Chapin v. Webb, Civ. No. H-88-46 (PCD).

• Decision Date: 20 December 1988
• Docket Number: Civ. No. H-88-46 (PCD).
• Citation: 701 F. Supp. 970
• Court: U.S. District Court — District of Connecticut
• Parties: STS3 William P. CHAPIN v. Honorable James WEBB, Secretary of the Navy, et al.

701 F. Supp. 970

STS3 William P. CHAPIN v. Honorable James WEBB, Secretary of the Navy, et al.

Civ. No. H-88-46 (PCD).

United States District Court, D. Connecticut.

December 20, 1988.

COPYRIGHT MATERIAL OMITTED

Brian S. Mead, Mead & Herman, Quinebaug, Conn., for plaintiff.

Nancy L. Griffin, Asst. U.S. Atty., New Haven, Conn., for defendants.

RULING ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

DORSEY, District Judge.

Petitioner, William P. Chapin, a Navy Petty Officer, seeks habeas corpus relief in the form of an honorable discharge from further military service as a conscientious objector or, alternatively, that he suffers from a personality disorder. Respondents, the Secretary of the Navy and two Navy officers ("the Navy"), claim authority over petitioner.

Background

Petitioner enlisted in the United States Navy in June 1984. His service record reflects training from 1984 to May 1986 at Naval facilities in San Diego, California; Pensacola, Florida; and Groton, Connecticut.¹ In May 1986, petitioner reported to the submarine USS Andrew Jackson for sea duty. During petitioner's first patrol on the Jackson, he observed nuclear weapons, an experience which he claims crystallized his beliefs into opposition to participation in war.² See Record at 15, 21.

Petitioner was referred for psychiatric evaluation when his views were learned. Record at 15. The psychiatrist, Dr. Giannandrea, found "no psychiatric illness that this request for conscientious objector status emanates from," but suggested that psychiatric evaluation and testing supported the existence of a severe personality disorder. Record at 14. On February 18, 1987, petitioner formally applied for discharge as a conscientious objector under ¶ 1860120 of the Naval Military Personnel Manual ("NMPM").³See Record at 11-12 (Request for C.O. Status). The application described in part the nature and basis for his beliefs:

A military body's sole purpose is to ready itself to wage war. I have no intention of participating in that practice and I am seeking separation from it.

....

Membership in a military organization is indicative of a willingness to participate in a war should the government deem it necessary. I will not participate in war. I will not participate in waiting to wage war. This conviction became concrete during my last patrol.

....

Use of force should be a last resort, and then only sufficient force to defend yourself or someone near you from harm.

Id. (enumerations omitted).

Petitioner was interviewed twice by Chaplain Richard Day, who reported as required by NMPM, ¶ 1860120.6, and concluded that: "petitioner's consentious sic objection to war is based primarily on his political assumption that his release from the Navy will be seen as his witness to the total evil of war. He is, in my opinion sincere in his belief that war is evil. His views stem, as I see it, not from religious training and belief but rather from the political decisions and policies of the President and Congress necessitating the military." Record at 18. Based on these conclusions, the Chaplain recommended that petitioner's request be denied "on the grounds that his views against war are not founded on his religious training and belief as delineated in NMPM, ¶ 1860120." Id.

The investigating officer, Lt. Loretta Spillane, held a hearing on March 30, 1987. Petitioner testified without counsel and presented no other evidence. Lt. Spillane considered the psychiatrist's and chaplain's reports, along with petitioner's application and testimony, and recommended that petitioner's request be denied for three reasons. First, she noted that petitioner had expressed willingness to fight in self-defense, defense of others, or defense of his country, but not as a serviceman. She therefore concluded that petitioner "does not object to participating in war per se, rather he desires to choose both the war and the manner in which he will participate." Id. at 8. Second, referring to petitioner's views on military and foreign policy, Lt. Spillane found that the source of his objection to participating in war was neither "religious training and belief" nor "moral or ethical beliefs of equal strength and devotion of a traditional religious conviction," but were "pervasively political in nature." Id. at 9. Third, Lt. Spillane found that petitioner had not met his burden of establishing that his conscientious objection convictions were sincerely held. She noted that he presented no supporting letters or testimony from others, that his beliefs were not gained through study, training, contemplation or comparable activity, and he had not otherwise conducted himself consistent with his convictions. Id. Petitioner's commanding officer forwarded this report, petitioner's request, and the record to the Commander, Naval Military Personnel, adding an endorsement recommending denial of the request. On July 10, 1987, petitioner's request was denied by the Commander of Naval Military Personnel for the following reasons:

1. that those best able to evaluate the request (i.e. the commanding officer, chaplain, and investigating officer) were not convinced that he qualified as a conscientious objector;

2. that his application contained minimal supporting information and indicated that his beliefs "are not held to the extent that continued service would deny him rest and peace;"

3. that he is not opposed to participation in all war, but rather is a "selective objector;"

4. that his beliefs do not meet the requirement that they be gained through training, study, contemplation or other activities comparable in rigor and dedication to the processes by which traditional religious convictions are formulated and were not "firmed, fixed, or the primary controlling force in petitioner's life."

Id. at 5-6. There was no finding that petitioner's beliefs are not sincerely held.

After petitioner submitted a rebuttal, the Navy reaffirmed its decision. Petitioner now argues that he should have been discharged either because of his alleged personality disorder or as a conscientious objector. The petition is before the court on the parties' cross-motions for summary judgment.

Review of Petitioner's Personality Disorder Claim

Petitioner argues that the Navy itself has diagnosed him as suffering from a personality disorder and he is thereby entitled to discharge under NMPM, ¶ 3620200.1.f(3).⁴ Respondents contend that the regulation vests no rights in petitioner and that the decision not to discharge him under the regulation is not subject to judicial review.

To the extent a military regulation is mandatory, it will be enforced by the courts. Ornato v. Hoffman, 546 F.2d 10, 13 (2d Cir.1976); see Smith v. Resor, 406 F.2d 141, 146 (2d Cir.1969) (military must observe own procedures). Thus, were petitioner correct that the NMPM requires the separation of personnel suffering from personality disorders, then his claim — that the Navy's recognition of his illness obliges it to discharge him — would be subject to judicial review. However, where a matter is "committed to agency discretion" by statute or regulations which do not mandate action, the agency's exercise of that discretion is not subject to judicial review. See Ornato, 546 F.2d at 13-14; Smith, 406 F.2d at 145; United States ex rel. Schonbrun v. Commanding Officer, 403 F.2d 371, 374 n. 2 (2d Cir.1968), cert. denied, 394 U.S. 929, 89 S.Ct. 1195, 22 L.Ed.2d 460 (1969); cf. 5 U.S.C. § 701(a)(2).

Assuming that petitioner does suffer from a personality disorder, the regulations he cites do not bind the Navy to discharge him. Indeed, automatic discharge is not mandated under any set of circumstances, even where a service member has been evaluated as "being self-destructive and/or a continuing danger to him or herself and others." NMPM, ¶ 3620200.1.f(3). In contrast to conscientious objectors, who may request discharge on the basis of their beliefs, a service member may not initiate discharge on the basis of a personality disorder. Compare NMPM, ¶ 1860120.1 and .4b with 3620200.1; cf. 32 C.F.R. § 75.4(a) (conscientious objector request "will be approved to the extent practicable and equitable" within limitations imposed by regulations). Rather, the NMPM provides that separation for a personality disorder is to be made only for the "convenience of the government," NMPM, ¶ 3620200.1, and that "the commanding officer is the initial authority responsible for determining if and when a member shall be processed for separation by reason of convenience of the government due to personality disorder." NMPM, ¶ 3620200.1.f(3). The regulations do not establish substantive standards for this determination; they merely establish procedures for commanding officers to follow in initiating and documenting a discharge on the grounds of a personality disorder. Thus, despite a medical diagnosis that a severe personality disorder exists which renders a service member incapable of serving in the Navy, the commanding officer may not request discharge without: (1) counseling the member on his deficiencies and affording the member an opportunity to overcome them; and (2) documenting "specific examples of how the diagnosed disorder interferes with the performance of the member's duty." Id., ¶ 3620200.1f(3) (evidence of reduction in performance which persists in spite of command attempt to correct deficiencies through leadership), and .4.

Petitioner has not challenged the Navy's adherence to procedural form, but challenges the substantive decision not to discharge him. The lack of a substantive standard in the Navy's regulations, coupled with the structure of the military chain of command, strongly suggests that this decision is committed to the discretion of the commanding officer (in the first instance), subject to the approval of the Commander of Naval Military Personnel. Compare Smith, 406 F.2d at 145 (discretion vested in commanding officer to determine if reservist would be permitted to wear...