Krieger v. Terry
| Decision Date | 16 May 1969 |
| Docket Number | Civ. No. 2966. |
| Citation | 300 F. Supp. 242 |
| Parties | In the Matter of the Petition of David M. Krieger for a Writ of Habeas Corpus. David M. KRIEGER, Petitioner, v. Brig. Gen. James TERRY, U.S.A., Commanding General, 29th Infantry Brigade, Schofield Barracks, Oahu, Hawaii; Col. James Currie, Executive Officer, 29th Infantry Brigade; and Stanley Resor, Secretary of the Army, Respondents. |
| Court | U.S. District Court — District of Hawaii |
Greenstein & Cowan, by Brook Hart, Honolulu, Hawaii, for petitioner.
Brig. Gen. James Terry, USA, Col. James Currie, and Stanley Resor, Yoshimi Hayashi, U. S. Atty., District of Hawaii, by Michael R. Sherwood, Asst. U. S. Atty., Honolulu, Hawaii, for respondents.
DECISION
The above matter having come on regularly for hearing on the 9th day of May, 1969, and continued over to the 13th day of May, 1969, and oral arguments having been heard in support of the memorandums previously filed herein, and the Court being fully advised in the law and the premises.
It is hereby adjudged that the petition for Writ of Habeas Corpus heretofore filed herein, should be dismissed and the Restraining Order heretofore issued out of this Court should be vacated, except as such Restraining Order is temporarily extended, as hereinafter set forth.
The Court finds the following facts:
On June 16, 1964, petitioner voluntarily enlisted in the United States Army Reserves. He served in the Army Reserves as an enlisted man until June 22, 1967. During this period he voluntarily attended the Hawaii Army National Guard Officer Candidate School, and graduated from this school as valedictorian of his class.
On June 23, 1967, petitioner was commissioned in the United States Army Reserves as a 2nd Lieutenant, Infantry. He served as an Infantry Officer from the date of his commission until June 1, 1968, and ever since.
On June 1, 1968, petitioner was ordered to active duty in the United States Army.
On November 8, 1968, petitioner filed an application for conscientious objector status and for discharge from the Army due to his conscientious objection.
On November 12, 1968, Captain Thomas S. Hyun, Jr., the Commanding Officer of petitioner's company, recommended disapproval of petitioner's application. Captain Hyun's recommendation is attached to petitioner's petition as Exhibit D-1. Subsequent to Captain Hyun's recommendation, petitioner requested an interview with Captain Hyun, and pursuant to this request Captain Hyun interviewed and talked with petitioner concerning the reasons for Captain Hyun's recommendation. See affidavit of Captain Hyun, attached to Respondent's Memorandum as Exhibit 1, and incorporated herein by reference.
On November 13, 1968, Lt. Colonel Tokairin, acting through his Adjutant, Captain David A. Ferguson, recommended disapproval of petitioner's application. This recommendation of disapproval is attached to petitioner's petition as Exhibit D-2. Lt. Colonel Tokairin read petitioner's application and the letters of reference in support thereof in reaching his decision. See affidavit of Captain David A. Ferguson, attached as Exhibit 2 to Respondent's Memorandum, and incorporated herein by reference.
On November 25, 1968, petitioner was interviewed by Chaplain Kiyoichi Itokazu, assistant brigade chaplain, pursuant to Army Regulations 635-20(4) (c). Chaplain Itokazu recommended approval of petitioner's application. This recommendation is attached to petitioner's petition as Exhibit D-8.
On December 2, 1968, again pursuant to AR 635-20(4) (c), petitioner was examined by a psychiatrist, Lt. Col. Robert L. Pettera, Commander, United States Army Medical Service Activities, Hawaii; Chief of Mental Hygiene. Lt. Col. Pettera's report is appended to petitioner's petition as Exhibit D-6.
On December 3, 1968, Brigadier General Shaefer, Commanding Officer of the 29th Infantry Brigade, acting through his Adjutant General, Major Yukio Takeya, recommended disapproval of petitioner's application. This recommendation is attached to petitioner's petition as Exhibit D-3.
On December 6, 1968, petitioner appeared before Captain William M. Connor, Jr., who, pursuant to AR 635-20(4) (d), was "an officer in the grade of 0-3, or higher, who is knowledgeable in policies and procedures relating to conscientious objector matters." Also pursuant to that section, petitioner's civilian counsel was present during petitioner's appearance. Based upon the results of that interview, on his personal study of petitioner's application for conscientious objector status, including the letters of reference attached thereto, on his study of the regulations and legal rulings pertinent to conscientious objector matters, and also apparently upon some "other inquiry into the merits of the application," see AR 635-20(4) (d) (1), consisting of interviews of two of petitioner's fellow O.C.S. students, Captain Connor recommended disapproval of petitioner's application. Captain Connor entered his recommendations and the reasons therefor into the file as required by AR 635-20(4) (d) (1). Captain Connor's recommendation, and the reasons therefor, are appended to petitioner's petition as Exhibit D-5.
On December 10, 1968, General Lassiter, Commanding General, Headquarters, United States Army, Hawaii, acting through his Adjutant General, Colonel William H. James, recommended disapproval of petitioner's application, and set forth the reasons for such recommendation. This recommendation and the reasons therefor are appended to petitioner's petition as Exhibit D-4. General Lassiter's recommendation was based upon the recommendation of Colonel James, which in turn was based upon a consideration of petitioner's application, including all the letters of reference attached thereto, the psychiatric evaluation by Colonel Pettera, the report of the interview by Captain Connor, and the report of the interview by Chaplain Itokazu. See affidavit of Colonel William M. James, attached as Exhibit 3 to Respondent's Memorandum, and incorporated herein by reference.
On December 11, 1968, General Ralph E. Haynes, Commander-in-Chief, United States Army Pacific, acting through his Deputy Adjutant General, Colonel John F. Dunn, by Lt. Col. Charles E. Zimmer, recommended disapproval of petitioner's application. This recommendation is appended to petitioner's petition as Exhibit D-7. Lt. Col. Zimmer read and considered petitioner's application and the supporting letters of reference attached thereto, in addition to the series of preceding recommendations and comments, in arriving at his recommendation for the General. No reasons were given for the recommendation in order to avoid redundancy, since the reasons were essentially the same as those of the Commanding General of Headquarters United States Army, Hawaii, as signed by Colonel James. See affidavit of Lt. Col. Zimmer, attached as Exhibit 4 to Respondent's Memorandum, and incorporated herein by reference.
On January 17, 1969, pursuant to Department of Defense Directive No. 1300.6 (IV) (D) (3) (c) (2), (attached to petitioner's petition as Exhibit B), the Adjutant General, United States Army, requested an advisory opinion from the Director of Selective Service as to what the proper classification of petitioner would be under the Military Selective Service Act of 1967. Attached to this letter of request was petitioner's application, including the letters of reference attached thereto, and the various recommendations and reports of interviews mentioned above. This letter is attached to Respondent's Memorandum as Exhibit 5 and is hereby incorporated by reference.
On January 28, 1969, the Director of Selective Service, Lewis B. Hershey, responded to the request of the Adjutant General by advising that, based upon the information contained in petitioner's file, "it is my opinion that 2nd Lt. David M. Krieger would not be classified as a conscientious objector if he were being considered for induction at this time." This letter from the Director of Selective Service is attached...
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Krieger v. Terry
...to 32 C.F.R. § 581.3, to overturn the denial of his conscientious objector claim. Following argument, the district court, on May 15, 1969, 300 F.Supp. 242, entered an order dismissing the habeas corpus application without prejudice and vacating the restraining order. However, the court gran......