Rastin v. Laird, 71-1039.

• Decision Date: 23 August 1971
• Docket Number: No. 71-1039.,71-1039.
• Citation: 445 F.2d 645
• Parties: William Edwin RASTIN, USN, Petitioner-Appellant, v. Hon. Melvin LAIRD et al., Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

445 F.2d 645 (1971)

William Edwin RASTIN, USN, Petitioner-Appellant, v. Hon. Melvin LAIRD et al., Defendant-Appellee.

No. 71-1039.

United States Court of Appeals, Ninth Circuit.

July 23, 1971.

As Amended August 23, 1971.

Milton J. Silverman, (argued), of Somers, Fox & Kallen, San Diego, Cal., for petitioner-appellant.

Sheldon Deutsch, Asst. U. S. Atty., (argued), Harry D. Steward, U. S. Atty., Frederick B. Holoboff, Asst. U. S. Atty., San Diego, Cal., for defendant-appellee.

Before CHAMBERS and TRASK, Circuit Judges, and REAL, District Judge.^*

TRASK, Circuit Judge:

The United States District Court for the Southern District of California, 320 F.Supp. 1047, denied the application for habeas corpus of William Edwin Rastin, an enlisted man in the United States Navy. Rastin had filed a request for discharge as a conscientious objector stating his reasons therefor.¹ Appropriate hearings and interviews were held and the necessary reports filed. They were uniform to the effect that Rastin's beliefs were sincerely held and recommended discharge.² The application and recommendations of the officers were then referred to the Chief of Naval Personnel (C.N.P.) who disapproved the application upon the basis that the brevity of the asserted beliefs of the applicant did not permit the reviewing board to conclude that the applicant's affirmed conviction was deeply held.³ The applicant brings the matter here for review.

Jurisdiction of the district court is predicated upon 28 U.S.C. § 2241. The petitioner is in "custody" within the meaning of the section when he is held contrary to a valid claim of conscientious objection. Johnson v. Laird, 435 F.2d 493, 496 (9th Cir. 1970). Jurisdiction here is pursuant to 28 U.S.C. § 2253.⁴

On appeal it is the function of the reviewing court to determine whether there was a "basis in fact" for the determination of the C.N.P. Negre v. Larsen, 418 F.2d 908, 909 (9th Cir. 1969), aff'd sub nom., Gillette v. United States, 401 U.S. 437, 91 S.Ct. 828, 28 L.Ed.2d 168 (1971). The reason given for disapproval was that the applicant's belief was stated "in three short sentences rather than `describing the nature of (your) belief,' which is required by Department of Defense Directive 1300.6." We find nothing of substance in a requirement that a belief be "described" rather than "stated." The disapproval then continues by saying that the "paucity of information" does not enable the reviewing board to determine that the claim is a deeply held conviction. As the district court holds, and the government contends, this explanation appears to declare that the C.N.P. equates "deeply held" with "sincere", and that unless the belief is expounded at some length and documented, it must be found insufficient. Granted that affirmations of sincerity may be belied by inconsistent actions, writings and statements, it is doubtful if the proof of the fact may be greatly fortified by lengthy self-serving statements which may be only copy-book declarations. A history of consistent actions, of course, may support the written declarations. Some were set out in other answers contained in the application.⁵

The unanimity of corroboration of sincerity and deeply held conviction contained in the separate written reports of the O-3 officers plus the lack of negative and contra-indicated actions, writings or statements supports the view that whatever "paucity of information" was presented was consistent with the application. We have reviewed the facts set out by the district court in support of C.N.P. disapproval. They were not mentioned in the C.N.P. order. We do not find them to be persuasive. They are as follows:

"1. Petitioner\'s descriptive statements could be interpreted to not show the deep motivation which ordinarily is anticipated." C.T. 41.

They also "could be" interpreted to show deep motivation. That three naval officers after personal interviews did so interpret them in the O-3 proceedings lends strong credence to this point of view. There is no finding of conduct or expression which actually does indicate the contrary.

"2. There is an inconsistency in the record as to when he began to feel he could no longer participate in war." C.T. 41.

The court's footnote documents the statement by pointing to the uncertainty in point of time at which the feelings of conscientious objection materialized. Again, so long as they developed during his period of service (and his statements do not show the contrary), the exact time at which they fully developed do not prove a lack of sincerity or deep conviction.

"3. There is an inconsistency in the record as to the source of his feelings." C.T. 41.

The explanation for this asserted inconsistency is explained by reference to the applicant's statement on his application that: "My beliefs come from books, friends, talking and listening * * * and from the death of a life-long friend that died for his country." The trial court suggests that this is inconsistent with his statement to the chaplain to whom he stated that "His beliefs are the result of his own reading, association with college friends and professors." And is likewise inconsistent with his statements to the hearing officer to whom he reported that his convictions "evolved through self study and thought * * *."

We fail to find any such basic inconsistency which would bespeak a contra-indication of sincerity and deep conviction. This is particularly true when we remember that the statements of the chaplain and the hearing officer do not purport to be quotes but rather their own summarization of the interview.

"4. The person upon whom the petitioner relies most for religious guidance in matters of conviction relating to his claim appears to be a student." C.T. 41.

Again, "a student and life-long friend" could as well be the person upon whom the petitioner relies most for religious guidance, as an ordained minister. There is no suggestion in the record that this statement is untrue or unworthy of belief.

"5. The petitioner appears to be naive and immature; and terminated his college education on two occasions due to lack of interest prior to enlisting in the Navy." C.T. 41.

None of these facts appears to us to be necessarily inconsistent with a deep conviction or lack of sincerity. A person may be both naive and immature and still be very sincere and hold deep convictions. These may change upon attaining maturity and sophistication,...