Brown v. McNamara, No. 16454.

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtSTALEY, , and MARIS and VAN DUSEN, Circuit
PartiesDavid W. BROWN, private E-2 RA 11 797 464, Appellant, 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, Appellees.
Decision Date24 November 1967
Docket NumberNo. 16454.

387 F.2d 150 (1967)

David W. BROWN, private E-2 RA 11 797 464, Appellant,
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, Appellees.

No. 16454.

United States Court of Appeals Third Circuit.

Argued October 5, 1967.

Decided November 24, 1967.


Melvin Wulf, Legal Director, American Civil Liberties Union, New York City

387 F.2d 151
(Marvin M. Karpatkin, Eleanor H. Norton, New York City, Emerson L. Darnell, Mount Holly, N. J., on the brief), for appellant

Wilbur H. Mathesius, Asst. U. S. Atty., Trenton, N. J. (David M. Satz, Jr., U. S. Atty., Newark, N. J., on the brief), for appellees.

Before STALEY, Chief Judge, and MARIS and VAN DUSEN, Circuit Judges.

OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

This appeal concerns the jurisdiction of the Federal Courts over persons in the military service.1 The case is before the court on appeal from an order of the District Court denying a petition for a writ of habeas corpus, requesting the discharge of appellant from the Army on the grounds of his being a conscientious objector. Appellant (Private David W. Brown) voluntarily enlisted in the Army. The petition alleges that his religious beliefs "crystalized" two weeks after beginning his basic training at Fort Dix, New Jersey, and he refused to proceed further with combat training.

Army Regulations (AR 635-20) provided a procedure for people in Private Brown's position to request discharge from the Army on the grounds of conscientious objection. Private Brown submitted the required forms, together with the required documentation, and complied fully with the procedure, including the Chaplain's and psychiatrist's reports. This internal Army regulation was adopted pursuant to a Defense Department directive designed to establish uniform procedures in all branches of the Armed Services for considering discharge requests on the grounds of conscientious objection (DOD No. 1300.6). The administrative system contemplated by the Defense Department and enacted by the Army regulation is fairly detailed. But in general terms it provides for a "discretionary" discharge, consistent with the national policy of not inducting conscientious objectors. Since members of the Armed Forces are involved, however, such discharge requests will be recognized only "to the extent practicable and equitable." Certain guidelines and rules are given for exercising this discretion, including: the claimed objection cannot stem from beliefs existing before entering the Armed Forces; each service's headquarters will decide, after consideration of the peculiar circumstances of the case; great care should be used to insure the sincerity of the claim; the same standards used by the Selective Service System for pre-induction claims should be used (an advisory I-O classification from the Selective Service will be a normal prerequisite for discharge, particularly where the applicant has less than two years of service); and no absolute objective measurements can be applied across the board. The procedure suggested allows for assignment to non-combatant duties in certain cases and the Army regulations provide for assignment to duties providing the minimum conflict with professed religious beliefs pending final decision on an application for discharge.

Private Brown's application did not receive a favorable advisory classification of I-O (or I-A-O allowing a noncombatant assignment) from the Director of Selective Service, despite several letters submitted on his behalf from outside sources attesting to his religious convictions. Both the Chaplain's report and the Commanding Officer's recommendation of disapproval made reference to Brown's contact with pacifist organizations and persons, and both concluded that his beliefs were based upon these contacts, as opposed to religious convictions. Based on this recommendation, the documents attached to the application, and the Selective Service opinion, the Adjutant General denied discharge and, accordingly, Private Brown was ordered to draw combat training equipment.

387 F.2d 152
Brown refused. After hearing by a Special Court Martial and suspension of his sentence by the reviewing officer, a second refusal to obey orders led to new charges. Instead of convening a second court martial, suspension of the original sentence of three months' confinement at hard labor was vacated and Brown was ordered into confinement.2 The petition for a writ of habeas corpus followed, alleging that Brown was being held in violation of his rights. In general terms, appellant alleged that the Army violated its own procedure, made an incorrect determination of Brown's conscientious objector status, and followed an administrative procedure that denied Brown constitutionally required procedural and substantive due process, as well as equal protection of law

The lower court denied any relief by way of habeas corpus, finding no constitutional infirmity in the administrative procedure used by the Army and no jurisdiction to review their factual determination under that procedure. We agree with the excellent opinion of Judge Lane on the issue of procedural due process.3 Regardless of the constitutional underpinnings of the right to classification as a conscientious objector, it is perfectly rational and consonant with constitutional concerns, including the separation of powers, to regard voluntarily enlisted servicemen as a distinct class from inducted civilians or servicemen in general discharged to civilian life. We therefore affirm the conclusion "that the administrative scheme set up by the Department of Defense and the Army does not of itself result in any constitutional violation." See Brown v. McNamara, supra, at 691.

Inherent in this conclusion and our approval is a decision that the Federal Courts have jurisdiction to make this...

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48 practice notes
  • Mellinger v. Laird, Civ. A. No. 70-40.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • February 16, 1972
    ...as civilians.29 See Orloff v. Willoughby, 345 U.S. 83, 73 S.Ct. 534, 97 L.Ed. 842 (1953). But in this case, as in Brown v. McNamara, 387 F.2d 150, 152 (3rd Cir. 1967), we need not decide whether "review of the question of substantive due process which may be presented in any case of a perso......
  • Craycroft v. Ferrall, No. 22582
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 5, 1969
    ...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). This prospect immediately leads us to our t......
  • Hammond v. Lenfest, No. 461
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 10, 1968
    ...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). Indeed, until 1962, the Department of D......
  • Glazier v. Hackel, No. 26106.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 31, 1971
    ...Bates v. Commander, 413 F.2d 475 (1st Cir. 1969); United States ex rel. Mankiewicz v. Ray, 399 F.2d 900 (2d Cir. 1968); Brown v. McNamara, 387 F.2d 150, 152 (3d Cir. 1967); United States ex rel. Lehmann v. Laird, 430 F.2d 96 (4th Cir. 1970); United States ex rel. Tobias v. Laird, 413 F.2d 9......
  • Request a trial to view additional results
48 cases
  • Mellinger v. Laird, Civ. A. No. 70-40.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • February 16, 1972
    ...as civilians.29 See Orloff v. Willoughby, 345 U.S. 83, 73 S.Ct. 534, 97 L.Ed. 842 (1953). But in this case, as in Brown v. McNamara, 387 F.2d 150, 152 (3rd Cir. 1967), we need not decide whether "review of the question of substantive due process which may be presented in any case of a perso......
  • Craycroft v. Ferrall, No. 22582
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 5, 1969
    ...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). This prospect immediately leads us to our t......
  • Hammond v. Lenfest, No. 461
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 10, 1968
    ...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). Indeed, until 1962, the Department of D......
  • Glazier v. Hackel, No. 26106.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 31, 1971
    ...Bates v. Commander, 413 F.2d 475 (1st Cir. 1969); United States ex rel. Mankiewicz v. Ray, 399 F.2d 900 (2d Cir. 1968); Brown v. McNamara, 387 F.2d 150, 152 (3d Cir. 1967); United States ex rel. Lehmann v. Laird, 430 F.2d 96 (4th Cir. 1970); United States ex rel. Tobias v. Laird, 413 F.2d 9......
  • Request a trial to view additional results

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