Nason v. Secretary of Army

• Decision Date: 23 September 1969
• Docket Number: Misc. Civ. No. 69-32-C.
• Parties: Jeffrey D. NASON, Petitioner, v. SECRETARY OF the ARMY et al., Respondents.
• Court: U.S. District Court — District of Massachusetts

304 F. Supp. 422

Jeffrey D. NASON, Petitioner, v. SECRETARY OF the ARMY et al., Respondents.

Misc. Civ. No. 69-32-C.

United States District Court D. Massachusetts.

September 23, 1969.

William P. Homans, Jr., Boston, Mass., for plaintiff.

Herbert F. Travers, Jr., U.S. Atty., Stanislaw R. J. Suchecki, Asst. U.S. Atty., for defendant.

OPINION AND ORDER

CAFFREY, District Judge.

This matter came before the Court on petitioner's application for a writ of habeas corpus, respondents' opposition to the granting of the writ, and respondents' motion to dismiss the application. A hearing was held, at which testimony of Rabbi Roland B. Gittelsohn was offered by petitioner for the purpose of showing compatibility between the principles of Jewish theology and the principles of conscientious objection, and for showing that there is a basis in Jewish theology for conscientious objection. This testimony was treated only as an offer of proof at the hearing and I so treat it herein, in view of the well-established principle that the review of the administrative proceeding before the United States Army is to be conducted by a district court solely on the evidence which was before the Army. Cox v. United States, 332 U.S. 442, 68 S.Ct. 115, 92 L.Ed. 59 (1947). The matter was also briefed by the parties. The following facts may be taken as true for the purpose of deciding these motions.

Petitioner, a physician and psychiatrist, is a First Lieutenant, Medical Corps, in the United States Army Reserve. He is not on active duty nor is he attached to any particular reserve unit. He is presently engaged in a period of residency training and is deferred from being called to active duty in the United States Army until such time as his residency training shall be determined by the Army to have been completed. His enlistment in the reserve is pursuant to the Armed Forces Physicians Appointment and Residency Consideration Program, commonly known as the "Berry Plan."

Dr. Nason filed an application for appointment as a First Lieutenant in the Army Reserve on August 23, 1966. He was appointed a First Lieutenant in the reserve, under the provisions of 10 U.S.C.A. §§ 591, 593, on November 10, 1966, and executed his oath of office on November 23, 1966.

On October 22, 1968, petitioner filed an application for discharge, by reason of conscientious objection, with the Office of Personnel Operations, United States Army, pursuant to Army Regulation 135-25. The application was supported by documentation, which included a statement by petitioner as to his conscientious opposition to participating in the war in any form by reason of his religious training and belief, and letters from various individuals. After certain administrative steps and processes were followed, a letter was written on March 27, 1969, by Lt. Colonel William E. Manning, Acting Commanding Officer, Department of Personnel Operations, United States Army, which letter advised Dr. Nason of the denial of his application, for the reason that "the documentation and evidence presented * * * indicates your beliefs constitute a personal moral code founded on sociological and philosophical views and an objection to the current conflict in the Republic of Viet Nam. In addition, the documentation submitted failed to convince the individual board members of the sincerity of your stated conscientious objector conviction."

The motion to dismiss filed by the Government is based on three grounds, (1) that this court lacks jurisdiction, (2) failure of petitioner to exhaust administrative remedies within the Army, and (3) that there was a basis in fact justifying the Army's denial of petitioner's application for discharge.

It has long been established that the jurisdiction of a United States district court to issue a writ of habeas corpus is limited to those cases in which the petitioner is confined or detained within the territorial jurisdiction of the court, Ahrens v. Clark, 335 U.S. 188, 68 S.Ct. 1443, 92 L.Ed. 1898 (1948); Duncan v. State of Maine, 295 F.2d 528, 530 (1 Cir. 1961), cert. denied 368 U.S. 998, 82 S.Ct. 624, 7 L.Ed.2d 536. It is likewise beyond argument that a person on active duty in the armed services is "in custody" within the meaning of 28 U.S.C.A. sec. 2241. Brown v. McNamara, 387 F.2d 150, 152 (3 Cir. 1967), cert. denied sub nom. Brown v. Clifford, 390 U.S. 1005, 88 S.Ct. 1244, 20 L.Ed.2d 105 (1968). Further, it has been held that a member of a reserve component of the military service may likewise qualify as a petitioner "in custody" under 28 U.S.C.A. sec. 2241. United States ex rel. Schonbrun v. Commanding Officer, 403 F.2d 371, 373 (2 Cir. 1968), cert. denied 394 U.S. 929, 89 S.Ct. 1195, 22 L.Ed.2d 460 (1969); Hammond v. Lenfest, 398 F.2d 705, 710 (2 Cir. 1968); Barr v. Weise, 293 F.Supp. 7 (S.D.N.Y.1968).

I rule that under the provisions of AR 135-50 a doctor pursuing his medical education under the so-called Berry Plan, even though the more military aspects of his service, training and other incidents of reserve status are more remote than those of non-medical members of various reserve units and components, is, nevertheless a reserve officer, and as such has standing to bring a petition for a writ of habeas corpus. Such a medical reservist, as appears from Government Exhibit 2 herein, has received a reserve commission by direction of the President, has received an appointment as a reserve officer for an indefinite term, and has executed an oath of office (DA Form 71) in which he acknowledges, inter alia, "I * * * having been appointed an officer in the Army of the United States * * * will well and faithfully discharge the duties of the office * * *"

I further rule that because petitioner is serving a medical residency in Massachusetts, at the Massachusetts Mental Health Center, Boston, with the approval of the United States Army Reserve Components Personnel Center, Fort Benjamin Harrison, Indianapolis, Indiana, as appears from Exhibit 2, he is following the program subject to and in conformity with the provisions of paragraph 14 of AR 135-50 dated May 9, 1966. Consequently, to the extent that any member of a reserve component is "in custody" anywhere for purposes of habeas corpus, I rule that Dr. Nason is "in custody" in Massachusetts, where he is following a program of residency training in psychiatry with the express approval of the Commanding Officer, United States Army Reserve Components Personnel Center, Fort Benjamin Harrison, and that, therefore, he is "in custody" within the meaning of 28 U.S. C.A. § 2241 in Massachusetts, and this court does have jurisdiction.

With regard to the question of whether or not petitioner has exhausted available administrative remedies, the law is far from clear. Not only have contrary results recently been reached by the Court of Appeals for the Ninth Circuit, Craycroft v. Ferrall, 408 F.2d 587 (1969), and the Court of Appeals for the Fourth Circuit, U.S. ex rel. Brooks v. Clifford, 409 F.2d 700 (1969), rehearing denied, 4 Cir., 412 F.2d 1137, United States ex rel. Tobias v. Laird, 4 Cir., 413 F.2d 936, July 25, 1969, but it would also appear that in two recent opinions, Laxer v. Cushman, June 19, 1969, No. 69-28 D.C., 300 F.Supp. 920, and Jenkins v. Commandant, First Naval District, Sept. 16, 1969, No. 69-39, D.C., 303 F.Supp. 1150 other judges of this court have likewise taken contrary positions on the legal issue as to whether or not a member of the military must take an appeal to the Army Board for Correction of Military Records under the doctrine of exhaustion of administrative remedies. The position taken by the Court of Appeals for the Fourth Circuit has also been adopted by the Court of Appeals for the District of Columbia, in Ogden v. Zuckert, 111 U.S. App.D.C. 398, 298 F.2d 312 (1961) and by the District Court for the Northern District of California in Gann v. Wilson, 289 F.Supp. 191 (1968).

With all deference to those courts which have ruled that the Army Board of Correction of Military Records must first be resorted to, I am persuaded, primarily on an analysis of the legislative history of the statute which created that Board, that the doctrine of exhaustion of administrative remedies does not require application to that Board prior to the institution of a petition for habeas corpus.

In Ogden v. Zuckert, supra, the Court of Appeals for the District of...