Miller v. Secretary of Defense

• Decision Date: 22 December 1972
• Docket Number: No. SA-71-CA-132.,SA-71-CA-132.
• Citation: 352 F. Supp. 1037
• Parties: Major William L. MILLER, Jr. v. SECRETARY OF DEFENSE, Melvin Laird, et al.
• Court: U.S. District Court — Western District of Texas

352 F. Supp. 1037

Major William L. MILLER, Jr. v. SECRETARY OF DEFENSE, Melvin Laird, et al.

No. SA-71-CA-132.

United States District Court, W. D. Texas, San Antonio Division.

September 3, 1971.

Supplemental Opinion December 22, 1972.

Gerald H. Goldstein, Levey & Goldstein, San Antonio, Tex., for petitioner.

William S. Sessions, U. S. Atty., Henry Valdespino, Asst. U. S. Atty., San Antonio, Tex., for respondents.

MEMORANDUM OF DECISION

SUTTLE, District Judge.

On the 27th day of August, 1971, came on for final hearing the above styled and numbered cause, and the Court, having considered the pleadings, memoranda of authorities, comments of counsel, and evidence adduced at both this and the hearing on jurisdiction June 30, 1971, finds and rules as follows:

I

Since graduation from the United States Military Academy, West Point, N. Y., in 1962, petitioner has served as a commissioned officer in the United States Army, including one tour in Vietnam. On March 5, 1969, he was assigned to the Fifth Army Student Detachment, Ft. Sheridan, Ill., for graduate study in social psychology at the University of Missouri, which was his "duty station." On September 30, 1970, while attending the University of Missouri, petitioner tendered his resignation from the Army, stating as his reason therefor that

". . . I can no longer allow myself to be placed in the situation where it becomes necessary for me to send other men to their deaths or to plan the destruction of other human beings."

By letter of December 14, 1970, petitioner was notified that his resignation was "not favorably considered," and on January 5, 1971, he was ordered to Vietnam, with a reporting date of March 2, 1971. On January 11, 1971, petitioner filed his Application for Discharge as a Conscientious Objector with the Commanding General, Ft. Sheridan, pursuant to Army Regulation 635-20.

At the request of Headquarters, Fifth Army, to avoid the expense and inconvenience of returning him to Ft. Sheridan, Ill., petitioner was "attached" to Headquarters, Ft. Leavenworth, Kan., February 8, 1971, for "counseling required . . . and appearance before an officer knowledgeable in policies and procedures relating to Conscientious Objector Matters as required by AR 635-20."¹ Following these procedures, petitioner's file was returned to Fifth Army Headquarters, Ft. Sheridan, Ill., February 12, 1971, for further processing, but petitioner remained attached to Ft. Leavenworth pending final determination of his application.

On March 9, 1971, as part of a merger of the Headquarters of the Fifth and Fourth Armies completed June 30, 1971, petitioner was transferred to the Fourth Army Student Detachment, Ft. Sam Houston, Tex. The Conscientious Objector Review Board disapproved petitioner's application on March 29, and his file was sent to Headquarters, Fourth Army, on April 7, 1971. On April 10 Fourth Army Headquarters amended petitioner's Vietnam orders to provide for a new reporting date of April 23, 1971. On April 19, 1971, petitioner filed for Habeas Corpus in the United States District Court for the Western District of Missouri, seeking review of the Army's denial of his application. The Petition was dismissed without prejudice the next day pursuant to the opinion in Schlanger v. Seamans, 401 U.S. 487, 91 S.Ct. 995, 28 L.Ed.2d 251 (1971).² Upon petitioner's request, Fourth Army Headquarters, Ft. Sam Houston, Tex., again amended his Vietnam orders on April 23, 1971, to provide a reporting date of May 1, 1971. On April 27, petitioner "signed out" at Ft. Leavenworth, Kan., where he was still attached, and on April 28 filed the instant petition.

II

The above facts are a necessary background for respondents' contentions in and this Court's denial of their Motion to Dismiss. It is clear that at least until April 27, 1971, petitioner, while "attached" to Ft. Leavenworth, Kan., was "assigned" to the Fourth Army Student Detachment, Ft. Sam Houston, Tex., and that respondent Lt. Gen. Underwood, Commanding Officer, Fourth United States Army, a resident of this district, had custody and control of petitioner. Respondents, however, point to Army Regulations which indicate that when petitioner "signed out" on the Personal Register at Ft. Leavenworth, where he was "attached,"³ citing as authority his orders for Vietnam, and this was used in preparing the "Morning Report,"⁴ he effected a "Permanent Change of Station"⁵ and left the "accountable strength" of the Fourth Army, Ft. Sam Houston, Tex.,⁶ reverting to a transient personnel status, accountable directly to Headquarters, Department of the Army, Washington, D. C.⁷ Thus, respondents contend, as of the Morning Report of April 28, 1971, regardless of when it was prepared, petitioner was no longer in "custody" of the Commanding Officer, Fourth Army, Ft. Sam Houston, Tex., but only the Department of Army, Washington, D. C. They rely on Schlanger to support the proposition that petitioner has thus again filed his Petition in a District in which no custodian was located.

The Court finds, however, that the regulations relied upon by respondents are internal bookkeeping procedures of the Army governing their computation of changes in strength accountability, and cannot be considered determinative of this Court's jurisdiction under 28 U.S.C. § 2241.⁸ Here, like in Schlanger, petitioner was at a duty station outside the District in which his assigned unit, and hence his "custodian" or Commanding Officer, was located. Like Schlanger, petitioner first filed in the District in which he was stationed, with like result. Following the implicit mandate of the opinion in Schlanger, petitioner left his "attached" unit, using the only authority he had, and proceeded to file the instant Petition in the District in which his assigned unit was located. This unit, through its Commanding Officer, had been exercising control over petitioner since his transfer there on March 9, 1971, and had possession and custody of his file and papers relevant to his Petition.⁹ The Commanding Officer of Fourth Army, Ft. Sam Houston, Tex., did not cease to be petitioner's "custodian" for the purpose of federal Habeas Corpus jurisdiction simply because of petitioner's seeking to invoke that jurisdiction and the paper allocation of "accountable strength" dictated by the most recent Army Regulations. While there may also be a custodian in petitioner's chain of command in Washington, D. C., sufficient to invoke the jurisdiction of that court,¹⁰ there is, and was on April 28, 1971, Army Regulations notwithstanding, a "custodian" within the territorial jurisdiction of this Court in the person of respondent Lt. Gen. Underwood, Commanding Officer, Fourth United States Army, Ft. Sam Houston, Tex.¹¹

III

Petitioner's Application concisely (respondents claim too briefly) states his belief as follows:

I have come to the point where I base my whole life on the faith that only through love—genuine love of humanity and life—can mankind live in peace. This peace cannot be established through the power and might of the gun, but only through gentleness, consideration, and love.¹²

Petitioner can thus "no longer participate in war of any form." This belief is based upon parental training in the teachings of Christ, formal training in Methodist church school, and personal study of religious, philosophical, and other writings. The Application further traces the development and ultimate crystallization of his beliefs through his educational and military experience.

The interviewing chaplain, Maj. Wittenburg, found petitioner "sincere in his desire to be discharged as a Conscientious Objector" and that "the source of his religious beliefs seem to stem from his christian sic training in the Methodist church and extensive reading in other religious philosophies." He further found that petitioner "has searched deeply into his own motives and ethical principles," is "very uncomfortable in this situation, but is firmly convinced that it is the only way he can respond to his feelings." The interviewing psychiatrist found no disorder. The hearing officer, Col. Cortner, found that petitioner "was very sincere during the interview and obviously has acquired some strong feelings during his association with the academic climate." He recommended disapproval, however, listing as "considerations weighing against letting Major Miller out at this time" the following:

First is his obligation to the Army. Second is the fact that the Army can use his expertise gained in graduate school in Vietnam now. And finally the suddenness of Major Miller's decision to become a conscientious objector makes it extremely difficult for me to believe that is the sole reason for his decision to get out of the Army.

Col. Cortner also noted that "the Army is about to undergo a reduction in force and it would appear appropriate to let Major Miller resign instead of forcing someone out who wants to stay." Majs. Kroll and Caldwell, of the Ft. Sheridan Adjutant General Corps both recommended disapproval citing Col. Cortner's comments.

The Conscientious Objector Review Board disapproved petitioner's Application for Discharge, finding that "applicant lacks the requisite depth of conviction to qualify for discharge as a conscientious objector." While recognizing that the first two reasons given by Col. Cortner "are invalid to deny an otherwise sincere conscientious objector," the Board credited the third reason and further relied upon the "brevity" of the application, the absence of any letters of recommendation, petitioner's initial request for resignation instead of discharge as a conscientious objector, and their view that the chaplain's statement was "less than complete support of the application."

IV

As is apparent from the foregoing, petitioner has presented, through his Application, a prima facie case of conscientious objection to war in any form based upon religious training and belief.¹³ He clearly and concisely...