Rothfuss v. Resor

• Decision Date: 15 June 1971
• Docket Number: 30850.,No. 30731,30731
• Citation: Rothfuss v. Resor, 443 F.2d 554 (5th Cir. 1971)
• Parties: PFC Carl F. ROTHFUSS, Petitioner-Appellant, v. Stanley RESOR, Secretary of the Army, and Colonel Paul Chmar, Fort Bliss, Texas, Respondents-Appellees. PFC Lawrence P. O'BRIEN, Petitioner-Appellant, v. Stanley RESOR, Secretary of the Army, and Colonel Paul Chmar, Fort Bliss, Texas, Respondents-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

443 F.2d 554 (1971)

PFC Carl F. ROTHFUSS, Petitioner-Appellant, v.Stanley RESOR, Secretary of the Army, and Colonel Paul Chmar, Fort Bliss, Texas, Respondents-Appellees.

PFC Lawrence P. O'BRIEN, Petitioner-Appellant, v.Stanley RESOR, Secretary of the Army, and Colonel Paul Chmar, Fort Bliss, Texas, Respondents-Appellees.

Nos. 30731, 30850.

United States Court of Appeals, Fifth Circuit.

June 15, 1971.

Wayne Windle, Jr., El Paso, Tex., for petitioner-appellant Rothfuss.

Ruth Kern, El Paso, Tex., for petitioner-appellant O'Brien.

Seagal V. Wheatley, U. S. Atty., San Antonio, Tex., Victor K. Sizemore, Asst. U. S. Atty., El Paso, Tex., for respondents-appellees.

Before COLEMAN, SIMPSON and RONEY, Circuit Judges.

SIMPSON, Circuit Judge:

These two cases, consolidated for oral argument, come to us on appeal from denials of habeas corpus relief by the district court for the Western District of Texas.We find it convenient to our purposes to dispose of the two appeals by a single opinion.

Both appellants are service men on active duty with the United States Army.Each sought discharge from the Army on grounds of conscientious objection to both combatant and noncombatant military service.The denials of application for discharge by the Army were upheld by the district court's denial of habeas relief.We remand the cases for further proceedings before the district court.

Rothfuss v. Resor, No. 30,731

Carl F. Rothfuss was inducted into the Army on June 20, 1969.He was a graduate of Michigan State University and had taken some post-graduate work at that institution prior to his induction.On June 24, 1970, Rothfuss filed an application for discharge as a Class I-O conscientious objector¹ pursuant to Army Regulation 635-20.²Although Rothfuss acknowledged his upbringing in a Roman Catholic home, he based his claim on broader Christian principles, stating that his religious beliefs were founded on "Non-sectarian Christianity — faith in and adherence to the fundamental pacifist teachings of Jesus of Nazareth as revealed and recorded in the Gospels, without active membership in any denomination".Rothfuss submitted a comprehensive application, describing the nature of his claimed belief, the sources from which he had received his training and belief, and the actions and behavior in his life which demonstrated the depth and consistency of his religious faith.Rothfuss described his Catholic background, and his recent acquaintance with the teachings of one Gordon Zahn, whom he described as a leading contemporary Catholic pacifist.Rothfuss explained that his reading of the teachings of Zahn, coupled with his military training in the art of killing human beings, caused a crystallization of his objection to war in all forms after his induction into the Army.Rothfuss' father, two previous college instructors at Michigan State University, and a fellow graduate student who had known Rothfuss at Michigan State all submitted letters attesting to the sincerity of Rothfuss' beliefs.

In accordance with Army regulations, Rothfuss was interviewed by an Army Chaplain.Chaplain Louis J. Karry reported his conclusions:

"This is to certify that I, Chaplain (LTC)Louis J. Karry, have counselled with PFC Carl F. Rothfuss, SSAN XXX-XX-XXXX, in reference to his claim to be a conscientious objector.After much discussion it was learned that the claimant\'s views are not of a political, sociological, or philosophical nature, nor the result of previous religious training.I believe that these views and convictions are of a religious nature and prompted by the man\'s conscience, and personal conviction.I have found him most sincere in his convictions."

With this evidence before an Army Conscientious Objection Review Board, the appellant was interviewed by the Board.His immediate commanding officer, Captain V. Pittman, stated his conclusions after the interview:

"I doubt that PFC Rothfuss\' beliefs are as deep and concrete as he states.They appear to be founded on a personal moral code based on apprehension of his pending assignment to Vietnam."

Colonel Paul Chmar, another reviewing officer, stated:

"After interviewing PFC Rothfuss, the undersigned is of the opinion that his beliefs of not being able to serve in the armed forces are based more on aversion to the war in Vietnam rather than a deep seated, life long religious concept.During the interview it was brought out that, had this individual\'s military training led to an assignment in Germany or Western Europe he probably would not have developed the feelings of his inability to serve in the armed forces.The sincerity of the application is further questioned in that PFC Rothfuss indicated his intent to apply for I-O status only after notification of assignment to Vietnam.Concurrently three of his classmates submitted similar applications."

Captain John J. Doggett, III, the third officer to review the applicant's claim for discharge, concluded:

"It is interesting to note that PFC Rothfuss\' position and beliefs have completely changed in a relatively short time.PFC Rothfuss did not make an application for conscientious objector status until immediately before he was to be sent to Vietnam.He made no application nor made his alleged beliefs known until after he had completed basic combat training and advanced training in Vietnamese language.Also PFC Rothfuss appears to be mainly concerned with the Vietnam war and he pays lip service to an objection against all wars so as to come within the purview of Army regulations.PFC Rothfuss\' explanation of his religious beliefs reveals that he merely re-examined his position and finds that now serving in the military is a violation of his conscious (sic) and belief in the teachings of Christ.This belief does not appear to be a primary controlling force in this man\'s life and has not been developed through any religious training or self contemplation comparable in rigor and dedication to those processes by which traditional religious convictions are formulated."

The application was then forwarded by the Review Board to the Adjutant General of the Army with an unfavorable recommendation based upon a statement that applicant's beliefs were not religious in nature and were not sincerely held by the applicant.The Adjutant General, on August 31, 1970, denied Rothfuss' application with the notation that "applicant's views are not truly held".We interpret this to mean that the discharge was not denied on the basis of the conclusions of the interviewing officers that Rothfuss' beliefs were not based on religious training and belief, but rather that the denial was based solely on the interviewing officers' bare conclusions with regard to the applicant's sincerity.³

Petition for habeas corpus was filed in the district court.After a non-evidentiary hearing the district judge denied the petition for writ of habeas corpus.The denial was supported by the judge's finding that the Army had acted with basis in fact.

O'Brien v. Resor, No. 30,850

Lawrence P. O'Brien was inducted into the Army on September 5, 1969.He was then a graduate of the University of Notre Dame.After more than ten months on active duty, on July 14, 1970, he filed an application for discharge under Army Regulation 635-20 as a Class I-O conscientious objector.⁴O'Brien claimed objection to war in any form differed somewhat from that of Rothfuss.O'Brien based his application firmly on his alleged deeply-held belief in the teachings of the Roman Catholic church.He alleged that he had always been and was then a devout Roman Catholic; that he was educated in Catholic schools and universities; that he was always active in Catholic youth organizations, and that his uncle, a Catholic Monsignor, had been a guiding force in his life.O'Brien cited Catholic teachings recognizing the legitimacy of conscientious objection to war.O'Brien's claim was also supported by letters from relatives and civilian acquaintances.An Air Force Colonel and friend of the O'Brien family, Ward E. Cory, wrote to O'Brien's superiors stating his belief in the deep religious devotion of the entire O'Brien family.Chaplain Karry indorsed O'Brien's application with the same recommendation that he had made on behalf of Rothfuss.

After interviewing O'Brien, Captain Pittman stated his conclusion:

"PFC O\'Brien states that he did not reach his decision to apply for discharge UP AR 635-20 until he received orders for the Republic of Vietnam.Although he may be sincere about his dislike for violence, I believe that his primary motivation is a natural concern for his wife and expectant child."

Colonel Chmar concurred in Captain Pitman's doubts about the sincerity of O'Brien's beliefs:

"Although PFC O\'Brien received his schooling in religious institutions and comes from a family devoted to its religious beliefs, there is no indication that he held conscientious objector views until receiving his orders for Vietnam.During an interview, PFC O\'Brien was queried as to his statement that he was a I-A-O after completing basic training and upon receiving orders to the Vietnamese language school here at Fort Bliss.He stated that he held this belief in his own mind, but had not officially communicated his position to anyone in authority.

"The sincerity of the application is questioned based on the time of submission and after having served 10 months in the Armed Forces.In addition to PFC O\'Brien\'s application, two of his classmates submitted I-O requests at the same time."

On September 16, 1970, O'Brien's application was disapproved by the Adjutant General of the Army with the notation that "Applicant's professed views are not truly held".Without holding a hearing, the district court found that the Army had acted with basis in fact in denying the claimant's request and dismissed the petition for writ of habeas corpus.

The Issues

In these caseswe are required to review the district court's conclusion...