Gresham v. Franklin, Civ. No. C-70-1250.
| Decision Date | 29 July 1970 |
| Docket Number | Civ. No. C-70-1250. |
| Citation | 315 F. Supp. 850 |
| Parties | James T. GRESHAM, Petitioner, v. Reginald A. FRANKLIN, General Stanley Larsen, and Secretary Stanley Resor, Respondents. |
| Court | U.S. District Court — Northern District of California |
Gary I. Near, San Francisco, Cal., for petitioner.
James L. Browning, Jr., U. S. Atty., Richard F. Locke, Asst. U. S. Atty., San Francisco, Cal., for respondents.
Order and Opinion Granting Petition for Writ of Habeas Corpus
Petitioner James T. Gresham is presently a Specialist 4th Class in the United States Army stationed at the Presidio in San Francisco, California. He brings this petition for a writ of habeas corpus in order to secure his discharge from military service as a conscientious objector, his application therefor having been denied by the Army.
Gresham did not seek classification as a conscientious objector until after his entry into the Army. Upon crystalization of his beliefs as a conscientious objector, Gresham made a proper request for discharge pursuant to Department of Defense Regulation 1300.6 and Army Regulation 635-20.
The sequence of events pertinent to Gresham's claim is as follows. Gresham was inducted into the United States Army on January 3, 1969. On March 10, 1969, after completing basic combat training at Fort Lewis, Washington, Gresham was assigned to the Sixth United States Army Band at the Presidio in San Francisco, California.
On February 12, 1970, Gresham was issued orders directing him to report on March 26, 1970, to the United States Overseas Replacement Station, Fort Lewis, Washington, for assignment to Vietnam. On March 6, 1970, Gresham filed his application for discharge as a conscientious objector.
Thereafter, and in accordance with applicable procedure under Army Regulation 635-20, Gresham was interviewed by a chaplain, an O-3 hearing officer, a psychiatrist, and his commanding officer. The chaplain found that Gresham's decision to apply for conscientious objector status was "based upon a philosophic humanitarian concern rather than a strongly religious conviction in the traditional pattern." The chaplain found his sincerity to be "above question."
The O-3 hearing officer noted that Gresham's application was filed late—i. e., after Gresham had received orders to report to Vietnam. Nonetheless, after discussing Gresham's beliefs and military experiences, the O-3 hearing officer, like the chaplain, found Gresham to be sincere and recommended that his application be approved.
The required psychiatric examination of Gresham revealed no evidence of psychiatric disease.
Gresham's commanding officer recommended disapproval of his application, noting as his only reason that "EM did not apply for discharge from the Army until after receipt of orders for Vietnam."
The next higher commanders, the Commanding Officer, Sixth Army Special Troops and the Commanding General, Sixth United States Army, both recommended disapproval of Gresham's application on the grounds, respectively, that such application was based on philosophical views and primarily on sociological and philosophical views.
The Department of the Army, Class I-O Conscientious Objector Review Board disapproved Gresham's application with the following reason:
The threshold determination in each conscientious objector case is the issue of sincerity. The Board finds that Gresham is not sincere. He does not sincerely hold the views that he professes in his application. Gresham did not apply until he received orders for Vietnam. The convenience of this timing to Gresham's external situation is to sic obvious to disregard. It creates great suspicion as to his sincerity, and this suspicion is confirmed by Gresham's unit commander, CW4 Reginald Franklin. Warrant Officer Franklin had the opportunity to observe Gresham first hand, and, therefore, his opinion as to Gresham's sincerity is entitled to considerable weight.
On June 10, 1970, notification of this disapproval was sent to Gresham.
Despite the opinions of the Commanding Officer, Sixth Army Special Troops and the Commanding General, Sixth United States Army, to the effect that...
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