Hammond v. Lenfest

• Citation: 398 F.2d 705
• Decision Date: 10 June 1968
• Docket Number: Docket 31909.,No. 461,461
• Parties: Charles A. HAMMOND, SN USNR R, 697 13 52, Appellant-Petitioner, v. H. F. LENFEST, USN, Commanding Officer, USS Coates; Oscar Parker, Captain USN, Commanding Officer U. S. Naval Station, Brooklyn, New York; R. T. Whitaker, Rear Admiral USN, Commandant, Third Naval District, New York, New York, Appellees-Respondents.
• Court: U.S. Court of Appeals — Second Circuit

398 F.2d 705 (1968)

Charles A. HAMMOND, SN USNR R, 697 13 52, Appellant-Petitioner, v. H. F. LENFEST, USN, Commanding Officer, USS Coates; Oscar Parker, Captain USN, Commanding Officer U. S. Naval Station, Brooklyn, New York; R. T. Whitaker, Rear Admiral USN, Commandant, Third Naval District, New York, New York, Appellees-Respondents.

No. 461, Docket 31909.

United States Court of Appeals Second Circuit.

Argued April 29, 1968.

Decided June 10, 1968.

On Rehearing August 26, 1968.

COPYRIGHT MATERIAL OMITTED

Karl Fleischmann, Hartford, Conn. (Satter & Fleischmann, Hartford, Conn., on the brief), for appellant-petitioner.

David Margolis, Asst. U. S. Atty. for District of Connecticut (Jon O. Newman, U. S. Atty., on the brief), for appellees-respondents.

Before WATERMAN, FRIENDLY and KAUFMAN, Circuit Judges.

IRVING R. KAUFMAN, Circuit Judge:

The issue presented by this appeal is of great importance in determining the proper relationship of the federal courts to the military establishment. We are called upon to decide whether an enlisted member of the naval reserve claiming to be a conscientious objector may petition for a writ of habeas corpus to obtain review of the decision of his military superiors denying a discharge requested pursuant to Department of Defense and Navy Regulations.

I.

The facts are undisputed and can be stated briefly. On September 30, 1963, appellant Charles A. Hammond, then a 17-year old high school student, enlisted in the United States Naval Reserve reserve. Since that date he has been on inactive duty and, at the time of the events here in question, was attached as an inactive reserve enlistee to the U.S.S. Coates, stationed in New Haven, Connecticut and commanded by appellee H. F. Lenfest.¹ In September of 1964, Hammond entered the University of Connecticut where he is presently enrolled as a student. Because of his exposure to new currents of thought, he became attracted to the tenets of the Society of Friends Society and in June 1966, became a member of the local "Meeting" of the Society.² It is accepted that the Society of Friends is a religious body which adheres to a pacifistic interpretation of the scriptures. Accordingly, after joining the Society, Hammond became conscientiously opposed to war in any form and, on March 17, 1967, he submitted a request for a discharge to his commanding officer, Lenfest.

Hammond's heretofore futile efforts to secure a discharge — described below — can only be understood in the context of the general procedures adopted in this country for dealing with conscientious objectors. We recently have had occasion to review the history of the special treatment afforded conscientious objectors, see United States v. Gearey, 368 F.2d 144 (2d Cir. 1966). For our purposes it is sufficient to note that commencing as early as 1661 — in the Colony of Massachusetts — and continuing to the present, statutory provisions have been in existence recognizing the special problems and status of conscientious objectors. Selective Service Monograph No. 11, Conscientious Objection Ch. III (1950). Despite the consistent national policy of exempting conscientious objectors from the full rigors of conscription, similar treatment has not been afforded those who become conscientious objectors after entering the service. Thus, both the language of the present draft law, see 50 U.S.C.App. § 456(j), and judicial decisions make clear that the procedural and substantive protections of the statute apply to those facing induction and not to enlisted or inducted personnel already in the armed services. See, e. g., Brown v. McNamara, 263 F.Supp. 686, 691 (D.N.J.), aff'd 387 F.2d 150 (3d Cir. 1967), cert. denied, Brown v. Clifford, 390 U.S. 1005, 88 S.Ct. 1244, 20 L.Ed.2d 105 (1968). Indeed, until 1962, the Department of Defense had no procedures permitting the discharge of military personnel for reason of conscientious objection. See Comment, God, The Army, and Judicial Review: The In-Service Conscientious Objector, 56 Calif. L.Rev. 379, 401 n. 92 (1968) (letter of the Adjutant General of the Army). But, in 1962, pursuant to the authority of 10 U.S.C. § 133 (1964), see Brown v. McNamara, supra, 263 F.Supp. at 688, the Secretary of Defense issued Department of Defense Directive DOD No. 1300.6 (August 21, 1962), providing that:

"No vested right exists for any individual to be discharged from military service at his own request before the expiration of his term of service, whether he is serving voluntarily or involuntarily. * * *

"The fact of conscientious objection does not exempt men from the draft; however, the Congress has deemed it more essential to respect a man\'s religious beliefs than to force him to serve in the Armed Forces. * * * Consistent with this national policy, bona fide conscientious objection by persons who are members of the Armed Forces will be recognized to the extent practicable and equitable.

"* * * request for discharge after entering military service, based solely on conscientious objection which existed but was not claimed prior to induction or enlistment, cannot be entertained." DOD No. 1300.6, Part III.

In accordance with this directive the Navy promulgated its own implementing regulations. Bureau of Naval Personnel BUPERS Instruction 1616.6 (Nov. 15, 1962).³ It was pursuant to these regulations that Hammond sought his discharge.

It is conceded that Hammond carefully and faithfully complied with the requirements of BUPERS 1616.6. His written discharge request contained a six-page appendix supplying necessary information: for example, his personal history, religious and other organization affiliations, the development of his conscientious objection beliefs and the manner in which his way of life established the depths of his convictions. In addition, Hammond submitted statements from various people, including the Clerk of his Meeting, attesting to his character and the sincerity and strength of his beliefs. In accordance with the regulations, commanding officer Lenfest proceeded to interview Hammond and forwarded his evaluation, together with the discharge request, to the Chief of Naval Personnel CNP. BUPERS 1616.6(5a).⁴ Lenfest, the only person who interviewed Hammond, concluded that:

"It is my firm opinion that Hammond is completely sincere in his request and in the reason supporting it. I recommend that Hammond be discharged and inducted into the Alternative Service Plan conscientious objector\'s work program. * * *"

Hammond thus completed the procedural steps required of him by the regulations and had only to await the Navy's disposition of his request.

DOD No. 1300.6 III(E) provides that "claims of conscientious objection by all persons, whether existing before or after entering military service should be judged by the same standards." Accordingly, the CNP referred Hammond's application to the Director of the Selective Service System, General Hershey, for an "advisory opinion" of its validity; the regulations contemplate that a negative decision by General Hershey will normally be decisive. BUPERS 1616.6 (5d) and (5f). General Hershey concluded, without further explanation, that "based on the information in this Hammond's file, it is my opinion that Charles A. Hammond would not be classified as a conscientious objector if he were being considered for induction by the Selective Service System at this time." Lenfest was duly notified that "in view of the foregoing General Hershey's statement Hammond's request for discharge by reason of conscientious objection is disapproved." On May 21, 1967, Lenfest reminded Hammond of his continuing duty to attend drills as required by his reserve obligation. Hammond refused and was ordered to report for two years' active duty on August 31, 1967.

Instead of commencing service, however, Hammond petitioned the District Court for Connecticut for a writ of habeas corpus and one week before he was to report for active duty, Judge Zampano issued a show cause order that directed, inter alia, that Hammond "remain in and not be removed from this district until further order of this court."⁵ Hammond's basic contention in the court below was that the rejection of his request for a discharge was contrary to the provisions of DOD No. 1300.6 and BUPERS 1616.6 in that the denial of his conscientious objector status was without basis in fact, and that the decision was violative of the due process and equal protection clauses of the Constitution.⁶ The District Court found it unnecessary to evaluate these contentions: it questioned its jurisdiction, citing Orloff v. Willoughby, 345 U.S. 83, 93-94, 73 S.Ct. 534, 97 L.Ed. 842 (1953), and Brown v. McNamara, supra,⁷ and decided that Hammond had failed to exhaust his available administrative and military remedies, citing Noyd v. McNamara, 267 F.Supp. 701 (D.Colo.), aff'd, 378 F.2d 538 (10th Cir.), cert. denied, 389 U.S. 1022, 88 S.Ct. 593, 19 L.Ed.2d 667 (1967). On this appeal, the government urges an additional ground for affirmance — that Hammond is not "in custody" within the meaning of the federal habeas corpus statute, 28 U.S.C. § 2241.

II.

Before proceeding to our discussion of the issues, we wish to make clear that we are aware of the lessons of both history and precedent — that "judges are not given the task of running the Army * * *. The military constitutes a specialized community governed by a separate discipline from that of the civilian. Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters." Orloff v. Willoughby, supra, 345 U.S. at 93-94, 73 S.Ct. at 540. Judicial hesitancy when faced with matters touching on military affairs is hardly surprising in view of the doctrine of separation of powers and the responsibility for national defense which the Constitution, Art. I, § 8, cl. 1 and Art. II, § 2, places upon the Congress and the President....