Kern v. Laird, Civ. A. No. C-3382.

• Decision Date: 23 November 1971
• Docket Number: Civ. A. No. C-3382.
• Citation: 335 F. Supp. 824
• Parties: Application of PFC. Michael Woodrow KERN, Petitioner, v. Honorable Melvin LAIRD, Secretary of Defense, et al., Respondents.
• Court: U.S. District Court — District of Colorado

335 F. Supp. 824

Application of PFC. Michael Woodrow KERN, Petitioner, v. Honorable Melvin LAIRD, Secretary of Defense, et al., Respondents.

Civ. A. No. C-3382.

United States District Court, D. Colorado.

November 23, 1971.

COPYRIGHT MATERIAL OMITTED

Rudolph Schware, Denver, Colo., for petitioner.

James L. Treece, U. S. Atty., Denver, Colo., for respondents.

MEMORANDUM OPINION AND ORDER

ARRAJ, Chief Judge.

The petitioner is a member of the Army Reserves who was denied a discharge as a conscientious objector by the Army's Conscientious Objector Review Board (Review Board). He is now seeking a writ of habeas corpus from this court, claiming that there was no basis in fact for denying his application for discharge. The government has opposed issuance of the writ, claiming that this court has no jurisdiction to hear the petition, that Kern does not have standing to maintain this action, and that the decision to deny the application was supported by a basis in fact.

The claims of the government that jurisdiction and standing are absent were not elaborated either by argument or brief, and we must guess at their meeting. However, we can find no argument which would support the claims, and thus the writ cannot be denied on either basis. The only jurisdictional argument which we can deduce is that status as a member of the reserves is not sufficient to constitute being "in custody" as required by 28 U.S.C. § 2241. The evolving concept of custody has been dealt with at great length elsewhere, e. g., Donigian v. Laird, 308 F.Supp. 449, 451 (D.Md. 1969), and need not be detailed here. It is well established that a person in the military can bring an action seeking a writ of habeas corpus, e. g., Scaggs v. Larsen, 396 U.S. 1206, 90 S.Ct. 5, 24 L. Ed.2d 28 (1969) (Douglas, J., as Circuit Judge), and there is little doubt that a member of the reserves is also "in custody." Hammond v. Lenfest, 398 F.2d 705 (2d Cir. 1968); United States ex rel. Schonbrun v. Commanding Officer, 403 F.2d 371 (2d Cir. 1968), cert. denied, 394 U.S. 929, 89 S.Ct. 1195, 22 L.Ed.2d 460 (1969); Nason v. Secretary of Army, 304 F.Supp. 422 (D.Mass.1969); Barr v. Weise, 293 F.Supp. 7 (S.D.N.Y. 1968). Most courts hearing petitions from reservists have faced situations where the petitioner had been or was about to be ordered to report to active duty. E. g., Hammond v. Lenfest, supra. That situation is not present here, but to base our determination of jurisdiction on the fortuity of orders being issued would exalt form over substance. A member of the reserves is faced with a very real restriction on his liberty, even though that restriction is limited compared to the position of an active duty soldier. Nason v. Secretary of Army, supra. Moreover, the petitioner here claims that his conscientious objector beliefs developed after joining the reserves, and that the reserve training and meetings force him to make an increasingly unacceptable compromise of those beliefs. For him, his duties as a reservist appear to be a totally repugnant form of military service, which places a genuine restriction on the liberty of his conscience as well as that of his person. Consequently, to deny jurisdiction because Kern is not on active duty would be to completely ignore the realities of the situation he claims to exist. Similarly, any argument that assignment to active duty would be necessary to confer standing must fail. Kern is presently obliged to follow orders and to attend meetings, and his conscience is shackled as thoroughly as it would be on active duty. Since he has standing on the basis of his participation in reserve activities, and since we can think of no other arguments against finding either jurisdiction or standing present, we must turn to the merits.

As required by the applicable army regulations, Kern submitted a request for a conscientious objector discharge to his commanding officer, containing the requisite personal information, a statement of his convictions and beliefs, and a discussion of how those beliefs developed. He was raised in a Roman Catholic home, and as a youth took his religion fairly seriously. After leaving home he fell away from the church as a formal institution. At the time he registered for the draft as well as when he enlisted in the reserves he felt that every male citizen had an obligation to serve in the military in some capacity. After enlistment, Kern developed a renewed interest in religion, and though he still feels no need for organized religion he professes a belief in a "Supreme Being" which abhors war. He was influenced in his development by news reports of the events in Vietnam and Biafra, but claims a repulsion to war in all forms.

After these beliefs had matured Kern realized that even his rather limited role in the military was a compromise of his convictions. He attempted to join the Peace Corps, but he was refused because of his military obligation, and he then sought a medical discharge which was denied. After these unsuccessful attempts he "found out" that he "still had the right to apply for conscientious objector status." Kern has stated that he will go to prison rather than continue in the military, but is trying to obtain a discharge because he "would like to do social work which would mean working for the government."

After the application for discharge, with the statements referred to above, had been submitted, Kern was interviewed by Major Yost, the hearing officer required by the regulations, by Lt. Erfurdt, his commanding officer, by Major Douglas and Major Greenburg, army chaplains, and by Dr. Rewey, a psychiatrist. Both chaplains found Kern to be sincere in his beliefs and to harbor an objection to military service "based upon participation in war in any form." Major Douglas observed that the objection was not based on "association with any formal religious organization" but upon "his belief that there is a God" who would disapprove of military service. Major Greenburg, in a long report, concluded that there was no basis for finding that Kern "had developed these beliefs as expedients for temporary, personal gains against any system, or to evade any further military obligations." Similarly, Dr. Rewey, the psychiatrist, found Kern to be sincere, and concurred with both chaplains in recommending discharge of the petitioner.

Major Yost and Lt. Erfurdt also interviewed Kern, and both recommended that the application for discharge be denied but that Kern be assigned to non-combat duty. Lt. Erfurdt found that Kern's "attitudes and answers indicated a sincerity toward his claim as a conscientious objector," but Erfurdt also stated that he felt sincerity could not be judged accurately in an interview. He found that Kern's beliefs "stem from his individual religious convictions" but are also "partially politically founded." Erfurdt concluded that he "suspects that Kern is using a conscientious objector application as another means of obtaining an easier way out of his military obligation." This suspicion was triggered by the fact that Kern explained his original enlistment in the reserves as an attempt to "dodge the draft." Major Yost never specifically stated whether he considered Kern sincere or not. Rather, his recommendation of disapproval seems to have been based solely on the fact that "PFC Kern has not had a history of religious upbringing which opposed war or violence." A finding of sincerity can be inferred, quite persuasively, from the fact that Yost recommended non-combat status for Kern because of his "strong personal beliefs against the actions often required of a combat organization."

This, then, is the record which went to the Review Board, along with two personal letters attesting to Kern's sincerity and perfunctory recommendations of disapproval by officers in the chain of command. The Review Board found that Kern's "alleged conscientious objector beliefs are not sincerely held," are not "grounded in religious training and belief," and were "based on consideration of policy, pragmatism, expediency, and objection to a particular war." There are in essence three grounds claimed by the Board as justifying their decision: the first is objection to a particular war, the second is insincerity, and the third is the absence of a basis in "religious training and belief." In support of its findings the Board referred to numerous items from the record, and because there are several grounds claimed for denial they must be examined separately.

As support for the conclusion that Kern was opposed only to the Vietnam war the Review Board cited his participation in three demonstrations against that war, the statements in his application of repulsion by the Vietnam...