Hollingsworth v. Balcom

• Decision Date: 14 April 1971
• Docket Number: No. 20650.,20650.
• Citation: 441 F.2d 419
• Parties: William David HOLLINGSWORTH, Petitioner-Appellant, v. Lieutenant Commander R. E. BALCOM, Captain F. M. Symons, John H. Chafee, Secretary of the Navy, Melvin Laird, Secretary of Defense, Respondents-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

441 F.2d 419 (1971)

William David HOLLINGSWORTH, Petitioner-Appellant, v. Lieutenant Commander R. E. BALCOM, Captain F. M. Symons, John H. Chafee, Secretary of the Navy, Melvin Laird, Secretary of Defense, Respondents-Appellees.

No. 20650.

United States Court of Appeals, Sixth Circuit.

April 14, 1971.

Thomas F. Waldron, Cincinnati, Ohio, for petitioner-appellant.

Byron E. Trapp, Asst. U. S. Atty., Cincinnati, Ohio, for respondents-appellees; William W. Milligan, U. S. Atty., Norbert A. Nadel, First Asst. U. S. Atty., Cincinnati, Ohio, on brief.

Before PHILLIPS, Chief Judge, and WEICK and MILLER, Circuit Judges.

WILLIAM E. MILLER, Circuit Judge.

This appeal arises from the denial of a writ of habeas corpus sought after appellant's application for discharge from the United States Navy Reserve as a conscientious objector was rejected by the Navy. Appellee Balcom is the commanding officer of the Naval and Marine Corps Reserve Training Center in Cincinnati, Ohio, to which appellant is attached. Appellee Symons is the commanding officer of the Naval Training Center at Great Lakes, Illinois, to which appellant has been ordered for active duty. Appellant filed his application in December, 1969, at which time he was under orders to report for active duty. The administrative procedures were completed by June 24, 1970, when appellant was advised that his application for discharge had been denied. A petition for a writ of habeas corpus was filed in the court below on July 1, 1970, alleging three basic grounds for relief: (1) that the Navy violated its own regulations, thus denying appellant due process of law; (2) that incorrect legal standards were applied in reviewing appellant's application; and (3) that there was no basis in fact for the denial of the discharge. After a hearing, the District Court denied the writ on July 21, 1970, and this appeal followed.

I.

Appellant enlisted in the naval reserves in 1965 under a contract obligating him to two years of active duty and four years in the reserves. Due to college deferments and one medical delay he had not begun to serve his active duty as of December, 1969. In April, 1969, he requested and received a transfer of his reserve station to Cincinnati, Ohio. His service record reflects that he missed several drills in Cincinnati, and after he failed to respond to two letters advising him of his unsatisfactory performance, he was ordered on December 1, 1969, to report for active duty as of December 22, 1969. On that date he appeared at the office of his commanding officer, Lieutenant Commander Balcom, and reported his intention to seek a discharge as a conscientious objector. He was then advised of the pertinent regulations governing in-service discharges and the procedures he would have to follow.¹

The appellant returned the completed application along with supporting affidavits on December 19, 1969. He was later interviewed by two Air Force psychiatrists and by a chaplain in accordance with the regulations, and on February 20, 1970, by his commanding officer as an officer of grade 0-3 or higher. Lieutenant Commander Balcom forwarded the application to the Fourth Naval District with the recommendation of a discharge for the "convenience of the Government." The commandant of the Fourth Naval District reviewed the file and forwarded it to the Chief of Naval Personnel, advising against the discharge with the comment, "the petition lacks substantiation from the recognized religious community to support his conscientious objector claims. Therefore it is considered that appellant is attempting to avoid fulfillment of his obligated service." The Chief of Naval Personnel submitted the application to a conscientious director review board which recommended that the discharge be denied on the ground that the application and the reports raised a doubt that he was motivated by sincerely held religious convictions. The Chief of Naval Personnel notified appellant of the finding of the review board and advised him that his application was disapproved.

The District Court found that naval regulations had been followed in all but one respect as to which appellant had waived his objections; that correct standards were applied to appellant's application; and that there was a basis in fact for the denial of the discharge. Appellant challenges all three findings.

The substance of the basis in fact test was recently reviewed in a similar case by a panel of this Court, see Bohnert v. Faulkner, 438 F.2d 747 (6th Cir. 1971). While the record in this case may cast doubt on the finding below of a basis in fact, our disposition of the appeal makes it unnecessary to reach that question here. Rather, we turn to a review of appellant's argument that he was denied due process of law in that the Navy violated its own regulations in handling his appeal.

The regulations provide that an applicant be afforded a personal interview, with counsel retained by him if he so chooses, before an officer of grade O-3 or higher "knowledgeable in policies and procedures relating to conscientious objector matters." DoD 1300.6 ¶ VIB4. Appellant asserts that the right to appear with counsel and the right to an officer knowledgeable in conscientious objector matters were denied to him in this case. Such denial, he asserts, constitutes a denial of due process of law.

II.

Initially we note that while courts are reluctant to review discretionary actions of military agencies, we have held that such reluctance is not meant to imply that actions of military authorities taken in violation of their own rules and regulations are not subject to judicial review. Schatten v. United States, 419 F.2d 187 (6th Cir. 1969). Courts have regularly insisted that when an administrative agency, including a branch of the armed services, has established rules and regulations for its own internal procedures, these rules and regulations cannot then be ignored by them even in the exercise of discretionary authority. See Smith v. Resor, 406 F.2d 141, 145 (2d Cir. 1969); Schatten v. United States, supra, 419 F. 2d at 191; Hammond v. Lenfest, 398 F.2d 705, 710 (2d Cir. 1968).

The doctrine that an administrative agency must adhere to its own rules and regulations was announced by the Supreme Court in United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954). In that case, the failure of the Board of Immigration and the Department of Justice to abide by their own regulations in a deportation proceeding, was held to be a denial of due process of law and resulted in the vacation of a deportation order. In a more recent case, the Supreme Court followed Accardi in reversing a conviction for contempt of Congress on the ground that the defendant, who had been subpoenaed by the House Un-American Activities Committee, was improperly denied the right to appear at an executive session of the Committee. Yellin v. United States, 374 U.S. 109, 83 S.Ct. 1828, 10 L.Ed.2d 778 (1963). In Yellin, the defendant had been denied a request to appear at an executive session in accordance with HUAC rules by a staff director who had no authority to deny the request. Defendant refused to answer questions at a public hearing and was subsequently convicted of contempt of Congress. The Supreme Court noted that this was a case of an agency failing to exercise its authority according to the self-established rules which a party called before it had a right to have considered. The witness, it was said, "should at least have the chance given him by the regulations." 374 U.S. at 121, 83 S.Ct. at 1836.

This principle has been applied in cases involving conscientious objectors arising from both the Selective Service System and the armed forces by way of in-service discharges. See Gonzales v. United States, 348 U.S. 407, 75 S.Ct. 409, 99 L.Ed. 467 (1955); Simmons v. United States, 348 U.S. 397, 75 S.Ct. 397, 99 L.Ed. 453 (1955); United States v. Nugent, 346 U.S. 1, 73 S.Ct. 991, 97 L.Ed. 1417 (1953); United States v. Cabbage, 430 F.2d 1037 (6th Cir. 1970); Schatten v. United States, 419 F.2d 187 (6th Cir. 1969); United States ex rel. Brooks v. Clifford, 409 F.2d 700 (4th Cir. 1969); Hammond v. Lenfest, 398 F.2d 705 (2d Cir. 1968). Although these cases deal with different aspects of the Selective Service and Defense Department procedures, they may all be cited for the proposition that administrative rules and regulations must be followed in order to comply with the requirement of basic fairness implicit in the concept of due process of law. Cf. Simmons v. United States, 348 U.S. 397, 405, 75 S.Ct. 397, 812 (1955). As was said recently in a different context:

These cases are consistent with the Accardi doctrine\'s purpose to prevent the arbitrariness which is inherently characteristic of an agency\'s violation of its own procedures. As the Second Circuit said in Hammond v. Lenfest 398 F.2d 705, cited with approval in United States ex rel. Brooks v. Clifford 409 F.2d 700 departures from an agency\'s procedures "cannot be reconciled with the fundamental principle that ours is a government of laws, not men." United States v. Heffner, 420 F.2d 809, 812 (4th Cir. 1969).

III.

We turn to a consideration of the evidence before the District Court concerning the 0-3 interview. According to Lieutenant Commander Balcom, he conducted an interview with appellant on December 1, 1969, at which time he went over the requirements of the conscientious objector application by reading with the appellant, in the presence of an enlisted man, the relevant regulations and explaining the requirements to him. This testimony is not in contention. The disputed 0-3 interview occurred on February 20, 1970. Appellant testified that he was called by telephone and told that the captain wanted to see him, but that he was not notified that this was to be the 0-3 hearing or that he could bring his attorney to this session. He testified that the only discussion of the...