Lovallo v. Resor, 919

• Decision Date: 24 May 1971
• Docket Number: Docket 71-1131.,No. 919,919
• Citation: 443 F.2d 1262
• Parties: Lee LOVALLO, Petitioner-Appellee, v. Stanley R. RESOR, Secretary of the Army, et al., Respondents-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

443 F.2d 1262 (1971)

Lee LOVALLO, Petitioner-Appellee, v. Stanley R. RESOR, Secretary of the Army, et al., Respondents-Appellants.

No. 919, Docket 71-1131.

United States Court of Appeals, Second Circuit.

Argued April 23, 1971.

Decided May 24, 1971.

Lloyd H. Baker, Asst. U. S. Atty., E. D. N. Y. (Edward R. Neaher, U. S. Atty., and David G. Trager, Asst. U. S. Atty., E. D. N. Y., on the brief), for appellants.

Frederick H. Cohn, New York City, for appellee.

Before FRIENDLY, ANDERSON and FEINBERG, Circuit Judges.

ANDERSON, Circuit Judge:

Lee Lovallo, an enlistee and specialist E4 in the United States Army, filed a petition in the district court for a writ of habeas corpus to effect his release from military service on the ground that he was a conscientious objector. This action followed a denial by the Army's Conscientious Objection Review Board of his application for a discharge from the Army which he had filed on September 18, 1970 on the same ground. The district court held that there was no objective evidence upon which the Department of the Army could have based its denial and granted the relief requested. The principal issue on appeal is whether there was any "basis in fact" for the Army's determination that petitioner's beliefs lacked the necessary sincerity.

At a time when Lovallo faced draft induction he admittedly looked for an easy way out and when his attempt to join the Peace Corps failed, he enlisted in the Army as a bandsman because he considered it better to carry an instrument than a weapon. In March of 1969 he was assigned to the 26th Army Band, Fort Wadsworth, Staten Island where he expected to remain throughout the period of his enlistment.¹ On August 5, 1970, however, he received notice that he was to be transferred to Korea. It was this order for reassignment and the circumstances which surrounded it that precipitated his application for discharge as a conscientious objector.

In the application petitioner stated, "My condemnation of killing is a religious conviction based upon both formal and derived religious beliefs." He recounted his life-long instructions as a Roman Catholic, his study of philosophy at a university, and the influence of fellow members of the Army band from which his "conscience assumed a new depth of commitment to beliefs that he had long before internalized" as the sources from which his convictions derived. Petitioner explained that his ideas concerning the sanctity of life and his repugnance to participation in military operations did not mature until he received his orders to Korea and that ultimately it was this scheduled transfer that effected the fruition of his beliefs in the form of his application for discharge as a conscientious objector.

Following prescribed procedures,² the petitioner was interviewed on September 21, 1970 by Lt. Col. Lenk, Staff Chaplain, who found Lovallo "sincere in his belief," but as the Catholic Chaplain he was troubled because in Lovallo's personal statement he made reference to the commandment "Thou shalt not kill" as the eighth instead of the fifth commandment, an error which, the Chaplain said one "versed in the Catholic faith would not make." The Chaplain added, "Then, too, after reading the case, it is my opinion that Specialist Lovallo is not a Conscientious Objector in the strict sense of the word. I believe that Specialist Lovallo is sincere in his belief but the source of his belief may be questionable." On September 24, 1970 the petitioner was given a psychiatric examination by Captain Phillips who found him to be a "sincere sounding young man,"³ "psychiatrically cleared for any administration sic action deemed appropriate by command." That same day Lt. Col. McDonough, a hearing officer familiar with the policies and procedures relating to conscientious objector matters,⁴ interviewed the petitioner and reported that he was "sincere in his convictions."

On the following day, September 25, 1970, Personnel Clerk Kase submitted a sworn statement which described petitioner's displeasure when he was informed that he had been included among those assigned to Korea.⁵ When Lovallo was first advised that he was about to be transferred, he indicated that reassignment would cause him no personal difficulties; but Kase said, "When I mentioned Korea his happy attitude changed completely. He got quite upset and he told me that he was informed by the company that he was going to Germany and I informed him that he was going to Korea and at no time was he ever on orders for Germany. He left my office in a very bitter and depressed mood."

To these reports petitioner's commanding officer, Chief Warrant Flores, added his recommendation that the application for discharge be denied. He based his recommendation upon two facts: first, that petitioner had not indicated his intention to apply for a discharge when he was asked on September 10th and 11th whether he would "clear post" on September 14, 1970, the date on which petitioner requested a seven-day delay of orders to compile his application; and second, that although petitioner reported that his beliefs "crystallized" on September 12, 1970, three letters supporting his application were written a day or two before that date. From this Flores concluded that Lovallo "chose to mislead the undersigned * * * as to his intentions. * * * Therefore I consider Sp. 4 Lovallo's sincerity and integrity questionable."

After reviewing the petitioner's file, Lt. Hall, Assistant Adjutant General at Fort Hamilton, recommended disapproval of the application and forwarded it on October 1, 1970, to the Army's Conscientious Objection Review Board. In an opinion dated November 9, 1970, the Board disapproved and rejected petitioner's application on the ground that Lovallo was not sincere. The Board placed great weight on the statement of Chief Warrant Flores; it also noted the report of Chaplain Lenk, and noted with interest the affidavit of Kase. The district court, however, found that none of the enumerated factual findings afforded a "basis in fact" for the Board's denial and granted the writ.

To be conscientiously opposed to participation in war implies by definition that the objector in fact entertains the belief to which he has given expression. United States v. Seeger, 380 U.S. 163, 185, 85 S.Ct. 850, 13 L. Ed.2d 733 (1965). Thus, although a claimant's statement may set forth a prima facie case for discharge, the military reviewing agency may determine that the...