LEWINE v. Laird, 71-2487-EC.

• Decision Date: 24 November 1971
• Docket Number: No. 71-2487-EC.,71-2487-EC.
• Citation: 336 F. Supp. 346
• Court: U.S. District Court — Central District of California
• Parties: In the Matter of Sgt. Gerald L. LEWINE, #XXX-XX-XXXX, Petitioner, v. Melvin LAIRD, Secretary of Defense, et al., Respondents.

336 F. Supp. 346

In the Matter of Sgt. Gerald L. LEWINE, #XXX-XX-XXXX, Petitioner, v. Melvin LAIRD, Secretary of Defense, et al., Respondents.

No. 71-2487-EC.

United States District Court, C. D. California.

November 24, 1971.

Kenneth Cloke, Hollywood, Cal., for petitioner.

Robert L. Meyer, U. S. Atty., Frederick M. Brosio, Jr., and John L. Guth, Asst. U. S. Attys., Los Angeles, Cal., for respondents.

MEMORANDUM AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

CRARY, District Judge.

Petitioner is presently on active duty in the United States Air Force on a four-year enlistment which commenced April 11, 1969. On October 15, 1971, he filed a petition for Writ of Habeas Corpus to effect his discharge from the Air Force on the grounds he is a conscientious objector. This Court has jurisdiction under the provisions of 28 U.S.C. § 2241. The petitioner and his immediate commander are within the territorial jurisdiction of this Court.

Following basic training at Lackland Air Force Base, Texas, he was assigned to Vandenberg Air Force Base in June, 1969. Thereafter, on November 18, 1969, petitioner applied for and received permission to attend the University of Pittsburgh on a permissive temporary duty status during the period January 6, 1970, to April 17, 1970. His application for University study was made pursuant to "Operation Bootstrap", a program under which petitioner could attend college full time while drawing his military pay and allowances, on his agreement that he would serve three days in the military for each day on temporary duty at the University, following the completion of that temporary duty. Such obligated service was to run concurrently with his enlistment obligation.

Following this schooling, petitioner returned to duty at Vandenberg where, on May 21, 1970, he again sought and secured permission to attend the University of Pittsburgh to complete his course of education and obtain his degree. Upon the same agreement and conditions above recited, petitioner again attended the University from September 3 to December 24, 1970, and from January 4 to April 17, 1971. During the vacation break, petitioner remained on temporary duty status.

During his last semester and commencing in February, 1971, petitioner prepared his application for discharge as a conscientious objector and gathered a number of letters and statements of relatives and friends to support his application. The earliest dated letter was March 5, 1971.

The petitioner testified at the Order to Show Cause hearing that his views as a conscientious objector started to crystallize after he entered the military service and before he went to the University of Pittsburgh in January, 1970, and that he made his decision to seek a discharge after returning to the University the second time and in February, 1971. It is to be noted that he continued his schooling at the expense of the Government, and under the express agreement that he would give three days military service for each day in school on temporary duty, for a period of approximately two months after he asserts he became a conscientious objector and until he finished college and received his degree on or about April 17, 1971. He filed his application for discharge on April 20, 1971.

The beliefs required, as a matter of law and regulations, to establish one as a conscientious objector are common knowledge, particularly among those contemplating applying for conscientious objector status. Every young man, in or out of the Armed Forces, has every right to familiarize himself with the various conditions, beliefs, and so forth, which disqualify him for military service or avoid the necessity of his performing such service. It is not difficult to make the necessary allegations to state a prima facie case of conscientious objection. If a prima facie case is made by an applicant, then the test of sincerity and sufficiency of the record is considered by the authorities involved, in this case by the Air Force. When the alleged beliefs are asserted to be short-lived and after one is in the military service, as in the instant case, they bear more rigid scrutiny than when it appears the conscientious objection is based on long-standing religious training and beliefs.

Pursuant to the provisions of Air Force Regulation (AFR) 35-24, the regulation governing inservice conscientious objector applications, petitioner was interviewed by the Vandenberg Air Force Base installation Chaplain on May 6, 1971. Page 10, Transcript of Administrative Record.

The Chaplain states the petitioner "* * * arrived at his position over a period of years, including his years in the military." and that he has more confidence in the sincerity of a position so reached. The Chaplain goes on to say he is satisfied with petitioner's candor and sincerity and that he "strongly" recommends favorable consideration to petitioner's request.

It appears from the record that the Chaplain is in error in his conclusion that petitioner arrived at his position over any period beyond his enlistment. The petitioner's statement, appearing on page 9 of the Transcript of Administrative Record, states that he did not apply for conscientious objector status before entering on active duty "because I simply was not a conscientious objector at that time." He goes on to say that "This is due to the fact that, at that time, my moral and ethical objections to war and killing had not yet surfaced, let alone developed. Prior to my enlistment, there were few things further from my mind." Petitioner further states, with regard to the development of his conscientious objection: "I remember quite well how I felt when I received my draft notice. My little dream world fell apart. But in a way, I welcomed the challenge. My grades were poor and I was tired of my job. After a quick consultation with the Air Force recruiter and my fiancee, I enlisted in the Air Force. Though I hated every minute of basic training, that was the point at which I began to change." Pg. 19, Tr. of Adm.R.

In reply to paragraph 4.c of his application, petitioner says: "As previously explained, I have arrived at my convictions myself through my personal experiences and discussions with numerous persons. I rely solely upon myself and my conscience for matters relating to my convictions." Pg. 21, Tr. of Adm.R.

The O-3 Officer (Hearing Officer) interviewed the petitioner on May 28, 1971, as required by the regulations. In his report dated June 1, 1971 (pp. 7-8, Tr.Adm.R.), he observes that he concludes the petitioner is sincere regarding his objections to war and killing and his personal inability to participate in violence. The Hearing Officer goes on to say in his report: "Although I do not question Sgt. Lewine's sincerity regarding his personal participation in violence, I am not convinced this same sincerity applies to his inability to work as a noncombatant. Reference paragraph 4.d of his information sheet submitted IAW Atch 1, AFR 35-24. Sgt. Lewine admits there are occasions when violence is necessary although he would not personally engage in violence. Also, during my hearing with Sgt. Lewine I questioned him on this point. When I reminded him of this statement in his application, he acknowledged he had made it and stated that that might be all right for someone else but he personally could not participate in violence." Emphasis added. It is to be noted that on May 28, 1971, a matter of months following the alleged crystallization of his conscientious objection, the petitioner states that violence might be all right for someone else but that he personally could not participate in violence.

The petitioner's Commanding Officer, after three interviews with petitioner following his return from the University, reported his concurrence with the views of the Hearing Officer and recommended disapproval of the application. Page 4, Tr.Adm.R.

The Commanding General concluded from the record that petitioner's claim as a conscientious objector "* * * is based on a personal dissatisfaction with his military duties and a set of standards tailored to his own liking." He concurred in the recommendation of the Commanding Officer and Hearing Officer that Sgt. Lewine's application for discharge be denied. P. 5, Tr.Adm.R.

Major Broschat, Directorate of Personnel Program Actions, acting for the Chief of Staff of the Air Force, states in his report that the petitioner's application is not favorably considered, "Since Sergeant Lewine failed to provide adequate documentary information to establish that he is opposed to all wars, when his views were fixed, or that his beliefs were so intense as to give him no rest or peace of mind as long as he remains in the Air Force." (Page 3, Tr.Adm.R.

The issue before the Court is whether there is a basis in fact for the determination that petitioner was not sincere in his claim that he is a conscientious objector. One reason for insincerity urged by the Government is that petitioner is insincere in his contention that he is opposed to noncombatant service. If so, he is not a conscientious objector because Section 1622.14 of Title 32, C.F.R., provides:

"In Class 1-O shall be placed every registrant who would have been classified in Class 1-A but for the fact that he has been found, by reason of religious training and belief, to be conscientiously opposed to participation in war in any form and to be conscientiously opposed to participation in both combatant and noncombatant training and service in the armed forces." Emphasis added.

The petitioner relies on the case of Silberberg v. Willis, 420 F.2d 662 (1 C.A.1970), as supporting his position. In that case, the Court of Appeals observes, at page 664, in referring to the District Court's ruling:

"The court held that the record contained no basis for questioning his sincerity, and `no substantial evidence supporting the military determination that petitioner was not, within the meaning of the Army's own

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