Friedberg v. Resor, 119

• Decision Date: 29 December 1971
• Docket Number: No. 119,Docket 71-1573.,119
• Citation: 453 F.2d 935
• Parties: Neal M. FRIEDBERG, Petitioner-Appellant, v. Stanley R. RESOR, Individually and as Secretary of the Army, and Commanding Officer, Individually and as Commanding Officer of the United States Army Reserve Components Personnel Center, Fort Benjamin Harrison, Indiana, Respondents-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

453 F.2d 935 (1971)

Neal M. FRIEDBERG, Petitioner-Appellant, v. Stanley R. RESOR, Individually and as Secretary of the Army, and Commanding Officer, Individually and as Commanding Officer of the United States Army Reserve Components Personnel Center, Fort Benjamin Harrison, Indiana, Respondents-Appellees.

No. 119, Docket 71-1573.

United States Court of Appeals, Second Circuit.

Argued October 5, 1971.

Decided December 29, 1971.

Joan Goldberg, New York City (Kristin Booth Glen and Rabinowitz, Boudin & Standard, New York City, on the brief), for petitioner-appellant.

Daniel Riesel, Asst. U. S. Atty., New York City (Whitney North Seymour, Jr., U. S. Atty., S.D.N.Y., and Alan B. Morrison, Asst. U. S. Atty., New York City, on the brief), for respondents-appellees.

Before MURRAH,^* WATERMAN and SMITH, Circuit Judges.

MURRAH, Circuit Judge:

Dr. Neal M. Friedberg, the appellant, is a Captain in the United States Army Reserves. He enlisted shortly after graduating from medical school, under the "Berry Plan," which permits doctors to complete their residency training prior to being called for two years of active duty. He was commissioned a First Lieutenant in February, 1967, and was automatically promoted to the rank of Captain in May, 1969. In October of 1969, after the Army had begun processing Friedberg for active duty as a physician, he requested a preferential duty assignment in the Netherlands, Germany or Japan in exchange for a one year extension of his active duty requirement. The request was denied and on March 17, 1970, Friedberg received orders to report for five weeks training prior to assignment to Vietnam. Less than a month later, pursuant to Department of Defense Directive 1300.6 and Army Regulation 135-25, he submitted his application for discharge as a conscientious objector.

The investigation and interviews which followed, as provided by AR 135-25, resulted in a recommendation that the conscientious objector application be given favorable consideration and approval. This recommendation was then forwarded to Lt. Col. L. W. Douglas who was technically Friedberg's unit commander.¹ In addition to the material forwarded to him, Lt. Col. Douglas considered Friedberg's complete military file, which was not available to the interviewing officers. Influenced strongly by Friedberg's offer to extend his active duty obligation in exchange for a preferential duty assignment, Lt. Col. Douglas recommended the conscientious objector discharge be denied. Friedberg's entire file, including statements and recommendations of the interviewing officers and Lt. Col. Douglas, was then forwarded to the Commanding Officer, U.S. Army Reserve Components Personnel Center, Fort Benjamin Harrison, Indiana, who convened a Conscientious Objector Review Board to review Friedberg's case and make a final determination of his application. The Review Board, composed of three Army officers, denied the application stating:

"The Board unanimously believed that CPT Friedberg\'s alleged conscientious objector beliefs are not truly held; are not grounded in religious training and belief (to include strongly held moral and ethical convictions); and any objection to war in any form he might truly hold is based solely on views that existed prior to his initial entry into the military service, consideration of policy, and expediency."

Friedberg then filed his petition for a writ of habeas corpus. The question of the District Court's in personam jurisdiction over respondent was not raised and any possible objection was waived by respondent's appearance. See Rosengart v. Laird, 449 F.2d 523 (2d Cir. June 9, 1971), and cf. Strait v. Laird, 445 F.2d 843 (9th Cir. 1971), cert. granted, 404 U.S. 955, 92 S.Ct. 308, 30 L.Ed.2d 271. The District Court found that there was a "solid factual basis" for the Review Board's determination that Friedberg was insincere in his alleged beliefs² and denied the habeas corpus petition.

Friedberg appeals claiming that in processing his application the Army failed to observe its own regulations as well as fundamental concepts of due process of law. He, moreover, claims that there was no basis in fact for the Review Board's determination that he is not a conscientious objector within the applicable statutory standards, and that even if some basis in fact did exist the Review Board's decision cannot stand since some of the reasons given in support of it were clearly predicated on an erroneous view of the law. We think the case must be reversed and remanded for failure of the Review Board to comply with admittedly applicable Army regulations in processing Friedberg's application for discharge as a conscientious objector.

Orderly government requires us to tread lightly on the military domain, with scrupulous regard for the power and authority of the military establishment to govern its own affairs within the broad confines of constitutional due process. See Orloff v. Willoughby, 345 U.S. 83, 93-94, 73 S.Ct. 534, 97 L.Ed. 842 (1953); Feliciano v. Laird, 426 F.2d 424, 427 (2d Cir. 1970); Nixon v. Secretary of Navy, 422 F.2d 934, 939 (2d Cir. 1970). It is, however, well established in this Circuit and apparently agreed in this case that habeas corpus lies to inquire whether the armed services have adhered to applicable regulations and statutes in cases of this kind. United States ex rel. Schonbrun v. Commanding Officer, 403 F.2d 371, 373 (2d Cir. 1968), cert. denied, 394 U. S. 929, 89 S.Ct. 1195, 22 L.Ed.2d 460 (1969); Hammond v. Lenfest, 398 F.2d 705 (2d Cir. 1968). ". . . A validly promulgated regulation binds the government as much as the individuals subject to the regulation; and, this is no less so because the governmental action is essentially discretionary in nature." Hammond v. Lenfest, 398 F.2d 705, 715. See also Hollingsworth v. Balcom, 441 F.2d 419, 421 (6th Cir. 1971); United States ex rel. Donham v. Resor, 436 F.2d 751, 754 (2d Cir. 1971); Smith v. Resor, 406 F.2d 141, 145 (2d Cir. 1969).

The parties agree that AR 135-25 is the governing regulation in this case. Paragraph 7(h) of that regulation specifically provides:

"The Commanding Officer, U.S. Army Reserve Components Personnel Center, will convene a board of officers to determine findings and submit recommendations on all applications for discharge submitted under this regulation. The board will follow the general procedures set forth in AR 15-6. The format of the board proceedings will be prescribed by the Commanding Officer, U.S. Army Reserve Components Personnel Center."

The Review...