Ross v. McLaughlin, Civ. A. No. 539-69-R.

• Decision Date: 22 January 1970
• Docket Number: Civ. A. No. 539-69-R.
• Citation: 308 F. Supp. 1019
• Court: U.S. District Court — Eastern District of Virginia
• Parties: John K. ROSS, Petitioner, v. Brigadier General John D. McLAUGHLIN and Stanley Resor, Respondents.

308 F. Supp. 1019

John K. ROSS, Petitioner, v. Brigadier General John D. McLAUGHLIN and Stanley Resor, Respondents.

Civ. A. No. 539-69-R.

United States District Court E. D. Virginia, Richmond Division.

January 22, 1970.

Kendall M. Barnes, Jr., Alexandria, Va., David Rein, Forer & Rein, Washington, D. C., for petitioner.

David G. Lowe, Asst. U. S. Atty., Richmond, Va., for respondents.

MEMORANDUM

MERHIGE, District Judge.

Petitioner, a member of the United States Army in which he enlisted after being inducted, seeks a writ of habeas corpus to effect his release upon his claim that he is a conscientious objector.

Jurisdiction of the Court is based on 28 U.S.C. § 2241; see also, United States ex rel. Brooks v. Clifford, 409 F.2d 700 (4th Cir. 1969).

Respondents are the Commanding General at Fort Lee, Virginia, wherein he is stationed, and Stanley Resor, Secretary of the Army. Respondents have answered and filed with their answer pertinent records concerning the issues involved herein.

The Court having considered the pleadings, admissions contained therein, exhibits, stipulations made at the bar of the Court, and argument of counsel, finds as follows:

Petitioner, who has been a member of the armed forces since February 7, 1968, underwent basic training at Fort Lewis, Washington, attended a specialty school at Fort McClellan, Alabama, and has since October, 1968, been stationed at Fort Lee, Virginia, within this district. In June of 1969, petitioner received leave for purposes of attending his father's funeral, and while on leave received word of his orders for duty in Vietnam. On August 27, 1969, he made application for separation from the service pursuant to Army Regulation No. 635-20, which sets forth the policy, criteria and procedures for disposition of Army personnel who, by reason of religious training and belief, claim conscientious objection to participation in war in any form. Petitioner Ross in his application described his beliefs as contained in Footnote 1.¹

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Accompanying Ross' application were letters from a former college professor, a former employer, and his family dentist.

Pursuant to the provisions of A.R. No. 635-20, he was interviewed by an Army chaplain, a psychiatrist, and a disinterested officer of the rank of captain, a Captain Holloway.

The chaplain made no recommendations, but evidenced his acceptance of the sincerity of the applicant's stated faith and belief, and further stated, "It is my opinion that the objections of Specialist Ross to continued military service and reassignment to the Republic of Vietnam are based on convictions of an ethical/philosophical nature."

The captain who had interviewed Ross recommended disapproval of the application, basing his recommendation on his conclusion that Ross' ideas were of a political and philosophical nature and had no bearing on his religious beliefs.

Ross' unit commander, it was stipulated at the bar of the Court, had recommended approval of petitioner's application although said recommendation is not to be found in the files of the military, it having been withdrawn and replaced by a letter from his unit commander dated October 16, 1969, recommending disapproval.

The psychiatrist's report simply cleared the applicant psychiatrically for such action as was appropriate.

Pursuant to the Army regulation, the application proceeded through the chain of command receiving recommended disapproval, except as herein noted, until it reached the Commanding General of Fort Lee, who recommended that the application be approved. Subsequent to the Commanding General's recommendation, the matter went before the Army's Conscientious Objector Review Board who issued an opinion disapproving the application, and the matter then went to the Adjutant General of the Army who formally disapproved same on the grounds: (1) Applicant does not truly hold views against participation in war in any form which are derived from religious training and belief; and (2) Applicant's professed views became fixed prior to his entry into the military service. This disapproval gives rise to the instant action.

The scope of review to which this Court is limited in a case of this nature has been succinctly described by Judge Winter of this Circuit as a "sharply limited one of determining whether there was a basis in fact for finding petitioner was not a conscientious objector." See United States ex rel. Brooks v. Clifford, supra; see also, Hammond v. Lenfest, 398 F.2d 705 (2d Cir. 1968); U. S. v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965).

The Department of Defense issued a directive effective May 10, 1968, and subsequently amended, which spells out the criteria for determining conscientious objection and procedures to be followed in regard to persons inducted into military service who claim to be conscientious objectors when they assert such claim. This directive from the Department of Defense, No. 1300.6, and Army Regulation No. 635-20, provide for discharge of military personnel who develop, subsequent to entry into active military service, the conscientious opposition to war as spelled out by Congress in 50 U.S.C.A. App. § 456(j), which in essence provides that no person shall be required to be subject to combatant training and service in the armed forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form.

The file reflects no conclusions based on any facts contained therein which would warrant a description of Ross' views as being insincere. As pointed out by counsel, the reasons assigned by the Review Board for its disapproval go to their conclusion as to his lack of religious conviction. The issue of his sincerity is, of course, pertinent. Of the military who interviewed Ross pursuant to Army regulations, no one questioned the sincerity of his beliefs. Any doubt as to sincerity must have a rational basis. See United States v. Hesse, 417 F.2d 141 (8th Cir. 1969). Mere speculation or conjecture as to insincerity is not enough, Witmer v. United States, 348 U.S. 375, 381, 75 S.Ct. 392, 99 L.Ed. 428 (1955).

This Circuit has described the regulatory scheme adopted by the Department of Defense and the United States Army in cases of this nature as having been generously designed to protect soldiers who, after enlistment, find war morally repugnant and impossible to square with religious beliefs, see United States ex rel. Tobias v. Laird, 413 F.2d 936 (4 Cir., 1969).

It is not only contemplated, indeed it is required under the Department of Defense directive, that "evaluation of the sincerity of a claim of conscientious objection requires objective consideration of professed belief not generally shared by persons in the military service. For that reason, particular care must be exercised not to deny bona fide convictions solely on the basis that the professed belief is not compatible with one's own." See Directive, ¶ 5(c), DoD 1300.6.

Up to the point where Ross' application commenced its ascent through the chain of command there was no hint of any conclusion going to the lack of sincerity in Ross' claim. Indeed the exhibits accompanying the application, consisting of letters from people who had known petitioner prior to his entry into the service, all affirmed their unequivocal belief in his sincerity. Neither the captain who interviewed Ross, nor his unit commander, who, it is fair to assume had some personal contact with him, made any allegation of insincerity. Indeed his unit commander, as the Court has previously mentioned, recommended approval of his application. If there was any reference to Ross' alleged lack of sincerity in that recommendation, it became as illusory as the reasons assigned for the lack in the military file of the original affirmative recommendation.

None of the individuals, or the Conscientious Objector Review Board, assigned any legally sufficient reason to support their recommendations. None of the reasons given for the denial of this petitioner's application are founded on a basis in fact. Indeed the Review Board refers to Ross' unit commander as having determined that petitioner was motivated by his orders to Vietnam.

It is to be borne in mind that, assuming arguendo that the prospect of assignment in Vietnam may have played a role in petitioner's decision, this would not in and of itself support a basis in fact for the Army's refusal to accord this petitioner his rights under the law. Admittedly the prospect of Vietnam intensified, as he put it, "the vast disparity between my role as a soldier and my deep responsibility as a part of humanity." Without something more there could not be ignored petitioner's own statement that those orders in themselves were to him no different than any other orders. Indeed there is no longer any doubt that the mere fact that the prospect of combat duty in Vietnam may have acted as a catalyst and may have affirmatively been the stimulus for the submission of a request for discharge, is not, standing alone, sufficient to represent a basis in fact to reach the conclusion made in this case. See Tobias, supra.

A cursory examination of the application makes out a prima facie case in support of petitioner's request for discharge when taking into consideration the national policy set out by Congress.

Coming now to the Review Board's findings that petitioner's beliefs were not religious in nature within the meaning of § 456(j) of the statute and the Army Regulations, this Court feels the answer is readily ascertainable in the pronouncements of the United States Supreme Court in United States v. Seeger, supra. It is not necessary to be a member of any organized church to sustain a claim of conscientious objector. See also, Batterton v. United States, 260 F.2d 233 (8th Cir. 1958).

The test as expressed in Seeger, supra, is an objective one, namely, "Does the claimed belief occupy the...