Pitcher v. Laird

• Decision Date: 30 January 1970
• Docket Number: No. 28285.,28285.
• Citation: 421 F.2d 1272
• Parties: P. F. C. Daniel E. PITCHER, Petitioner-Appellant, v. Melvin LAIRD, as Secretary of Defense, et als., Respondents-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

421 F.2d 1272 (1970)

P. F. C. Daniel E. PITCHER, Petitioner-Appellant, v. Melvin LAIRD, as Secretary of Defense, et als., Respondents-Appellees.

No. 28285.

United States Court of Appeals, Fifth Circuit.

January 30, 1970.

Maury Maverick, Jr., San Antonio, Tex., for petitioner-appellant.

Seagal V. Wheatley, U. S. Atty., Henry Valdespino, Asst. U. S. Atty., San Antonio, Tex., for respondents-appellees.

Before RIVES, GEWIN and INGRAHAM, Circuit Judges.

RIVES, Circuit Judge:

Pitcher appeals from a denial of his petition for writ of habeas corpus in the district court. Pursuant to a United States Army Regulation,¹ Pitcher filed an application for discharge, claiming that he had become a conscientious objector after entering the military service. The Secretary of the Army denied the request for discharge on the ground that Pitcher's claim was based on a personal moral code and not upon religious beliefs. The district court in denying his petition for habeas corpus found that there was basis in fact for the Army's denial of his application for discharge. We reserve and remand with directions that Pitcher's request for habeas corpus relief be granted.

Private First Class Pitcher voluntarily enlisted in the U. S. Army under a contract of service dated February 19, 1968. Although he had considered an I-A-O classification (noncombatant military service) on philosophical grounds, Pitcher thinking he could keep a clear conscience entered the medical corps.² At no time prior to enlistment did he raise the question of conscientious objection.

On April 2, 1969, Pitcher submitted a written request for discharge from the Army under the provisions of Army Regulation 635-20.³ Pitcher stated in his application that after joining the Army he had a "new, moving experience" which was based on religion and a belief in God. As a result of this "experience," his thoughts crystallized into conscientious objection to military service in any form. In describing the source of his newly-founded beliefs, Pitcher explained that for the previous six months he had been attending and working in the Church of the Holy Spirit, an Episcopal Church Mission in downtown San Antonio, Texas. During this period and after a great deal of prayer and meditation, "I realized that I could not in any manner support the use of violence against my brother whom I am commanded, as a Christian, to love." In describing the depth of his conviction, Pitcher stated: "It was not until recently that I made a decision to become a conscientious objector and because the finalizing of this decision came only recently, I have not had time to demonstrate my beliefs in an open manner. Until this time, I have been a compliant with serious doubts about my military commitment."⁴

As provided by Regulation 635-20, Pitcher was interviewed by a medical officer, an Army chaplain, and an officer of the grade of 0-3 or higher. The medical officer, Major Martin S. Posner, found that Pitcher had no psychiatric disorder or mental defects. The Army chaplain, Major Howard W. Marsh, thought Pitcher to be sincere in his conscientious objection beliefs and found that his objection to military service on religious grounds was only recently formed.

Pitcher was also interviewed by a field grade officer, Lt. Colonel Denis F. Sheils, who found:

"From this interview and evaluation of the material in PFC Pitcher\'s request it is difficult to determine the sincerity of his actions but it does appear that his conscientious objections are philosophical views or personal moral codes that he has developed since his association from September 1968 with the Church of the Holy Spirit which supports a coffee house as part of the church mission. It does not seem logical to me that PFC Pitcher, being the son of a United Methodist minister and an active member of the United Methodist Church which supports conscientious objectors, would not have applied for a conscientious objector\'s draft classification before he enlisted. The fact that he enlisted rather than waiting to be drafted indicates that he felt he could serve in the armed forces. It also seems illogical that his religious convictions could have been so radically changed in the few months after his association with the Holy Spirit Church to the extent that he now cannot serve in a non-combatant status."

The various commanding officers in the chain of command recommended disapproval of Pitcher's request, and on May 19, 1969, by order of the Secretary of the Army, Pitcher's application for discharge was denied with the comment: "Evidence indicates that applicant's claim is based on a personal moral code and not upon religious beliefs."

On June 11, 1969, the district court denied Pitcher's petition for habeas corpus. The court, although of the opinion that Pitcher had not exhausted his administrative remedies, assumed jurisdiction and found that there was basis in fact for the Army's denial of Pitcher's request. Pitcher's motion for stay pending appeal was denied by this Court. Pitcher v. Laird, 415 F.2d 743 (5th Cir. 1969).⁵

Exhaustion of Administrative Remedies

In its order denying habeas corpus relief, the district court stated that Pitcher had not exhausted his administrative remedies. The court, however, assumed jurisdiction and denied relief on the merits. The government initially argued as one of its grounds for affirmance that Pitcher had not exhausted his administrative remedies, i. e., that he did not appeal the denial of his application for discharge to the Board for Correction of Military Records. Therefore, the government contended, the district court did not have jurisdiction over Pitcher's petition.

Because of a change in Department of Justice policy, the government no longer contends that Pitcher's failure to appeal the denial of his request to the Board for Correction of Military Records constitutes a failure to exhaust administrative remedies.⁶ Realizing, however, that neither party can waive jurisdictional defects,⁷ we find that the district court had proper jurisdiction over Pitcher's petition for habeas corpus.

We agree with the Fourth and Second Circuits that where neither court-martial nor military justice procedures are pending, an unsuccessful applicant for post-induction conscientious objector discharge does not have to appeal to the Board for Correction of Military Records in order to exhaust his available administrative remedies. United States ex rel. Brooks v. Clifford, 409 F.2d 700, 706-707 (4th Cir. 1969); Hammond v. Lenfest, 398 F.2d 705, 713 (2d Cir. 1968); United States ex rel. Healy v. Beatty, 300 F.Supp. 843, 845-846 (S.D.Ga.1969); Gann v. Wilson, 289 F.Supp. 191 (N.D.Cal.1968); Crane v. Hedrick, 284 F.Supp. 250, 253 (N.D.Cal.1968). But see Craycroft v. Ferrall, 408 F.2d 587 (9th Cir. 1969); Noyd v. McNamara, 378 F.2d 538 (10th Cir. 1967).⁸

As noted above, this Court denied Pitcher's Motion for Stay Pending Appeal. In denying the motion, the Court commented on Pitcher's exhaustion of administrative remedies:

"Without prematurely evaluating the merits of petitioner\'s case, the likelihood that petitioner will prevail is somewhat lessened by the narrow range afforded this Court in reviewing military habeas corpus matters. See Burns v. Wilson, 346 U.S. 137, 142, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953); Gorko v. Commanding Officer, 314 F.2d 858, 859 (10th Cir. 1963). Furthermore, respondent urges that petitioner has failed to exhaust his Military Administrative remedies by failing to petition the Board for Correction of Military Records. The District Court was also of this opinion. We note, without prejudice to petitioner\'s future arguments, that respondents\' contentions have at least an appearance of correctness. See McCurdy v. Zuckert, 359 F.2d 491 (1966)."

Pitcher v. Laird, 415 F.2d 743, 745 (5th Cir. 1969).

McCurdy v. Zuckert, 359 F.2d 491 (5th Cir. 1966), is distinguishable from this case. McCurdy involved a general discharge for unfitness by a Board of Officers. The district court, although denying McCurdy's request for a temporary injunction, retained jurisdiction until McCurdy had an opportunity to have his case reviewed by the Air Force Board for Correction of Military Records. This Court, holding that the district court lacked jurisdiction, noted that under 10 U.S.C.A. § 1553 (supp.) McCurdy could have a full hearing to review his discharge.

In this case Pitcher, an unsuccessful applicant for conscientious objection discharge, fully complied with the procedure for conscientious objection discharge set forth in Department of Defense Directive 1300.6 and Army Regulation 635-20.⁹ In the limited factual situation of this case — where court-martial or military justice procedures are not pending — we hold that Pitcher had exhausted all available administrative remedies.

Basis in Fact

The district court found that there was basis in fact for the Army's denial of Pitcher's request for discharge. Pitcher's request for discharge can only be understood in the context of the general procedures adopted by the military for dealing with conscientious objectors. Until 1962, the Department of Defense had no procedures permitting the discharge of military personnel for reason of conscientious objection. But, in 1962, pursuant to 10 U.S.C.A. § 133, see Hammond v. Lenfest, 398 F.2d 705, 708 (2d Cir. 1968), the Secretary of Defense issued Department of Defense Directive (DOD) No. 1300.6, which established a policy permitting discharge for valid conscientious objection claims.

The Army's criteria for examining conscientious objection claims is enunciated in DOD 1300.6 V:

"Section 6(j) of Title I of the MSS Act (reference (c)) provides an exemption from combatant training and service in the Armed Forces of the United States for any person `who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form.\' The same subsection further provides that `"religious

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