Hager v. Secretary of Air Force, 91-1103
| Decision Date | 05 April 1991 |
| Docket Number | No. 91-1103,91-1103 |
| Citation | 938 F.2d 1449 |
| Parties | Gilbert P. HAGER, M.D., etc., Petitioner, Appellant, v. SECRETARY OF the AIR FORCE and Commanding General, Hanscom Air Force Base, Massachusetts, Respondents, Appellees. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
Peter A. Fenn with whom Melinda Drew and Fenn and King, were on brief, Jamaica Plain, Mass., for petitioner, appellant.
Annette Forde, Asst. U.S. Atty., with whom Wayne A. Budd, U.S. Atty., was on brief, Boston, Mass., for respondents, appellees.
Before BREYER, Chief Judge, BOWNES, Senior Circuit Judge, and TORRUELLA, Circuit Judge.
Petitioner-appellant Gilbert P. Hager, M.D., a captain in the United States Air Force, appeals from the district court's denial of his petition for a writ of habeas corpus seeking discharge from the Air Force on the ground that he is a conscientious objector. Dr. Hager had petitioned for the writ after respondent-appellee, the Secretary of the Air Force ("the Secretary"), denied his application for conscientious objector status.
In 1981 Gilbert Hager joined the Air Force Reserves and was commissioned a second lieutenant in the Air Force Medical Services Corps. Under the Health Professional Scholarship Program ("HPSP") he attended medical school, receiving from the Air Force a monthly stipend and tuition, amounting to approximately half the cost of his medical school expenses. Upon graduation Dr. Hager was to serve as an Air Force physician for four years. Commissioned a captain when he finished medical school in 1985, Dr. Hager sought and was granted a deferment of his active duty assignment in order to pursue post-graduate training in the specialty of physiatry (physical medicine and rehabilitation). He completed his post-graduate training in 1989, none of which was subsidized by the Air Force.
As the end of his studies drew near and two months before being called to active service, Dr. Hager submitted his resignation and application for separation from the Air Force on the grounds of conscientious objection to participation in war in any form. Offering to perform alternative, non-military service and to pay back the Air Force for its contribution to his medical education, Dr. Hager stated in his discharge application that his religious and moral beliefs prevented his continued participation in any organization whose mission is the "mass delivery of death and destruction." He explained that he had been raised a member of the Baptist church and while in high school had also become interested in other world religions and philosophies, including Buddhism, Hinduism and Taoism. A year spent in India during college in 1969-70 further influenced his developing religious beliefs. In 1988 he met and married a Japanese-American woman who had been raised Buddhist. Because of their "affinity for both Christian and Buddhist ideals," they were married by a Buddhist monk and again by a Protestant minister the following day. He described the nature of his conscientious beliefs as follows:
My religious and moral convictions are derived from the study of many of the world's great religions. I believe the ideas of religion and philosophy that are truly useful to quality living are those which are shared by most religious schools of thought, and I have found that almost all of the religions of the world share the belief that one should not kill. In the Judeo-Christian tradition this basic moral tenet is stated quite simply as one of the Ten Commandments, and Jesus taught that one should even turn the other cheek when confronted by violence. In Hinduism the ideal of Ahimsa is to avoid the destruction of life in any form. In my view, one of the greatest guidelines for human behavior is the Golden Rule which tells me that I should never do to someone else what I would not have done to me. I do not want anyone to kill me or create pain and suffering in my life, so I must not kill others or contribute in any way to their misery. To me it is morally wrong, therefore, and against my conscience to take a human life.
My concept of a Supreme Entity or God is that of a Guiding Energy that helps the Universe to unfold within the Time-Space continuum and according to the laws of physics. To me, there seems to be a flow to the unfolding that the Taoists call the Way. Atoms, molecules, inanimate objects, plants, and animals have no choice but to follow the Way, as it is inherent in their nature. Of all the entities that inhabit the physical world, Humans are the only ones who have the option to resist the Way, and it is this resistance that brings us unhappiness. This to me is what is meant by the term Sin, which the Theologian, Paul Tillich, defines as the state of separation from oneself, other people, and God. One can endeavor to reduce this separation and stay in harmony with the Way (with God) through meditation (prayer), and if one succeeds then one has attained Nirvana, the blissful state of enlightenment, which I feel is the same as Salvation.
I believe in the Hindu and Buddhist ideal of Karma which strengthens my resolve against killing by reminding me of the cause and effect nature of our existence. In other words, my actions have repercussions which will affect not only my future life but also the lives of others as well as the environment in which we live. I feel I must be careful to act in such a way that I create good Karma rather than bad in order to contribute to the good of humanity, and not to the continuation of pain and suffering. Again it is meditation and prayer that guides me in making the choices that will create good Karma, reduce my Sin, and help me to stay in harmony with God.
I also subscribe to the Mahayana Buddhist Boddhisattva ideal which teaches that an important component of striving for one's own enlightenment (salvation) is the development of compassion for others, as manifested by the desire to help them in their suffering, both physical and spiritual, and to lead them whenever possible toward their enlightenment. Inherent in this ideal is the belief that there is one Life Force which connects all living beings, so the prevention of suffering for one requires the prevention of suffering for all. Compassion leads one to make sacrifices in one's own life for the good of others and especially for the common good of all humanity.
* * * * * *
As a physician who believes in the oneness of humanity and the precious nature of the Life Force, I cannot reconcile the concept of an enemy. To me all the people of the world are part of my Community, no matter what race, creed, or political affiliation, and I cannot conceive of a circumstance where I would participate in or condone the killing of any of them.
According to Dr. Hager he began thinking about his role in the military in early 1988 when he visited the hospital at Lackland Air Force Base in Texas, where he would most likely be stationed. There it was explained to him that the physical medicine and rehabilitation training he had received would be essential during wartime for rehabilitating troops for return to battle.
His marriage to a Japanese-American woman spurred Dr. Hager to think more seriously about his "humanitarian ideals" and to consider the impact another war against an Asian country would have on his future children, half of whose blood would be Asian. In early 1989 he "began to feel within [him] a growing conflict between [his] religious and moral values and [his] obligation to serve on active duty in the Air Force." According to Dr. Hager:
About that time I treated a little boy from Guatemala who is paralyzed from the waist down because a bullet fired reportedly by the Contras missed his father and entered his spine. I am morally outraged by this violent act, which I consider to be the direct result of the philosophy that war and violence are acceptable ways to achieve an end, and I know that I cannot participate in any way in the continuation of that philosophy.
Inevitably, my religious views and prayer led me to the inescapable conclusion that I am a Conscientious Objector to war in any form and cannot serve on active duty in the Air Force in any capacity. I know from being married to a woman of another race and from having thought and prayed deeply about my religious beliefs, that I am part of the extended family of mankind that unites all races. I know now that I cannot participate in war anytime, anyplace, for any reason. For me it is fundamentally wrong to participate in any military organization, and I cannot violate my conscience by doing so.
In addition to his application for discharge Dr. Hager submitted eight witness statements attesting to his sincerity. Among them was a statement from Vincent deGregoris, Professor of Pastoral Psychology from the Eastern Baptist Theological Seminary, who stated he had known Dr. Hager for over twenty years and had recently had a conversation with him about his religious and moral beliefs. Professor deGregoris stated that he was Reverend Harrington M. Gordon, Jr., Dr. Hager's parish priest, stated that he had known Dr. Hager After speaking with Dr. Hager on the subject, Rev. Gordon was of the opinion that Dr. Hager's request for a discharge "has come about in his life by a long period of thinking and sorting out and actually coming to know his own mind in this area of being a Conscientious Objector to War, its means, its destruction...." (Emphasis original).
Pursuant to Air Force Regulation ("AFR") 35-24 1 Dr. Hager was interviewed by a chaplain and a psychiatrist, 2 who filed written reports based on their interviews....
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