Font v. Laird

• Decision Date: 24 July 1970
• Docket Number: Civ. No. 70-716H.
• Citation: 318 F. Supp. 891
• Parties: Lieutenant Louis P. FONT, Petitioner, v. Melvin LAIRD, Secretary of Defense; Stanley R. Resor, Secretary of the Army; Lt. General Jonathan O. Seaman, Commanding General, First United States Army, Fort George G. Meade, Maryland, Defendants.
• Court: U.S. District Court — District of Maryland

318 F. Supp. 891

Lieutenant Louis P. FONT, Petitioner, v. Melvin LAIRD, Secretary of Defense; Stanley R. Resor, Secretary of the Army; Lt. General Jonathan O. Seaman, Commanding General, First United States Army, Fort George G. Meade, Maryland, Defendants.

Civ. No. 70-716H.

United States District Court, D. Maryland.

July 24, 1970.

Marvin M. Karpatkin and Karpatkin, Ohrenstein & Karpatkin, Rhoda H. Karpatkin, Michael N. Pollet, Melvin L. Wulf, New York City, and Elsbeth Levy Bothe, William Zinman, Baltimore, Md., for petitioner.

George Beall, U. S. Atty., and Francis S. Brocato, Asst. U. S. Atty., Baltimore, Md., for defendants.

MEMORANDUM OPINION

HARVEY, District Judge:

Petitioner, a First Lieutenant in the United States Army, is presently assigned to the Office of the Adjutant General, Division of Military Personnel Affairs at Fort Meade, Maryland. In this habeas corpus proceeding, he maintains that he is entitled to be discharged from the Army as a conscientious objector under applicable Army regulations and under various provisions of the United States Constitution.

This then is another in the rash of cases that have in recent months come before this and other courts in the Fourth Circuit in which a member of the armed services has sought the issuance of a writ of habeas corpus which would have the effect of granting the serviceman in question a discharge. I would refer to the Fourth Circuit cases of United States ex rel. Brooks v. Clifford, 409 F.2d 700 (1969); United States ex rel. Tobias v. Laird, 413 F.2d 936 (1969) and to various District Court decisions of this Court, including Cooper v. Barker, 291 F.Supp. 952 (D.Md.1968); Reitemeyer v. McCrea, 302 F.Supp. 1210 (D.Md.1969); Talford v. Seaman, 306 F.Supp. 941 (D.Md.1969); Donigian v. Laird, 308 F.Supp. 449 (D.Md.1969); McGehee v. McKaney, 312 F.Supp. 1372 (D.Md.1970); Lohmeyer v. Laird, 318 F.Supp. 94 (D.Md.1970); and Keil v. Seaman, 314 F.Supp. 816 (D.Md.1970).

No good purpose would be served by a further recitation of the statute and regulations under which a serviceman on active duty may apply for a discharge as a conscientious objector. AR 635-20 sets forth the Army procedures for making such application. For a full discussion of the law and the regulations, see the Brooks case, 409 F.2d at pages 702-703 and also the Reitemeyer case, 302 F.Supp. at pages 1211-1213. Suffice it to say that the test to be applied by a court in reviewing action taken by one of the services is whether there was a basis in fact for the ultimate finding that the petitioner in question was not a bona fide conscientious objector.

It appears from the record here that petitioner entered the United States Military Academy in July, 1964, and that he was graduated in the upper five per cent of his class as a "Distinguished Graduate" in June, 1968. During his four years at the Academy, petitioner received numerous honors and qualified to attend the John F. Kennedy School of Government at Harvard for a two-year graduate course leading to a Master of Arts Degree in Public Administration.

Petitioner began his studies at Harvard in the fall of 1968 and was assigned to Headquarters, First U. S. Army Student Detachment. On February 27, 1970, petitioner submitted to Headquarters, Department of the Army, through Respondent Seaman as Commanding Officer of the First U. S. Army, an application for a discharge as a conscientious objector. The essence of that application is contained in the following paragraph (paragraph 2, page 1 of petitioner's application);

"On grounds of conscience I can in no way participate in the Armed Forces in any capacity during the Vietnam War. My religious beliefs compel me to regard the Vietnam war as immoral and unjust and I cannot contribute in any capacity to an immoral war."

Thereafter, on March 13, 1970, petitioner received notice by telephone that he had just been reassigned to duty at Fort Meade, Maryland. On March 16, he received written confirmation of that order and was told to report to Fort Meade on March 17. Petitioner so reported.

The psychiatric examination required by AR 635-20 was conducted by Major Frederick Fisher on March 18, 1970. In his report, which was written the same day, Major Fisher specifically found petitioner to be sincere and without "evidence of a thought disorder." The report concluded that "Subject Officer is cleared for any administrative and judicial disposition as deemed fit by Command."

Also as required by Army regulations, petitioner was interviewed on March 18 and again on March 20, 1970 by Major Billy M. Whiteside, a Methodist chaplain, whose report is dated March 23, 1970. Major Whiteside summarized his findings as follows:

"a. I, personally, find no basis in which to question nor doubt the sincerity of Lieutenant Font in his convictions regarding his course of action.

"b. It is quite evident that the primary source of his convictions is religious and his interpretation of Christian principles and ideals are in keeping with the fundamental teachings he received in his home and church while growing up.

"c. I was deeply impressed with his sincerity and the analytical formulation of his conclusion."

Finally, on April 14, 1970, the hearing required by the Regulations to be held before an O-3 officer was conducted by Major Donald Cukjati. The record contains an 88-page, single spaced transcript of that hearing, as well as the verified statement of Major Warner D. Stanley III which was introduced at the hearing. At this adversary proceeding, petitioner was represented by his attorneys. Petitioner testified in his own behalf and also called as witnesses Dr. Paul K. Deats, a Methodist clergyman and professor at the Boston University School of Theology; Dr. Charles P. Price, an Episcopal minister and Preacher at Harvard University; Dr. John M. Swomley, Jr., a Methodist minister and professor at the St. Paul School of Theology at Kansas City; and Major John R. Landry and Mr. Charles Sweet, both of whom were graduate students at the Kennedy School of Government.

Following this hearing, on April 22, 1970, Major Cukjati issued his findings of fact, determining petitioner to be sincere in his beliefs but recommending that his application for discharge be denied on the ground that petitioner did not qualify as a conscientious objector under AR 635-20, since he objected merely to participation in a particular war.

The Adjutant General at Fort Meade, Colonel H. J. Webb, concurred in these findings and on April 22 forwarded to the Adjutant General, Department of the Army, a recommendation that petitioner's application be denied on the ground of selective conscientious objection. Colonel Webb made no specific finding as to petitioner's sincerity.

The final disposition of petitioner's application was made by the "Class I-O Conscientious Objector Review Board." On June 2, 1970, the Board prepared a written opinion disapproving petitioner's application. Several days later, on June 11, Major Rodney E. Hurt of the Adjutant General's office informed petitioner of the Board's action, stating: (1) that petitioner lacked "the depth of sincerity to qualify for discharge as a conscientious objector under the provisions of AR 635-20"; and (2) that petitioner's claim was based on objection to a particular war as prohibited by AR 635-20, paragraph 3(b) (4).

On June 12, 1970, petitioner was ordered to report to Fort Benning, Georgia, on June 18 to attend a two-month Infantry Officer Basic Course and then to join the 176th Replacement Company on September 28 (which petitioner alleges is scheduled for deployment to Southeast Asia).

On June 16, 1970, petitioner filed the pending petition for a writ of habeas corpus in this Court. In particular, his petition is based upon the following grounds:

(1) That Major Hurt's finding of insincerity is arbitrary, capricious, and without basis in fact;

(2) That Major Hurt's finding that petitioner did not qualify as a conscientious objector under AR 635-20, "as properly interpreted and applied," was without basis in fact;

(3) That petitioner was denied his right to procedural due process by being prevented from submitting a legal memorandum to Major Cukjati prior to his recommendation, by being denied access to his file as it was submitted to the Conscientious Objector Review Board, and by being denied the right to an appearance at the Department of the Army level; and

(4) That denial of C.O. status because of objection to participation only in a particular war constitutes a violation of the Free Exercise and Establishment Clauses of the First Amendment, the Due Process Clause of the Fifth Amendment, and the Equal Protection Clause of the Fourteenth Amendment.

This Court has heretofore entered temporary restraining orders and a preliminary injunction, enjoining respondents from removing petitioner from this District during the pendency of this action.

Several of the questions here can be disposed of summarily. First, it is clear that petitioner has not been denied procedural due process by the Army. Indeed, the hearing he was afforded was a much more extensive one than is usually the case in proceedings of this sort. He was represented by experienced counsel who not only participated in the questioning of witnesses but who were further permitted to present a summation and final argument in petitioner's behalf. As noted hereinafter, the principal issues in this case, in any event, are questions of law, and those issues have been very fully briefed and argued in this Court.

Next, I would note that the Army based its rejection of petitioner's application first on the factual finding that petitioner's beliefs were not sincerely held. After reviewing this voluminous record, I cannot agree. Although Font did delay the filing of his application until February, 1970, I do not thereby conclude that he was insincere in his opposition to the Vietnam war. There may be some evidence of uncertainty...