Frey v. Larsen

• Decision Date: 20 September 1971
• Docket Number: No. 26854.,26854.
• Parties: Daniel FREY, Appellant, v. Lt. General Stanley R. LARSEN, Commanding Officer, Sixth Army, et al., Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

448 F.2d 811 (1971)

Daniel FREY, Appellant, v. Lt. General Stanley R. LARSEN, Commanding Officer, Sixth Army, et al., Appellees.

No. 26854.

United States Court of Appeals, Ninth Circuit.

September 20, 1971.

Paul Harris, San Francisco, Cal., for appellant.

James L. Browning, Jr., U. S. Atty., Richard F. Locke, Asst. U. S. Atty., San Francisco, Cal., for appellees.

Before MADDEN,^* Senior Judge, United States Court of Claims, and DUNIWAY and TRASK, Circuit Judges.

TRASK, Circuit Judge:

This is an appeal from the district court's denial of Frey's petition for a writ of habeas corpus seeking discharge from the Army as a conscientious objector. This court has jurisdiction pursuant to 28 U.S.C. § 2253.

On June 16, 1969, Frey was inducted into the United States Army for two years of active duty. On December 23, 1969, subsequent to receiving his orders for Vietnam and just prior to his scheduled departure overseas, appellant filed with the Oakland Army Base an application for discharge from the Army, claiming that he was conscientiously opposed to war in any form. In accordance with Army Regulation 635-20 para. 4(c) and (d),¹ Frey was interviewed by a chaplain, a psychiatrist, and an officer of grade O-3 or higher. The psychiatrist found his mental status to be within normal limits. The chaplain noted the religious source of his objection and concluded that "his outlook on life has been influenced by his religious beliefs and will continue to be so." The O-3 hearing officer, however, concluded that appellant's objection had no religious basis, that it was the same as it had been prior to induction, and that he did not object to all wars. C.T. 73-74. Frey submitted a letter of rebuttal to the hearing officer's adverse findings. C.T. 75-77.

Appellant's file was subsequently reviewed by the Army Conscientious Objector Review Board.² The Board recommended disapproval, giving as its reasons that Frey's objection was to a particular war and that his views were fixed prior to his entry into military service. C.T. 158-59. The application was ultimately disapproved by the Adjutant General on the basis that appellant's claim was "based on objection to a particular war rather than being opposed to war in any form". C.T. 78.

Almost immediately Frey filed a second application which differed from the first only in the more lengthy articulation of his asserted objection to war in any form. He again was interviewed by a psychiatrist and a chaplain, the latter concluding that Frey was not sincere in his objection to participation in war in any form and that his belief was not primarily religious in basis and origin. C.T. 99. No facts or reasons were given in support of these findings. Frey again submitted a letter of rebuttal.

A second O-3 hearing officer determined that appellant's beliefs, although religious in nature, were not sincerely held. C.T. 102-04. This opinion as to Frey's insincerity was based on (1) the fortuitous syncronization of his beliefs with his imminent departure for Vietnam; (2) the absence of any public expression of his religious beliefs against participation in war in any form prior to reporting for processing to Vietnam; (3) statements which suggested that, notwithstanding his opposition to killing in all wars, appellant was opposed to non-combatant duty only in politically unpalatable wars; (4) appellant's lack of deep thought concerning the extent of his professed beliefs; and (5) his statement that he had not applied for I-A-O (Noncombatant Duty) status because he would have been sent to Vietnam. Once again appellant submitted a letter of rebuttal to the adverse findings. C.T. 105-07.

Appellant subsequently received a favorable recommendation from his commanding officer (C.T. 195) and unfavorable recommendations from two reviewing officers. C.T. 184, 185. The file was again forwarded to the Army Conscientious Objector Review Board. The Board recommended disapproval this time on the basis that Frey's professed beliefs were not truly held. C.T. 161. In making this recommendation the Board relied upon the fact that the application was filed after receipt of orders for Vietnam and that the application indicated that appellant was opposed to this particular war rather than war in any form. The Board also noted that a chaplain, a hearing officer and two reviewing officers all doubted Frey's sincerity. The application was ultimately disapproved by the Adjutant General on the ground that Frey's views were not truly held. C.T. 162.

Having been unsuccessful in obtaining an administrative discharge, appellant filed a petition for writ of habeas corpus in the District Court for the Northern District of California, the jurisdiction in which he was in "custody," Johnson v. Laird, 435 F.2d 493, 496 (9th Cir. 1970), and which contained his custodian; i. e., an officer in his chain of command. Schlanger v. Seamans, 401 U.S. 487, 489, 91 S.Ct. 995, 28 L.Ed.2d 251 (1971); Strait v. Laird, 445 F.2d 843 (9th Cir. 1971). The district court reviewed the record for both applications and concluded that there was a basis in fact for the Army's determination. C.T. 231-32. This appeal followed. We affirm.

Our review of military determinations is said to be "the narrowest known to the law." Negre v. Larsen, 418 F.2d 908 (9th Cir. 1969), aff'd sub nom. Gillette v. United States, 401 U.S. 437, 91 S.Ct. 828, 28 L.Ed.2d 168 (1971). We are limited to a determination of whether there is a basis in fact in the record for the military determination. Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567 (1946). In other words, the only issue before this court is whether there is a basis in fact for the Army's finding that appellant was insincere in his asserted objection to participation in war in any form.

This court has held that a disbelief in sincerity sufficient to justify a denial of conscientious objector status must be supported by objective facts in the record from which the administrative board could have fairly drawn an inference of sham or insincerity.³ United States v. Hayden, 445 F.2d 1365 (9th Cir. 1971).⁴ The filing of an application for discharge as a conscientious objector after receipt of orders to report to Vietnam is an objective fact which may be considered by the military in determining the applicant's sincerity. Speer v. Hedrick, 419 F.2d 804 (9th Cir. 1969). However, it is a subject of some doubt in this circuit as to whether late filing alone constitutes a basis in fact for a determination of insincerity. Zemke v. Larsen, 434 F.2d 1281, 1282 n. 1 (9th Cir. 1970).

Nevertheless, there are additional matters in the record which supply the minimal quantum of facts necessary to constitute a basis in fact. In his interview before the second...