreme Court. United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965); Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970). And he must show that this objection is sincere, Witmer v. United States, 348 U.S. 375, 75 S.Ct. 392, 99 L.Ed. 428 (1955)." Clay v. United States, 403 U.S. 698, 700, 91 S.Ct. 2068, 2070, 29 L. Ed.2d 810 (1971).

A prima facie case is established when an applicant ". . . makes nonfrivolous allegations of facts that . . ., if true, would be sufficient . . . to warrant granting the requested reclassification, unless the truth of these new allegations is conclusively refuted by other reliable information. . . ." Mulloy v. United States, 398 U.S. 410, 416, 90 S.Ct. 1766, 1771, 26 L.Ed.2d 362 (1970). Such facts, "not refuted by reliable information", were alleged here. In his eloquent statement of personal views and training, Dr. Borkenhagen described those persons, books, religious and philosophic beliefs, events and personal experiences which led him to conclude that "I cannot aid in any way an apparatus which provides the means for waging war. I cannot, in conscience, participate in military practices of any kind." Fourteen references and an Air Force Chaplain attested to the sincerity of his beliefs in reaching this conclusion. In sum, there is no question that Dr. Borkenhagen established a prima facie case here.

Nevertheless, the petitioner was denied a discharge by the Secretary who declared that "the record does not substantiate that your beliefs are sincere." Although, of course, lack of sincerity is a valid legal...