Brown v. McNamara, Civ. No. 1186-66.

CourtUnited States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
Writing for the CourtLANE
Citation263 F. Supp. 686
PartiesDavid W. BROWN, Private E-2 RA 11 797 464, Petitioner, v. Hon. Robert S. McNAMARA, Secretary of Defense, Hon. Stanley R. Resor, Secretary of the Army, Major General John M. Hightower, Commanding General, U. S. Army Training Center, Infantry, U. S. Army, Fort Dix, New Jersey, Respondents.
Docket NumberCiv. No. 1186-66.
Decision Date31 January 1967

263 F. Supp. 686

David W. BROWN, Private E-2 RA 11 797 464, Petitioner,
v.
Hon. Robert S. McNAMARA, Secretary of Defense, Hon. Stanley R. Resor, Secretary of the Army, Major General John M. Hightower, Commanding General, U. S. Army Training Center, Infantry, U. S. Army, Fort Dix, New Jersey, Respondents.

Civ. No. 1186-66.

United States District Court D. New Jersey.

January 31, 1967.


263 F. Supp. 687
COPYRIGHT MATERIAL OMITTED
263 F. Supp. 688
Emerson L. Darnell, Mount Holly, N. J., and Eleanor Holmes Norton, New York City, for petitioner

David M. Satz, Jr., U. S. Atty., by Wilbur H. Mathesius, Asst. U. S. Atty., for respondents.

AMENDED OPINION

LANE, District Judge:

On or about May 17, 1966, David W. Brown, just prior to his twenty-first birthday, enlisted in the United States Army for a period of three years. Private Brown was assigned to Fort Dix, New Jersey, for an eight-week basic Army combat training course. After completing two weeks of the course, it is alleged that Private Brown's thoughts crystallized to the point where he was compelled to conclude that by reason of his religious training and belief, he was unable to serve as a soldier in the United States Army. Brown informed his superior officers of this and refused to proceed further with combat training.

On June 28, 1966, Private Brown submitted a Personal Action Form (DA Form 1049) requesting a discharge pursuant to Department of Defense Directive (DOD) No. 1300.6 and Army Regulation (AR) No. 635-20. The Defense Department Directive was issued by the Secretary of Defense under his general power to control the Department of Defense, 10 U.S.C. § 133. The stated purpose of the directive was to establish "uniform procedures for the utilization of conscientious objectors in the Armed Forces and consideration of requests for discharge on the grounds of conscientious objection." DOD 1300.6, pt. I. These procedures apply to "all personnel of the Army, Navy, Air Force and Marine Corps and to all Reserve components thereof." DOD 1300.6, pt. II.

Part III of the directive is headed "POLICY" and is composed of seven paragraphs lettered A. to G. The general content of this material is as follows: A. That an administrative discharge prior to completion of term of service is discretionary based on the facts of each case and no one has a vested right to such a discharge. B. That consistent with the national policy of not inducting conscientious objectors (I-O classification) such claims will also be recognized when made by members of the Armed Forces to the extent practicable and equitable. C. That such claims will not be entertained if the conscientious objector's beliefs existed prior to his entering the armed forces. D. That final determination of the request should be made by the departmental headquarters of the individual's service after consideration of the circumstances in the particular case and the pertinent criteria. E. That great care should be used to insure that the claim is sincere so that the procedure is not abused and in making this determination the claim should be judged by the same standard as is used in judging a pre-induction claim. F. That the standards used by the Selective Service System in determining I-O or I-A-O classification of draft registrants prior to induction are considered appropriate for judging the conscientious objector claims of those who are already members of the armed forces. G. That in order to insure the maximum practicable uniformity among the services and between members of the same service, an advisory opinion of the Selective Service that an I-O classification is appropriate will normally be a requisite for discharge based on conscientious objection of persons who have served less than two years of active service.

Part IV of the directive sets forth some guidelines as to the criteria to be

263 F. Supp. 689
used in evaluating the claim and emphasizes the point that the objection must be religious. It states that affiliation with particular groups does not result in automatic classification and that lack of such affiliation does not preclude conscientious objector status. It also recognizes that there are no absolute objective measurements which can be applied across the board

Part V of the directive sets forth the procedure to be employed. Paragraphs C. and D. under this part contain the provisions applicable to the instant case. They provide in pertinent part that a person requesting discharge because of conscientious objection is required to furnish certain information deemed appropriate by the military department concerned and, in addition, may submit other information he deems appropriate. These materials together with other information supplied by the applicant's immediate command are then forwarded to the departmental headquarters for determination. Before the departmental headquarters makes a determination concerning the discharge of persons who have actively served for less than two years, the case is forwarded to the Director of the Selective Service System for an advisory opinion as to the applicant's proper classification under the Universal Military Training and Service Act. If a classification of I-O is recommended the person will be considered for discharge. If a classification of I-A-O is recommended, discharge will not be granted, but the individual will be considered for assignment to non-combatant duties. Persons for whom neither of the above classifications is recommended will normally be retained in military service, subject to normal duty assignments. If the individual who has been denied discharge demonstrates continued unwillingness to serve, he will be subject to disciplinary action just as any other member of the armed forces who demonstrates similar behavior. Paragraph F. provides that determination by the military department, in accordance with the facts of the case and the guidelines, shall be final with respect to the administrative separation of its members.

Following the issuance of DOD 1300.6, Army Regulation 635-20 was promulgated by order of the Secretary of the Army pursuant to his authority under 10 U.S.C. § 3012 and 10 U.S.C. § 3811. This regulation contains most of the information embodied in DOD 1300.6 and under part 4 sets out the information required of the applicant on his DA Form 1049. In addition it provides that the individual requesting discharge will receive a counseling interview by a chaplain and a psychiatric interview with a psychiatrist. The chaplain is to report on the sincerity of the individual's belief and whether it is religious. The psychiatrist's report passes on whether there is anything to indicate the need of disposition through medical channels. These reports and the information supplied by the applicant are forwarded through military channels to the Adjutant General, together with certain comments thereon by the unit commander including his recommendation and reasons therefor. It is the Adjutant General who effects coordination with the Selective Service System.

Part 5 of AR 635-20 provides that the individual requesting discharge based on conscientious objection will be retained in his unit and assigned duties providing the minimum of conflict with his professed beliefs pending a final decision on his application.

Private Brown followed the procedures outlined in DOD 1300.6 and AR 635-20. In addition to submitting the required information he also had information submitted on his behalf by various people including the Methodist Chaplain and Assistant Methodist Chaplain at Yale University; a minister who was on the staff at the Wesley Foundation at Yale University; the pastor of the First Methodist Church, New Haven, Connecticut; and Private Brown's wife. This information, together with information supplied by various military personnel was submitted to the Adjutant

263 F. Supp. 690
General who then forwarded it to the Director of the Selective Service System. The Director's advisory opinion was that Private Brown would not be properly classified in I-O or I-A-O if he were being considered for induction. Subsequent to this evaluation the Adjutant General denied the application for discharge and found that Brown should be "retained on active duty without...

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23 practice notes
  • Craycroft v. Ferrall, No. 22582
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 5, 1969
    ...ranks of lawfully assembled military manpower involving refusals to obey orders pending judicial determination. See Brown v. McNamara, 263 F.Supp. 686, 692-693 (D.N.J.), affirmed 387 F.2d 150 (3d Cir. 1967), cert. denied, Brown v. Clifford, 390 U.S. 1005, 88 S.Ct. 1244, 20 L.Ed.2d 105 (1968......
  • Hammond v. Lenfest, No. 461
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 10, 1968
    ...apply to those facing induction and not to enlisted or inducted personnel already in the armed services. See, e. g., Brown v. McNamara, 263 F.Supp. 686, 691 (D.N.J.), aff'd 387 F.2d 150 (3d Cir. 1967), cert. denied, Brown v. Clifford, 390 U.S. 1005, 88 S.Ct. 1244, 20 L.Ed.2d 105 (1968). Ind......
  • Cortright v. Resor, No. 70 C 909.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • March 23, 1971
    ...(2d Cir. 1968). Broad review has certainly not been universally accepted as the standard in these cases. See, e. g., Brown v. McNamara, 263 F.Supp. 686 (D.N.J.), aff'd, 387 F.2d 150 (3d Cir. 1967), cert. denied, 390 U.S. 1005, 88 S.Ct. 1244, 20 L.Ed.2d 105 (1968); Noyd v. McNamara, 267 F.Su......
  • Laxer v. Cushman, Misc. Civ. No. 69-28J.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • June 19, 1969
    ...191; cf. Estep v. United States, 1946, 327 U.S. 114, 122-123, 66 S.Ct. 423, 90 L.Ed. 567; but see Brown v. McNamara, 1967, D.N.J., 263 F.Supp. 686, aff'd, 1967, 3 Cir., 387 F.2d 150, cert. denied sub nom. Brown v. Clifford, 1968, 390 U.S. 1005, 88 S.Ct. 1244, 20 L.Ed.2d 105. Thus the judici......
  • Request a trial to view additional results
23 cases
  • Craycroft v. Ferrall, No. 22582
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 5, 1969
    ...ranks of lawfully assembled military manpower involving refusals to obey orders pending judicial determination. See Brown v. McNamara, 263 F.Supp. 686, 692-693 (D.N.J.), affirmed 387 F.2d 150 (3d Cir. 1967), cert. denied, Brown v. Clifford, 390 U.S. 1005, 88 S.Ct. 1244, 20 L.Ed.2d 105 (1968......
  • Hammond v. Lenfest, No. 461
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 10, 1968
    ...apply to those facing induction and not to enlisted or inducted personnel already in the armed services. See, e. g., Brown v. McNamara, 263 F.Supp. 686, 691 (D.N.J.), aff'd 387 F.2d 150 (3d Cir. 1967), cert. denied, Brown v. Clifford, 390 U.S. 1005, 88 S.Ct. 1244, 20 L.Ed.2d 105 (1968). Ind......
  • Cortright v. Resor, No. 70 C 909.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • March 23, 1971
    ...(2d Cir. 1968). Broad review has certainly not been universally accepted as the standard in these cases. See, e. g., Brown v. McNamara, 263 F.Supp. 686 (D.N.J.), aff'd, 387 F.2d 150 (3d Cir. 1967), cert. denied, 390 U.S. 1005, 88 S.Ct. 1244, 20 L.Ed.2d 105 (1968); Noyd v. McNamara, 267 F.Su......
  • Laxer v. Cushman, Misc. Civ. No. 69-28J.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • June 19, 1969
    ...191; cf. Estep v. United States, 1946, 327 U.S. 114, 122-123, 66 S.Ct. 423, 90 L.Ed. 567; but see Brown v. McNamara, 1967, D.N.J., 263 F.Supp. 686, aff'd, 1967, 3 Cir., 387 F.2d 150, cert. denied sub nom. Brown v. Clifford, 1968, 390 U.S. 1005, 88 S.Ct. 1244, 20 L.Ed.2d 105. Thus the judici......
  • Request a trial to view additional results

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