Sanger v. Seamans

• Decision Date: 29 November 1974
• Parties: Captain Roger G. SANGER, Petitioner-Appellant, v. Honorable Robert C. SEAMANS, Jr., Secretary of the Air Force, et al., Respondents-Appellees. No 73-2333
• Court: U.S. Court of Appeals — Ninth Circuit

Page 814

507 F.2d 814

Captain Roger G. SANGER, Petitioner-Appellant, v. Honorable Robert C. SEAMANS, Jr., Secretary of the Air

Force, et al., Respondents-Appellees.

No 73-2333

United States Court of Appeals, Ninth Circuit.

Nov. 29, 1974.

Richard P. Fox (argued) of Los Angeles, Cal., for petitioner-appellant.

Huston T. Carlyle, Asst. U.S. Atty. (argued), Los Angeles, Cal., for respondents-appellees.

OPINION

Before WALLACE and SNEED, Circuit Judges, and EAST, ^* District Judge.

WALLACE, Circuit Judge:

Captain Sanger applied for a discharge from the United States Air Force Reserve based upon his newlyfound conscientious objection to war. The officers who interviewed Sanger concluded that he was sincere. All reviewing officers, none of whom interviewed Sanger, drew a contrary conclusion and the Secretary of the Air Force denied his application for discharge. Captain Sanger then petitioned for habeas corpus in the district court. He appeals from the denial of his petition.

The Secretary stated that his decision was based upon the recommendation of the Air Force Personnel Board. This recommendation, however, was not in Sanger's file and was available neither to him nor to the district court in which he filed his petition for habeas corpus. The absence of this crucial document requires that we reverse and remand.

As the day approached when Sanger was to report for active duty, he applied for discharge as a conscientious objector. Pursuant to the appropriate Air Force regulations for processing such claims, Sanger was interviewed by three Air Force officers: a chaplain, a psychiatrist and an investigating officer. 32 C.F.R. 888e.20, 888e.22 (1974). The psychiatrist found him to be free from psychiatric disease, and the chaplain and the investigating officer recommended that his application be granted.

These officers, however, do not make the final decision. The investigating officer forwards the record to his commander who, in turn, forwards the record with his recommendation. Thus it continues at each level of the chain of command, 32 C.F.R. 888e.24, 888e.26 (1974), until the Secretary of the Air Force makes the final decision, 32 C.F.R. 888e.28 (1974). In this case, each reviewing officer concluded that Sanger was not sincere. The reviewing officers were: the Vice-Commander and Staff Judge Advocate of the Air Reserve Personnel Center, the Deputy Director of Personnel Actions of the Air Reserve Personnel Center, the Command Chaplain of the Air Force Military Personnel Center, the Office of the Surgeon General and the Directorate of Personnel Programs Actions. In a legal review, the Chief, Administrative Law Division, Office of the Judge Advocate General, also recommended disapproval. Thereafter, the Secretary of the Air Force, upon the recommendation of the Air Force Personnel Board, declined to classify Sanger as a conscientious objector or to accept his tender of resignation.

The standards for measuring the claims of in-service conscientious objectors are the same as the statutory tests applicable to pre-induction conscientious objectors. Gillette v. United States, 401 U.S. 437, 442, 91 S.Ct. 828, 28 L.Ed.2d 168 (1971); Christensen v. Franklin, 456 F.2d 1277, 1278 (9th Cir. 1972). To qualify as a conscientious objector the applicant must establish: first, that he is conscientiously opposed to war in any form, gillette v. United States, 401 U.S. 437, 91 S.Ct. 828, 28 L.Ed.2d 168 (1971); second, that his opposition is based upon 'religious training and belief' as this concept has been developed in United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965), and Welsh v. United States,398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970); and third, that his objection is sincere. Witmer v. United States, 348 U.S. 375, 75 S.Ct. 392, 99 L.Ed. 428 (1955). See Clay v. United States, 403 U.S. 698, 700, 91 S.Ct. 2068, 29 L.Ed.2d 810 (1971). The applicant asserts a prima facie claim for such status if he makes nonfrivolous allegations 'that, if true, would be sufficient under regulation or statute to warrant granting the requested reclassification . . ..' Mulloy v. United States, 398 U.S. 410, 416, 90 S.Ct. 1766, 1771, 26 L.Ed.2d 362 (1970). If the applicant meets this burden of proof, the burden shifts to the government to demonstrate a basis in fact for denial of the application. Ward v. Volpe, 484 F.2d 1230, 1235 (9th Cir. 1973); Silverthorne v. Laird, 460 F.2d 1175, 1179 (5th Cir. 1972) (dictum). After carefully reviewing the record, we conclude that Sanger did state a prima facie claim.

The Secretary denied Sanger's application for failure to satisfy the third requirement of conscientious objector status, implying that expediency rather than sincerity prompted the application. Judicial review of this decision is very narrow. Indeed it has been described as the narrowest review known to law. Bishop v. United States, 412 F.2d 1064, 1067 (9th Cir. 1969), quoting Blalock v. United States, 247 F.2d 615, 619 (4th Cir. 1957).

As we review the Secretary's decision, we must bear in mind that when a person enters into a contractual commitment with the government to serve his country, it is anticipated that he will fulfill his promise. The government has properly recognized, however, that a sincere conversion to principles dictating a conscientious objection to war may occur after a commitment to military service has been made. The Air Force, like other branches of the service, has set up appropriate procedures to hear such claims. The government not only has an interest in granting discharges to sincere conscientious objectors but also has an equal interest in preventing misuse of these procedures as a backdoor out of military service. Discharge of conscientious objectors from military service is required neither by the Constitution nor by statute. DeWalt v. Commanding Officer, 476 F.2d 440, 442 (5th Cir. 1973).

The procedures established by the Air Force require that Secretary of the Air Force make the final decision on Sanger's application. The Secretary was not forced to grant Sanger's application because the officers who interviewed Sanger believed him to be sincere. Although we stated in Rastin v. Laird, 445 F.2d 645, 649 (9th Cir. 1971), that investigatory hearings and interviews should be given greater weight than written statements, we did not imply that the Secretary must follow the recommendation of the interviewing officers. Their recommendation is only one of several factors that the Secretary may consider before he makes the final decision. When the sincerity of the applicant is at issue, the Secretary should give serious consideration to the recommendations of the officers who actually interviewed the applicant, but he need not follow those recommendations in every case (as, for example, when there are substantial indications that the officers may have overlooked salient facts).

Nor does Tressan v. Laird, 454 F.2d 761 (9th Cir. 1972), compel the Secretary to grant Sanger's application. There we held that late crystallization of conscientious objector beliefs alone is an insufficient ground for denying a discharge, but we did not rule out an adverse decision when there is 'some other factor casting doubt on the good faith of the applicant . . ..' Id. at 763 n. 1.

Because of procedural irregularity, however, we are unable to affirm the district court in its finding of basis in fact. Although the Air Force is not required to discharge in-service conscientious objectors, once such mechanisms are established they must meet at least the minimal standards of 'procedural regularity and basic fair play.' Gonzales v. United States,348 U.S. 407, 412, 75 S.Ct. 409, 412, 99 L.Ed. 467 (1955). When the Air Force establishes regulations, it should follow them. United States ex rel. Brooks v. Clifford, 409 F.2d 700, 706 (4th Cir. 1969).

Air Force regulations require that 'the reasons for an adverse decision will be made a part of the record and will be provided to the individual.' 32 C.F.R. 888e.28 (1974). This requirement is dictated by basic considerations of fairness: The in-service applicant should know the reasons for the denial of his application so that he may be able effectively to seek judicial relief. Cf. Gonzales v. United States, 348 U.S. 407, 75 S.Ct. 409, 99 L.Ed. 467 (1955). Moreover, the reviewing court must know the reasons for the adverse decision in order adequately to review the Secretary's decision within the narrow scope permitted. United States ex rel. Checkman v. Laird, 469 F.2d 773, 781, 783 (2d Cir. 1972) (dictum).

The reasons stated by the Secretary are as follows:

Upon recommendation of the Air Force Personnel Board, the Secretary of the Air Force, on December 14, 1972, declined to classify First Lieutenant Roger G. Sanger, 509-44-9374 FV, as a Conscientious Objector within the meaning of AFR 35-24. The record does not demonstrate that expediency is not the basis of his claim. In addition, he has not satisfied the requirement to demonstrate that his beliefs are sincerely and deeply held.

The Secretary's statement, standing alone, is of little assistance to a reviewing court. We realize that this Air Force procedure utilizes military officers who cannot be expected to elaborate their decisions with the deftness of a regulatory agency. Therefore, we do not require elaborate findings of fact to accompany the decision. United States v. Willson, 452 F.2d 529, 532 (9th Cir. 1971). But unless the record clearly illuminates the factual basis, we do require from the Secretary's statement at least some direction towards the factual basis. 'Judicial review has meaning only when the court has before it a statement of the facts found and the conclusions reached.' United States v. Stickler, 452 F.2d 907, 911 (9th Cir. 1971) (dictum). In Thompson v. United States, 474 F.2d 323 (9th Cir. 1973), we endorsed the following practice:

The board, if it is denying the status claimed...