Frisby v. Larsen
| Decision Date | 28 November 1973 |
| Docket Number | No. 71-2771.,71-2771. |
| Parties | Albert V. FRISBY, Plaintiff-Appellee, v. General Stanley LARSEN et al., Defendants-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Capt. Stephen D. Petersen (argued), 6th U.S. Army Office of the Staff Judge Advocate, James L. Browning, Jr., U. S. Atty., Janet Aitken, John F. Cooney, Jr., F. Steele Langford, Frederic F. Tilton, Asst. U. S. Attys., San Francisco, Cal., for defendants-appellants.
Richard L. Romano (argued), San Francisco, Cal., for plaintiff-appellee.
Before MERRILL and CARTER, Circuit Judges, and EAST, District Judge.*
Rehearing and Rehearing En Banc Denied November 28, 1973.
The petitioner-appellee Frisby was inducted into the Army on June 8, 1970. He became conscientiously opposed to personal armed combat and applied for reassignment to non-combatant duties under (AR) 600-200. To support the application Frisby presented his statements and documentary evidence communicating and expostulating his religious belief in existence of and the Deity's establishment and sanctification of all life. The Army officials found Frisby's religious beliefs to be "sincerely and deeply" held, speedily approved and reassigned him to training as a medical corpsman on November 25 following.
After some days of exposure to the reassignment duties and his readings of Army field manuals, Frisby concluded that he as a medical corpsman in combat would be involved not as a humanitarian helping the sick and wounded generally, but on the contrary he would be actively assisting the combat operations under order to favor "those patients who can be returned to immediate duty, rather than those more seriously injured."
Frisby thereupon applied for discharge under (AR) 635-20 on the following December 14th. A hearing officer found Frisby to be "insincere" in his beliefs as asserted, and extended, and the Conscientious Objector Review Board (CORB) on April 12, 1971, accepted the hearing officer's finding and rationale in denying the application for the reason that Frisby lacked the "depth of conviction to qualify for discharge."
The hearing officer's finding of "insincerity" of religious beliefs was based upon essentially the same evidence and is completely at variance with the Army officials' findings and conclusions in granting the status of conscientious objector to Frisby only a few weeks before and cannot stand.
The extension of Frisby's religious beliefs in opposition to personal combat duties to include the duties as a medical corpsman, involves a personalized reading of the Army field manuals and understanding of the duties required, and is a recognized permissible concept. United States v. Newton, 435 F.2d 671 (9th Cir. 1970).
Frisby's statements and documentary evidence before the hearing officer presented a prima facie showing of his personalized rational extension of his religious belief. The record before the hearing officer and CORB is devoid of any evidence in opposition to Frisby's statement and documentary evidence in support of the prima facie case. The hearing officer's appraisal of Frisby's presentation and appearance which caused him to disbelieve Frisby has no factual foundation in the record. The timing, or brief lapse of time between Frisby's two applications is not viable or probative evidence in and of itself to support any inference adverse to Frisby's "sincerely and deeply" held religious beliefs. Newton, supra, at 674.
We conclude that the hearing officer's findings of insincerity are not supported by any evidence and were arbitrarily made and further that CORB's denial of Frisby's application for discharge was unlawful and invalid. Newton, supra. The District Court's order granting writ of habeas corpus entered on August 4, 1971, 330 F.Supp. 545, is affirmed.
This is an appeal from the district court's grant of a writ of habeas corpus to an in-service conscientious objector. Frisby v. Larsen (N.D.Cal.1971) 330 F. Supp. 545. The majority has sustained the action of the district court.
Two principal questions are involved:
(1) Was there a basis in fact for the military's decision not to grant appellee Frisby a I-O classification, within five months of granting him a I-A-O non-combatant classification?
(2) May demeanor evidence alone provide a basis in fact?
Respectfully disagreeing with the majority, I dissent and would reverse, answering both questions in the affirmative.
Frisby was inducted into the Army on June 8, 1970. On August 9, 1970, he completed basic combat training and was assigned to another post for advanced infantry training. The next day, August 10, he applied for in-service non-combatant status as a I-A-O conscientious objector. This application was approved by the designee of the Secretary of the Army on November 25, 1970, and Frisby was so notified on or about December 1, 1970.
Frisby was then to be assigned for training as a medical corpsman. He looked through a manual for medics, and came to the position that he could not support the taking of lives through duty as a medic. As of December 9, 1970— eight days after he was notified of his I-A-O classification—Frisby had begun gathering letters in support of an application for a I-O classification conscientious objection to any participation in war, which would, if granted, require his discharge from the Army.
During the processing of this new application, a psychiatrist found Frisby had no mental disorder, and a chaplain said Frisby's objection to any form of service was sincere, and based on "personal moral persuasions."
Captain Martin Heming, Judge Advocate General's Corps, the O-3 hearing officer, after interviewing Frisby, rejected his application on four grounds:
(1) lack of sincerity, based on observation of Frisby's demeanor at the hearing, and his apparently rote-learned answers to difficult questions; (2) sudden change from his I-A-O beliefs; (3) the mechanical nature of his responses to questions, and lack of effort to answer; and (4) his apparently flippant attitude that it would be nicer to be out of the Army than in it. On administrative review, both Frisby's company commander, Captain Newman, and his battalion commander, Lt. Col. Andersen, interviewed him, and endorsed the O-3 hearing officer's strong recommendation for disapproval of the application.
Relying on the three officers' views, the Conscientious Objector Review Board (CORB) denied the application on April 12, 1971. The CORB specifically set out the O-3 officer's findings and relied upon them. Frisby filed this petition for a writ of habeas corpus on April 27, 1971, which was granted on August 4, 1971.
The district court stated that Frisby's case "was one of unusual strength...." 330 F.Supp. at 547. It found that "... his present beliefs ... were expressed by his applications in a manner both simple and on occasion eloquent," and quoted parts of the application. Id. at 546 and n. 2. The court proceeded to hold "... that the `basis in fact' must be `rational', consist of `hard, provable, reliable facts', and be evaluated with reference to the strength of countervailing evidence in the record." Id. at 549 footnotes omitted; emphasis added.
It is in the italicized portion of this holding that the district court fell into error. It cited two district court cases, id. at n. 16, for this impermissible weighing of the evidence. One of those cases is reported. Shirer v. Hackel (N. D.Cal.1970) 330 F.Supp. 369. It is by the same district judge, and states:
Id., 330 F. Supp. at 370.
The Maynard case, upon which the district court relied in this case, through Shirer, does not support the proposition for which it was used. Maynard correctly states that judicial review of selective service classifications is "the narrowest known to the law." All that is required is that the agency determination have a "basis in fact" which "need not even rise to the level of `substantial evidence.'" Maynard, supra, 409 F.2d at 506. It then goes on to say that a basis in fact exists for the agency determination, where, although the registrant has made out a prima facie case for exemption, there is "some proof that is incompatible with the registrant's proof of exemption." Ibid., quoting Dickinson v. United States, 346 U.S. 389, 396, 74 S.Ct. 152, 157, 98 L.Ed. 132 (1953). Then comes the key statement, apparently misinterpreted by the district court below: "The nature of such proof depends upon the nature of the prima facie case." Ibid.
The district court apparently read "nature" to mean that the level or weight, rather than type, of the evidence against the registrant, must vary with the strength, rather than type, of the registrants prima facie case. How else can one explain the district court's statement that the basis in fact must "be evaluated with reference to the strength of countervailing evidence in the record"? 330 F. Supp. at 549.
This interpretation is incorrect. Maynard cited Dickinson, which was a ministerial exemption case. Maynard then went on to quote from Witmer v. United States, 348 U.S. 375, 381-382, 75 S.Ct. 392, 99 L.Ed. 428 (1955), to the effect that objective evidence must appear to counter a ministerial exemption, because the question in those cases is an objective one, namely, whether or not the registrant is in fact a minister. But Witmer points out that in the conscientious objector cases such as ours, the question is a subjective one—whether or not the registrant is sincere. The following language from Witmer is quoted in Maynard, but ignored by the district...
To continue reading
Request your trial