Cohen v. Laird, Civ. A. No. 69-1085.

• Decision Date: 26 June 1970
• Docket Number: Civ. A. No. 69-1085.
• Citation: 315 F. Supp. 1265
• Parties: Robert Jay COHEN, Stephen M. Gaydos, Calvin Clay Greene, III, Jose F. L. Medina, and Francisco Rivera Pomales, Petitioners, v. Melvin LAIRD, Secretary of Defense, Stanley R. Resor, Secretary of the Army, and Major General James F. Hollingsworth, Commanding General of Fort Jackson, South Carolina, Respondents.
• Court: U.S. District Court — District of South Carolina

315 F. Supp. 1265

Robert Jay COHEN, Stephen M. Gaydos, Calvin Clay Greene, III, Jose F. L. Medina, and Francisco Rivera Pomales, Petitioners, v. Melvin LAIRD, Secretary of Defense, Stanley R. Resor, Secretary of the Army, and Major General James F. Hollingsworth, Commanding General of Fort Jackson, South Carolina, Respondents.

Civ. A. No. 69-1085.

United States District Court, D. South Carolina, Columbia Division.

June 26, 1970.

Jack F. McGuinn, Columbia, S. C., for petitioners.

Joseph O. Rogers, Jr., U. S. Atty., and Charles W. Gambrell, Asst. U. S. Atty., Columbia, S. C., for respondents.

OPINION and ORDER

DONALD RUSSELL, District Judge.

By a single petition, the five petitioners filed this proceeding in habeas corpus to secure their discharge from the Army as conscientious objectors under Army Regulation 635-20.¹ They contend both that the Army failed to follow its own regulations in denying their application and that it was without basis in fact for such denial. Under those circumstances, they took the position the denials represented a violation of their constitutional rights. With the filing of the petition, a temporary restraining order was sought to enjoin the dispatching of any of the petitioners to Vietnam. Such restraining order, and later, a temporary injunction, were issued.²

Though I have, reluctantly, and with perhaps questionable authority, permitted this action to proceed as a joint action by all the petitioners, it is, of course, necessary to treat and determine the application of each petitioner separately on the facts peculiar to that individual. All petitioners are not equally entitled to relief nor are the facts in all cases identical.³ I shall accordingly deal individually with the claims of the several petitioners, taking them up in the order followed in the arguments of counsel.

The first application for consideration is that of Stephen M. Gaydos.

I. GAYDOS

Petitioner Gaydos is a well-educated and intelligent individual, a graduate of Duquesne University. At the required time, he registered under the provisions of the Selective Service Act. Neither at the time he registered nor at any subsequent date prior to his actual induction did he claim the status of a "conscientious objector". In his application for such classification filed after his induction, he, while apparently conceding the existence of his right to exemption at the time he registered under Selective Service, justified his omission of such claim for exemption on the ground that his objections to war at that time "was only a theory", "theory only in the sense that it was abstract, in the sense that I had never gone through the experience", "the experience of being in the military".

On February 20, 1969, he was inducted into the military service under the terms of the Selective Service Act at Fort Jackson, South Carolina. He completed his "basic combat training" on April 26, 1969. He was thereupon detailed to infantry training at Fort Jackson. While so detailed, he filed on June 18, 1969, his application for discharge as a conscientious objector under the terms of Army Regulation 635-20. This Regulation authorizes the discharge of military personnel, developing, after entry into military service, a conscientious objection to war as defined in 50 U.S.C. A. App., sec. 456(j).

In his application for discharge, petitioner rested his claim on religious grounds, gained, as he phrased it, by reading the Bible and certain "Catholic works", including particularly "documents of Vatican II", issued about 1965. He indicated in his testimony that the "Catholic works" to which he referred had been studied by him while at college but apparently not with the same concrete application as after he was inducted into military service. These "works" established that the early Catholic Church was unalterably opposed to war and that the early Christians preferred being "fed to the lions" to participating in war.⁴ He listed three persons who had some knowledge of his beliefs. Two of them were a husband and wife, living in Pittsburgh and listed as "family friends", and the third, also a "family friend", of New Castle, Pennsylvania. No letters in support of the application, though, were submitted or have since been filed. In his application, he listed only two organizations with which he had been affiliated and in which he had been active. These were a social fraternity and an Economics Club. He did not set forth any religious activities on his part or identify any church activities in which he had taken part. Neither did he specify any occasions or situations in which he had expressed or manifested any moral or ethical revulsion against war or the forms it assumed.

The Department of Defense and the Army have promulgated an administrative machinery for evaluating claims for discharge by Army personnel on the grounds of conscientious objection. Such machinery has been appropriately described as "generously designed to protect soldiers who, after enlistment, find war morally repugnant and impossible to square with religious principle."⁵ United States ex rel. Tobias v. Laird (4th Cir. 1969) 413 F.2d 936, 937. The procedure contemplates that the application first be submitted to the applicant's "immediate commanding officer", who shall indicate his approval or disapproval thereof, with comments. Additionally, he is to be given a counseling interview by a chaplain and a psychiatrist. The chaplain is to "have an opportunity to review the entire application" and his report should include "definitive comments as to the sincerity of the applicant's conscientious objection to the bearing and use of arms, an opinion as to whether or not this conviction is primarily religious in basis and origin, and the rationale upon which the statement is based." The psychiatric report is seemingly confined to the determination of the presence or absence of any psychiatric disorder warranting treatment. Thereafter, the applicant is afforded an opportunity to appear in person with or without counsel, before an officer in the grade of Captain or above, other than applicant's immediate commanding officer. This hearing officer is to be knowledgeable in policies and procedures relating to conscientious objector matters. The Regulations, also, provide for referral of the application to the applicant's Selective Service Board for review, if the application is filed within 180 days after the draftee's induction, and for final review by a Class 1-0 Conscientious Objector Review Board in Washington.⁶

The procedure for handling applications for discharge as a conscientious objector, as set forth above, was observed in this case by the Army. Thus, after the petitioner filed his application, his commanding officer on June 18, 1969, reviewed it and disapproved it as wanting in sincerity. He assigned as a basis for such conclusion that, "If he had been (sincere), he wouldn't have actively participated in Basic Combat Training, which included qualifying with the M-16 Rifle. He did not object to any of the combat training given in Basic, so I feel he is not sincere in his beliefs." On June 27, 1969, the application was reviewed at the next level in applicant's chain of command. Again, the reviewing officer recommended disapproval. In so doing, he referred to the fact that "the reasoning contained in his application is, in many instances, an identical word-for-word copy of other applications which have passed through this headquarters (all of whom have been counselled by a certain Father Peter Clarke). This would indicate that the application is not necessarily the thoughts of the applicant." The interviewing officer, also, remarked that the petitioner was a "Roman Catholic and is therefore applying on the basis of individual beliefs."⁷

The petitioner was thereupon interviewed on June 30, 1969, by Chaplain Hartlage, a "Catholic Chaplain". Chaplain Hartlage indicated his disbelief in the sincerity of the petitioner's claim, concluding that, "Under the tutelage and choice readings furnished by Rev. Peter Clarke he now sees the light." The Chaplain observed with reference to Father Clarke, referred to in the application, that "we cannot allow a few warped radicals as Peter Clarke (and that's who should be on trial here) to destroy the teachings of a life time in a couple of months."

On July 15, 1969, petitioner was interviewed by a psychiatrist, whose comment was that, "There is no psychiatric contra-indication to classifying him as a conscientious objector."

On July 24, 1969, petitioner was given a hearing before Captain McIntyre, who was without applicant's chain of command and was knowledgeable in conscientious objector matters. Prior to the hearing, Captain McIntyre reviewed the petitioner's file. After the hearing, Captain McIntyre recommended disapproval. He stated that the petitioner was "the typical trainee coming out of the 3d AIT Brigade here at Fort Jackson claiming to be a conscientious objector. This group in the 3d Brigade (which is our infantry training) is receiving help in filling out applications from a group in Columbia, SC. They have copies of AR 635-20 and are thoroughly familiar with the contents."⁸

The petitioner's application was, also, referred to his Selective Service Board, which advised the Army on August 19, 1969, that, "Based on the information contained in the applicant's file," it would not have classified the petitioner as a conscientious objector.

All recommendations, along with petitioner's application, were thereupon reviewed by the Class 1-0 Conscientious Objector Review Board in the Office of the Secretary of the Army.⁹ On September 8, 1969, that Board disapproved the application, stating, "The Board finds that Gaydos does not truly hold views against participation in war in any form which are derived from religious training and belief" (Italics added).

On September 11, 1969, the petitioner was told by his commanding officer that...