Moore v. Connell

• Decision Date: 06 October 1970
• Docket Number: Civ. No. 70-967-N.
• Citation: 318 F. Supp. 884
• Parties: In the Matter of Thomas W. MOORE v. George W. CONNELL, Commanding Officer of Edgewood Arsenal, General Edward M. Graham, Commanding General of Munitions Command, General Ferdnand J. Chesarek, Material Command General United States Army Material Command, Stanley Resor, Secretary of the Army, and Melvin Laird, Secretary of Defense.
• Court: U.S. District Court — District of Maryland

318 F. Supp. 884

In the Matter of Thomas W. MOORE v. George W. CONNELL, Commanding Officer of Edgewood Arsenal, General Edward M. Graham, Commanding General of Munitions Command, General Ferdnand J. Chesarek, Material Command General United States Army Material Command, Stanley Resor, Secretary of the Army, and Melvin Laird, Secretary of Defense.

Civ. No. 70-967-N.

United States District Court, D. Maryland.

October 6, 1970.

William H. Zinman, Baltimore, Md., for petitioner.

George Beall, U. S. Atty., and Paul R. Kramer, Deputy U. S. Atty., for respondents.

MEMORANDUM AND ORDER

NORTHROP, Chief Judge.

Thomas W. Moore, a Second Lieutenant in the United States Army, currently stationed at the Edgewood Arsenal, Maryland, has petitioned this court for the issuance of a writ of habeas corpus. The purpose of this petition is to effect petitioner's discharge from the United States Army as a conscientious objector. The Army has disapproved his application for discharge.

The procedures for obtaining separation from military service based on a claim of conscientious objection are set forth in Department of Defense Directive 1300.6¹ and Army Regulation 635-20. These provide that a member of the armed forces who opposes war may apply for and is entitled to a discharge as a conscientious objector. AR 635-20 establishes the following procedure: the applicant is interviewed by a psychiatrist, a chaplain, and an officer in the grade of 0-3 (Captain) or higher, who is knowledgeable in policies and procedures relating to conscientious objection matters. The latter is required to make a recommendation, together with his reasons, concerning the application for discharge. Thereafter, the application is forwarded for action by the Army. In accordance with the regulations, Lieutenant Moore was interviewed by an Army psychiatrist, Major Barton L. Kraff, who reported as follows:

In my opinion, the patient was and is mentally responsible, able to distinguish right from wrong and to adhere to the right, and has the mental capacity to understand and participate in board proceedings. The patient has no mental disease or defect sufficient to warrant disposition through medical channels.

LTC James F. Dolan, Post Chaplain, had the following to say after the prescribed interview with Lieutenant Moore: "He is apparently sincere in his belief. I consider that his conviction is religious in basis and origin." Again in accordance with AR 635-20, petitioner was interviewed by LTC William J. Henderson.

1. Recommend approval of LT Thomas W. Moore's request to be discharged from the Army by reason of conscientious objection.

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3. I believe that LT Moore's conscientious objection is based on religious belief. He is apparently sincere in this belief. I think that his belief and code of living are still in an advanced formative stage in his mind.

4. I had difficulty determining whether LT Moore's conscientious objection was based upon a personal moral code in which his responsibility was to himself or whether it was based upon a religious code in which his responsibility was to God.

5. I found that LT Moore has made several major personal decisions that were based, in my opinion, on immature judgment or rationalization. This immature judgment evidenced itself in his decision to apply for a direct commission as a chemical officer. He had hoped that as an officer he would have a better opportunity to resolve his conflict of conscience and that his duties would be similar to those that he had anticipated as an enlisted man. He did not consider that he would no longer be a follower, but would have to be a leader and instructor of men in areas which would include warfare in general and chemical warfare in particular.

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7. With reference to LT Moore's experience while stationed at a hospital in Germany, he states that he daily saw suffering and death. However, the examples he cited were the results of accidents, illness and a self-inflicted wound and not the results of violence. I think he is repulsed by any suffering and death, no matter what the cause.

8. In spite of the inconsistencies in LT Moore's attempting to document his belief and what I consider as evidence of immature judgment, the determining point is his goal to lead a nonviolent life patterned after the life of Jesus Christ and his apparent belief in this.

Petitioner's final interview was with CPT John D. Weidmann, who reported:

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2. The applicant offered nothing in his defense other than his application for discharge under AR 635-20. However, the applicant did answer certain questions willingly and freely concerning his religious and moral beliefs. He stated that if he were confronted with a "kill or be killed" situation, he would use violence only as a last resort, but would try to disarm the assailant and escape. Secondly, he stated that his religious beliefs and teaching preclude the use of violence or force in any manner.

3. Although the applicant appears to be honest and sincere in his intentions, I believe that this request not be favorably considered because the applicant had these beliefs prior to induction, but did not make them known at that time, and the applicant's beliefs are based on essentially political, sociological, or philosophical views, or on a merely personal moral code.

Petitioner contends that this report, and the interview which formed the basis for that report, was improperly considered by the Board. His argument is that he had already been interviewed by LTC Henderson and thus the interview by CPT Weidmann was not prescribed by the Army regulations. This court is of the opinion, however, that the interview by CPT Weidmann, while not necessary under the regulation, was properly considered by the Board. Had CPT Weidmann's report been favorable toward LT Moore, he undoubtedly would not have objected to its consideration by the Board. Cf. Reitemeyer v. McCrea, 302 F.Supp. 1210, 1217-1218 n. 5 (D.Md. 1969) (Kaufman, J.). In any event, because of the result reached by this court, it is unnecessary to reach a final determination of this claim.

The Adjutant General of the Army gave as the reason for disapproving the application of LT Moore: "Applicant's professed views became fixed prior to his entry into the active military service." The Conscientious Objector Review Board adopted the same reasoning.

The federal courts are not — powered to second guess the Army as to its reasons for disapproving conscientious objection claims. Cf. Witmer v. United States, 348 U.S. 375, 380-381, 75 S.Ct. 392, 99 L.Ed. 428 (1955); Packard v. Rollins, 422 F.2d 525, 527 (8th Cir. 1970); Cooper v. Barker, 291 F.Supp. 952 (D.Md.1968) (Harvey, J.). In cases of this sort, the scope of judicial review is the sharply limited one of determining whether there was a basis in fact for the finding that petitioner was not entitled to a discharge as a conscientious objector. United States ex rel. Brooks v. Clifford, 409 F.2d 700 (4th Cir. 1969), reh. denied, 412 F.2d 1137 (1969); Hammond v. Lenfest, 398 F.2d 705 (2d Cir. 1968); Cooper v. Barker, 291 F.Supp. 952 (D.Md.1968); Keil v. Seaman, 314 F.Supp. 816 (D.Md.1970) (Kaufman, J.); Talford v. Seaman, 306 F.Supp. 941 (D.Md.1969); Donigan v. Laird, 308 F.Supp. 449 (D.Md.1969) (Northrop, J.). Because the court finds that there is no basis in fact for this finding, it quotes at length from the Board's opinion:

1. The Board finds that 2LT Moore's professed views were fixed prior to his entry into active military service. AR 635-20 precludes favorable action on applications based upon objection to war which existed prior to entry into military service but was not claimed. The Board relies on the following in support of its finding:

a. Moore was raised as a Roman Catholic. He stated that his parents raised him to live in accordance with the principles of Catholicism, and that "I have been taught to model my life after the life of Jesus Christ. In His nonviolent life, Christ has taught us the rewards of self-suffering and sacrifice." He also received 12 years of religious training in parochial schools. Thus, he stated: "While in college I continued developing my concept of religion and of what my conscience would permit me to do. By the time I entered the Army, I had strong feelings against war and killing. However, at that time I could not be called a conscientious objector. After receiving my draft notice, I enlisted in the Army for the Chemical Lab School to minimize the possibility of being placed in a position where I would be required to kill another person." (Emphasis added by Board).

b. MAJ Barton L. Kraff, the psychiatrist who examined Moore, stated: "Patient has felt that his values, and beliefs have always conflicted with the US Army, but they have been strengthened as of the last 6 months." CPT John D. Weidmann, the hearing officer, stated: "Although the applicant appears to be honest and sincere in his intentions, I believe that this request not be favorably considered because the applicant had these beliefs prior to induction, * * *" COL William M. Home, commanding officer of Edgewood Arsenal, also found that Moore's beliefs existed prior to entry into the service.

c. Thus, Moore's statement to the psychiatrist that he has always held beliefs that conflicted with the Army is consistent with the emphasized portions of his statement quoted above. So is his attempt to be placed in a position where he would not have to be concerned with killing. However, his assertion that his beliefs became fixed after his entry into military service does not ring true, for, as the psychiatrist noted, Moore stated that his beliefs deepened with the progression of his military service. This fact is undoubtedly so, but if his beliefs were crystalized prior to his entry into military service, the fact that his beliefs have become even more strongly held is irrelevant. Failure to claim conscientious objection existing prior to

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