Rosengart v. Laird

• Decision Date: 09 June 1971
• Docket Number: No. 646,Docket 35684.,646
• Citation: 449 F.2d 523
• Parties: Oliver A. ROSENGART, Petitioner-Appellant, v. Melvin A. LAIRD, Secretary of Defense, Stanley R. Resor, Secretary of the Army, and Commanding Officer, Fort Benjamin Harrison, Indianapolis, Indiana, Respondents-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

449 F.2d 523 (1971)

Oliver A. ROSENGART, Petitioner-Appellant, v. Melvin A. LAIRD, Secretary of Defense, Stanley R. Resor, Secretary of the Army, and Commanding Officer, Fort Benjamin Harrison, Indianapolis, Indiana, Respondents-Appellees.

No. 646, Docket 35684.

United States Court of Appeals, Second Circuit.

Argued January 7, 1971.

Decided June 9, 1971.

Joan Goldberg, New York City (Rabinowitz, Boudin & Standard, New York City, on the brief), for petitioner-appellant.

Alan B. Morrison, Asst. U. S. Atty., New York City (Whitney North Seymour, Jr., U. S. Atty., S. D. of New York, New York City, on the brief), for respondents-appellees.

Before LUMBARD, MOORE and SMITH, Circuit Judges.

MOORE, Circuit Judge:

Oliver A. Rosengart appeals from an order of the United States District Court for the Southern District of New York entered on November 23, 1970, denying his application for a writ of habeas corpus in a proceeding under 28 U.S.C. § 2241(c) (1) (3) seeking his discharge from the United States Army Reserves as a conscientious objector. A short stay of Rosengart's obligation to report for active duty was entered by consent at the commencement of this action; thereafter, the district court entered further stays which were continued in effect until its final determination, at which time it dissolved the stay. On December 8, 1970, this court entered a stay pending the outcome of this appeal and ordered an expedited appeal.

The gravamen of this appeal is that there was no factual basis for the Army's determination that Rosengart was not entitled to a discharge and that the multiple remands to the Army below deprived Rosengart of his rights to due process of law, the denial of which it is argued entitles him to his much-sought-after discharge. We affirm.

FACTS AND ADMINISTRATIVE PROCEDURAL HISTORY

In September 1959, while a freshman at the City College of the City of New York (CCNY), Rosengart enrolled in that college's ROTC program. Upon the completion of his five-year program in engineering, he was commissioned as a second lieutenant in the United States Army Reserves in June 1964; his active duty date was postponed to a date beyond the completion of his law studies at New York University, which was in June 1967. Shortly after his law school graduation, Rosengart was informed that he was to report for active duty on April 10, 1968.

Beginning in December 1967, Rosengart began the first in a series of maneuvers to avoid meeting his active duty obligation.¹ On a routine Army "Statement of Physical Condition for Promotion," dated December 27, 1967,² Rosengart stated that he believed himself "psychologically unfit to serve in the U. S. Army." This conclusion was grounded on Rosengart's regular psychotherapy treatment over the previous 21 months, his belief in the necessity of further treatment "for a considerable length of time," and his therapist's statement to him that "she believes that I am unfit for military service and will so state in a letter." Rosengart then requested a psychiatric examination "to determine whether I am fit for military service." On February 23, 1968, Rosengart reported for a medical examination at the New York City Armed Forces Examining Station, where he filled out the standard "Report of Medical History,"³ which contains the following references of interest: (1) in giving a statement of his "present health in his own words," Rosengart stated, "My psychological health is not good. I have been in psychotherapy for almost two years"; (2) in response to a question addressed to any school-related difficulties which he may have had, Rosengart stated that he was "a chronic underachiever in school";⁴ and (3) in response to a question whether he had ever treated himself for illnesses other than a minor cold, Rosengart stated, "I get an occasional 24 hour stomach virus. !" On March 4, 1968, an Army psychiatrist found Rosengart fit for military duty, noting that his history did not reveal "any serious pathology," that he made a "favorable impression," and that "in view of his adequate civilian adjustment he should adjust to military life."⁵

While his request for a medical discharge was still pending, and only very shortly after he had received a new set of active duty orders dated January 22, 1968 confirming his active duty date of April 10, 1968,⁶ Rosengart initiated formal application for a personal hardship deferment. The delay in reporting for active duty was sought because of the great financial, mental and physical hardship to his former German refugee parents, especially to Rosengart's mother, who was suffering from an increasingly deteriorating case of multiple sclerosis, which his early reporting presumably would have aggravated. Rosengart's father, it was alleged,⁷ would be unable to pay the soaring medical expenses because of the loss of his principal source of income as a German reparations lawyer. Consequently, it was argued, Rosengart as the only child would be required to contribute some $4,000 to $5,000 per year to the support of his parents, presumably through his continued employment as a well-paid lawyer in a patent law firm for which he was then temporarily working prior to his active duty reporting date. While this application was pending, Rosengart received a further delay.⁸ On May 3, 1968, his application for a deferment was denied.⁹

Undeterred by this rebuff, Rosengart renewed his request for a hardship deferment and submitted additional material in support thereof, including letters from his mother's doctor, the family rabbi¹⁰ as well as a letter from Rosengart himself.¹¹ This request also was based on his ability to contribute to the maintenance and support of his failing mother and apparently unemployable father. On June 24, 1968, Rosengart was denied his deferment and ordered to report for active duty on August 6, 1968.¹²

On July 8, 1968, Rosengart applied for a discharge as a conscientious objector (CO) and submitted his completed application dated August 1, 1968. Pursuant to regulation,¹³ Rosengart was interviewed by a psychiatrist, chaplain and a hearing officer, Major Mohr, each of whom recommended that Rosengart be discharged from the Army as a bona fide CO. He also was granted a further delay, pending the determination of his most recent application. On or about January 20, 1969, Rosengart was advised by the Army's Chief Reserve Personnel Officer at Fort Benjamin Harrison, Indiana, Col. Hoffman, that his request for a discharge was "disapproved" because "the determination has been made that you do not qualify for a conscientious objector classification."¹⁴ Because no reasons were given in the January 20 letter, as required by AR 135-25, the Army agreed to reconsider the application after the procedural irregularity issue was raised by Rosengart.

On or about February 27, 1969, Rosengart was reinterviewed by the same psychiatrist and chaplain and by a new hearing officer, Capt. Koch. In his findings,¹⁵ Capt. Koch stated the following:

"2. * * * After his commission in June of 1964, Lt. Rosengart realized his objection to war during his attendance at a series of religiously oriented nonsectarian camps devoted to peaceful ideals. Lt. Rosengart appears to have started a career with a public service organization and is presently a staff attorney with Mobilization for Youth Legal Services. Lt. Rosengart stated that he is willing to perform in any capacity which the Army may direct.

"3. Recommend Lt. Rosengart be considered to be a bona fide conscientious objector and that he be discharged * * * in order to permit service in the Conscientious Objectors Work Program."

By letter dated April 4, 1969, Col. Hoffman advised Rosengart that his "request for discharge by reason of conscientious objection has been disapproved" on the grounds that his application and supporting documentation "indicates that your claim as a conscientious objector is based primarily on a personal code, philosophical views and sociological experience."¹⁶

Thereupon, on April 17, 1969, Rosengart commenced this habeas corpus action.

PROCEEDINGS BELOW

Following argument on the petition, the district court by opinion and order¹⁷ remanded Rosengart's case to the Army's Conscientious Objector Review Board (Review Board), directing it to reply to four questions relating to the Review Board's prior determination of Rosengart's CO discharge application.¹⁸ The court remanded, although it noted that Rosengart's "201" file "contains evidence which affirmatively blurs the picture painted by petitioner and casts doubt on the sincerity and genuineness of his claim of beliefs which would debar active duty."¹⁹ Objection to the district court's procedure was made by way of motion for reargument and was denied.

In due course, the Army replied and indicated that with respect to Question 3, note 18, supra, it believed that Rosengart had to show that he had some religious training since joining the Army in order to qualify for a CO discharge.²⁰ The district court in a supplemental opinion²¹ found that the Army Regulation does not require postserviceentrance religious training, and that the Review Board appeared to have acted contrary to regulation. Rather than dismiss or grant the petition, the district court once again remanded the case to the Army, this time for a de novo hearing and determination on the merits. The Army again came back to court, stating its view that Rosengart was not entitled to a discharge on the ground that his application was based on philosophical views, sociological experiences and a personal moral code.²² The Government moved to dismiss the petition on the ground that such views did not come within the standards for conscientious objection established by the Supreme Court in United States v. Seeger.²³ The district court reserved decision pending the Supreme Court's decision in United States v. Sisson,²⁴ a case in which a Massachusetts district court had held that a...