Cywinski v. Binney, Civ. No. B-80-0062.

• Decision Date: 11 March 1980
• Docket Number: Civ. No. B-80-0062.
• Citation: 488 F. Supp. 674
• Parties: In the Matter of the Petition on the Behalf of Carol Ann CYWINSKI for a writ of habeas corpus v. Colonel Charles W. BINNEY, Commander and Secretary of Defense.
• Court: U.S. District Court — District of Maryland

488 F. Supp. 674

In the Matter of the Petition on the Behalf of Carol Ann CYWINSKI for a writ of habeas corpus v. Colonel Charles W. BINNEY, Commander and Secretary of Defense.

Civ. No. B-80-0062.

United States District Court, D. Maryland.

March 11, 1980.

Philip M. Andrews, John C. Love, and Cameron & Reed, Bel Air, Md., for plaintiff.

Russell T. Baker, Jr., U. S. Atty. for Maryland, Ellen L. Hollander, Asst. U. S. Atty., Baltimore, Md., and Thomas Stanton, Atty. Gen., U. S. Test and Evaluation Command, Aberdeen Proving Ground, Md., for defendant.

MEMORANDUM AND ORDER

BLAIR, District Judge.

Petitioner, an enlisted member of the United States Army since 1974, seeks to secure her release from service, through a writ of habeas corpus. Her claim is based upon the allegedly improper denial of conscientious objector status. She has exhausted the remedies available to her within the Army and now invokes this court's jurisdiction under 28 U.S.C. § 2241. No hearing is necessary, as the questions before the court present issues of law. 28 U.S.C. § 2243. Local Rule 6. The petitioner asserts (1) that the Army failed to follow its own regulations in reaching a determination adverse to her; (2) that she was denied procedural due process; and (3) that there was no basis in fact for the Army's decision.

It is well-settled that the District Courts of the United States have jurisdiction to entertain petitions for habeas corpus filed by military personnel seeking discharge by reason of conscientious objection. Strait v. Laird, 406 U.S. 341, 346, 92 S.Ct. 1693, 1696, 32 L.Ed.2d 141 (1972). The test to determine whether an individual is entitled to conscientious objector status is the same for persons not yet inducted and persons in the military. There are three essential elements: the person must be opposed to war in any form, his or her opposition must be based upon religious training and belief, and his or her objection must be sincere. Clay v. United States, 403 U.S. 698, 700, 91 S.Ct. 2068, 2070, 29 L.Ed.2d 810 (1971).

In recognition of its obligation to honor genuine conscientious objection among military personnel, the Army has promulgated Regulation 600-43 under which an inductee might file for conscientious objector status. Pursuant to this regulation, SP-5 Cywinski submitted an application to her immediate superior, Captain Hindman. She was interviewed by Chaplain William J. DeLeo as required by ¶ 2-3, Army Regulation 600-43, who concluded that she was sincere in her beliefs. Petitioner was next interviewed by a psychiatrist, Captain Ronald K. Gray, M. D., as required by ¶ 2-3b, Army Regulation 600-43. Captain Gray found petitioner had no disqualifying mental defects.

Next, as required by ¶ 2-4 of Army Regulation 600-43, Captain Billy F. Vance was appointed investigating officer to conduct an informal investigation under Army Regulation 15-6, Procedure for Investigating Officers and Boards of Officers. After a hearing, the transcript of which is before the court, Captain Vance submitted written findings in which he concluded that petitioner should be classified as a conscientious objector. After affording the petitioner a chance for comment or rebuttal, and pursuant to ¶ 2-6 of the regulation, SP-5 Cywinski's application was resubmitted to her commanding officer, Captain Hindman.

Captain Hindman "strongly" recommended disapproval of the application. He found as a fact that she had failed to prove by clear and convincing evidence that she met the three criteria for classification as a conscientious objector. He found specifically that she did not adhere to the tenets of her religious training, that she sought various ways of avoiding military responsibility, particularly in view of her pending assignment to Korea, and that because of discrepancies in her representation of the way in which her objection developed or crystallized, she was not sincere in her beliefs.

Captain Hindman's negative recommendation was forwarded to two officers in SP-5 Cywinski's chain of command, as required by AR 600-43, ¶ 2-6c. Both endorsed Captain Hindman's conclusion. The record was thereupon forwarded to the General Court-Martial Convening Authority for his review in accordance with AR 600-43, ¶ 2-6c. As required, he referred the case to his staff judge advocate, who reviewed it for legal sufficiency and returned it to the Convening Authority with a proposed disposition. The staff judge advocate also recommended disapproval, based on reasons in the record. The General Court-Martial Convening Authority, acting under AR 600-43, ¶ 2-7c, recommended disapproval.

The record, including all recommendations except that of the staff judge advocate, which was omitted for unexplained reasons, was submitted to the petitioner and she was given the opportunity to file a rebuttal, which she did. AR 600-43, ¶ 2-7c(1). Finally, at headquarters, the Army Conscientious Objector Review Board unanimously rejected SP-5 Cywinski's petition. The board found that she had failed to articulate clearly the basis for her objection, whether religious or moral, and that she had not proven the sincerity of her beliefs by clear and convincing evidence. This petition followed. The petitioner asserts that the Army failed to follow two of its own regulations, to her prejudice, and that its negative determination was vitiated thereby. She asserts first that the Army violated AR 600-43, ¶ 2-1b in that the approving authority did not render his final determination until 129 days after the application was filed. The regulation provides:

Although the nature of an application for conscientious objector status does not lend itself to fixed scheduling, generally it is expected that in the case of active duty personnel in normal troop unit or garrison configurations, processing from the date of submission to action by the approving authority should require, under normal conditions, less than 3 months. Extraordinary circumstances . . . may lengthen this period. If processing time of an application from such personnel exceeds 90 days, or in any other case exceeds 180 days, the reasons will be stated for the record.

AR 600-43, ¶ 2-1b. The defendant concedes that processing Cywinski's application took over 90 days and that no statement of reasons appears on the record. This court does not find, however, that this violation was such as to taint the entire proceeding. Nothing in the regulation indicates that the expected time limitation is required by the Constitution or by federal statute, and there is no suggestion that the violation of the regulation deprived the petitioner of any constitutional right. It follows, under the reasoning of United States v. Caceres, 440 U.S. 741, 751-52, 99 S.Ct. 1465, 1471-1472, 59 L.Ed.2d 733 (1979), that violation of this regulation without more does not entitle the petitioner to the relief she seeks.

SP-5 Cywinski also asserts that the Army deprived her of procedural due process of law in that it failed to provide her with a copy of the staff judge advocate's recommendation¹ when it submitted the whole record for her review and rebuttal pursuant to AR 600-43, ¶ 2-7c. The applicable regulation does not require that the entire record be submitted to the applicant for rebuttal, only that

the authority who recommends disapproval will furnish the applicant a copy of the disapproval recommendation and the reasons in support thereof.

Nevertheless, the petitioner's argument is not based so much on a perceived regulatory irregularity as on a constitutional one. She asserts that she was denied the opportunity "to review and rebut the information" contained in the staff judge advocate's report, and that such denial constituted a deprivation of due process, under Gonzales v. United States, 348 U.S. 407, 412, 75 S.Ct. 409, 412, 99 L.Ed. 467 (1955). In Gonzales, the Court held that a person who was denied conscientious objector status was entitled as a matter of procedural due process to receive a copy of the recommendation made by the Department of Justice to the Selective Service Appeal Board, upon which the Appeal Board based its denial. Similarly, in Crotty v. Kelly, 443 F.2d 214, 217 (1st Cir. 1971), the First Circuit held that one already inducted into the military has "a right to a copy of all documents which are forwarded to the Conscientious Objector Review Board, at the time they are forwarded, and the right to an opportunity to reply."

The question presented in this case is whether failure of the defendant to supply the staff judge advocate's recommendation amounted to a deprivation of due process. This court holds that it did not.² The document at issue presented no new facts or information in support of its recommendation. It simply summarized reasons stated elsewhere in the record and characterized these as being "sufficient in law and fact" to support the recommended denial. The failure to supply this document is thus distinguishable from the defendants' failures in Gonzales and Crotty, supra. In Gonzales, the petitioner was given no opportunity to review and refute an FBI investigative report which contained substantial factual allegations. In Crotty, the would-be objector not only did not receive the staff judge advocate's report, but also was not furnished the reports of the chaplain, psychiatrist or hearing officer.

This case is much more similar to Cole v. Clements, 494 F.2d 141, 144 (10th Cir. 1974), cert. denied, 419 U.S. 1120, 95 S.Ct. 802, 42 L.Ed.2d 819 (1975), in which the court held that where the petitioner was given copies of every piece of evidence in the record except the staff judge...