Osborne v. Seaman, Civ. No. 70-897-T.

• Decision Date: 07 October 1970
• Docket Number: Civ. No. 70-897-T.
• Parties: In the Matter of Everett A. OSBORNE v. Lt. General Jonathan O. SEAMAN, Commanding General of the First Army of the United States, Stanley Resor, Secretary of the Army, and Melvin Laird, Secretary of Defense.
• Court: U.S. District Court — District of Maryland

318 F. Supp. 41

In the Matter of Everett A. OSBORNE v. Lt. General Jonathan O. SEAMAN, Commanding General of the First Army of the United States, Stanley Resor, Secretary of the Army, and Melvin Laird, Secretary of Defense.

Civ. No. 70-897-T.

United States District Court, D. Maryland.

October 7, 1970.

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

George Beall, U. S. Atty., Francis S. Brocato and Leonard M. Linton, Jr., Asst. U. S. Attys., Baltimore, Md., for respondents.

THOMSEN, District Judge.

In this habeas corpus proceeding a captain in the United States Army claims that he is entitled to discharge from the Army as a conscientious objector. The applicable law has been recently discussed in opinions of the Fourth Circuit and of other Judges of this Court. United States ex rel. Tobias v. Laird, 413 F.2d 936 (4 Cir. 1969); United States ex rel. Brooks v. Clifford, 409 F.2d 700 (4 Cir. 1969); Cooper v. Barker, 291 F.Supp. 952 (D.Md.1968); Reitemeyer v. McCrea, 302 F.Supp. 1210 (D.Md.1969); Talford v. Seaman, 306 F.Supp. 941 (D.Md.1969); Moore v. Connell, 318 F.Supp. 884 (D.Md.1970).

The essential facts may be briefly summarized. Osborne was born on 23 April 1945. He received his commission in June 1967, after graduation from Florida A & M University, where he majored in accounting and participated in the R.O.T.C. program. Shortly thereafter he was assigned to the Finance Corps at Fort Meade, Maryland, and was promoted to captain in June 1969. He is a Baptist, married with two children. In 1969 he unsuccessfully sought a medical discharge. In February 1970, after receiving orders to serve in Vietnam, he applied for discharge as a conscientious objector. An army psychiatrist found him mentally competent. The chaplain who interviewed him concluded:

"It is my considered opinion that CPT Osborne is quite sincere in his belief that he is a genuine Conscientious Objector. He firmly believes that he has been steadily moving to his present position. His receipt of reassignment orders to RVN simply made it unavoidably necessary that he no longer procrastinate, but make a firm stand against further personal involvement, directly or indirectly, in military service."

The O-3 officer who interviewed Osborne for two hours stated:

"* * * In essence, the response indicated that the proximity to the war zone, inherent in any assignment to Vietnam, would render the evil of war so immediately apparent that he could not reconcile performance of duty with his belief that war is wrong. Thus, at this point his belief could be said to have crystallized. It is my finding that his belief, such as it is, is religiously based, and did crystallize subsequent to his entry upon active duty."

After setting out the evidence on the question of sincerity, the O-3 officer concluded: "I find that Captain Osborne's opposition to war is sincere," and stated: "In accord with the findings outlined above, I recommend that Captain Osborne's application be approved."

The CO, 16th Fin Sec (D), who did not interview Osborne, recommended disapproval of the request for the following reasons:

"a. This is the first indication that CPT Osborne has given to the Army that he was a conscientious objector, although he has been in the service for over 2 years.

"b. He is presently assigned to the Finance Corps and will probably be assigned to jobs that require administrative type duties, even in Vietnam."

The CO, Sp Trps Bn (Prov), forwarded the application to the CO, Ft. Geo. G. Meade, with the statement:

"Captain Osborne appears to be very sincere concerning this request. I have commanded this organization for only two months, therefore, I have insufficient knowledge to base a recommendation. However, in all instances that I have come in contact with this officer it was for adverse reasons and I do not consider him to possess the necessary traits and ability required of an officer in the United States Army."

The CO, Ft. Geo. G. Meade, through his Assistant Adjutant, recommended approval, stating: "It has been determined by this headquarters after careful evaluation of the inclosed documentation, that CPT Osborne is sincere in his beliefs and should be discharged by reason of conscientious objection."

On 22 May 1970 the Adjutant General returned the application without action, to the CO Fort Meade for clarification of a statement in the application about the type of discharge and report on an investigation of an unrelated matter.

On 4 June 1970, after discussing with Osborne the discharge question and securing an appropriate amendment to...