Shaffer v. Schlesinger, s. 75--1569 and 75--2257

• Decision Date: 23 February 1976
• Docket Number: Nos. 75--1569 and 75--2257,s. 75--1569 and 75--2257
• Citation: 531 F.2d 124
• Parties: Michael B. SHAFFER, Appellant, v. Hon. James R. SCHLESINGER, Secretary of Defense, et al., Appellees.
• Court: U.S. Court of Appeals — Third Circuit

Page 124

531 F.2d 124

Michael B. SHAFFER, Appellant, v. Hon. James R. SCHLESINGER, Secretary of Defense, et al., Appellees.

Nos. 75--1569 and 75--2257.

United States Court of Appeals, Third Circuit.

Argued Nov. 10, 1975.

Decided Feb. 3, 1976.

As Amended Feb. 23, 1976.

Jeremiah S. Gutman, Melvin L. Wulf, New York City, William V. Kolshorn, Jr., Trenton, N.J., for appellant.

Jonathan L. Goldstein, Andrew M. Higgins, Newark, N.J., for appellees.

Before ALDISERT, HUNTER and GARTH, Circuit Judges.

OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge:

Michael B. Shaffer, a Second Lieutenant in the United States Army, sought a writ of habeas corpus to effect his discharge on the ground that he was a conscientious objector. Petitioner had sought the writ after his claim for conscientious objector status had been denied by the Army Conscientious Objector Review Board ('Board'). The district court, concluding that there was a basis in fact to support the Board's determination that petitioner's beliefs were not sincerely held, dismissed the writ. From our review of the record, we are satisfied that the Board's decision had no basis in fact, and accordingly, we reverse.

I

From 1960 to 1964, while an undergraduate, petitioner was a member of the Reserve Officers' Training Corps ('ROTC'). Thereafter, petitioner pursued graduate studies, during which he continued to be a member of the ROTC. In 1967, he was appointed a Second Lieutenant in the United States Army Reserve. Petitioner subsequently applied for and received a deferment to postpone activie duty from July 1, 1967 until April 6, 1970 in order to study for a degree in law. Apparently, petitioner ceased his law school studies after the first week of classes. He did not inform the Army of his change in status until the spring of 1969.

On April 15, 1970, petitioner entered on active duty in the United States Army and was stationed at Fort Belvoir, Virginia. On May 12, 1970, he notified his commanding officer of his intention to apply for a discharge as a conscientious objector. Petitioner subsequently filed his application for discharge on May 25, 1970.

In his application for discharge, petitioner stated that his religious beliefs compelled him to regard participation in all war as immoral; that the 'taking of human life is morally wrong and is contrary to the teaching of Jesus Christ.' App. at 19a. ¹ Petitioner had been raised in the Catholic faith and he stated that his religious beliefs derived from his Catholic background and education. He also stated that his beliefs were influenced by his parents, an encounter group, a visit to the Middle East and a meditation class he had attended. According to petitioner, when he received his commission in 1967 he had 'misgivings about accepting it while the war in Vietnam continued' but he did not consider himself to be a conscientious objector. App. at 21a. He had been moving toward a 'pacifist position' for some time, but it was not until beginning active duty that he realized he was opposed to all war. He was 'torn between (his) obligation to country and a desire to remain true to (his) convictions.' After coming on active duty, he 'realized that to be consistent to (him)self and (his) religious beliefs (he) could not participate in the military at all.' Id. at 23a. ² Thirteen letters of recommendation were appended to petitioner's application attesting to petitioner's religious beliefs and sincerity.

Pursuant to Army Regulation 635--20, petitioner was interviewed by a chaplain, a psychiatrist, and an officer of at least grade 0--3 experienced in conscientious objection applications. The chaplain found petitioner to be sincere in his religious beliefs but did not state reasons to support this conclusion. Petitioner was found to be free from mental disturbance by the psychiatrist. Lieutenant Colonel Howard interviewed petitioner twice and concluded that petitioner was 'totally insincere, his professions of religious pacifism (had) no real substance, and he (was) making application for a discharge as a conscientious objector solely for his own personal gain.' App. at 47a. Lt. Col. Howard reached this conclusion because petitioner had admitted he enrolled in graduate school 'more or less' to avoid active duty, because he failed to attend law school classes without notifying the military of his change in status and because his beliefs had been influenced by a pacifist encounter group. Petitioner was also interviewed by Major Phillip Custer, petitioner's student supervisor, who found petitioner to be insincere because he had voluntarily participated in the ROTC, because his beliefs had matured in only one month of military service and because they represented a complete reversal from his upbringing as the son and grandson of professional military officers.

Thereafter, petitioner's application was forwarded to Colonel Sinko, Secretary at Fort Belvoir. Col. Sinko did not interview petitioner but did study his application and recommended that the application be denied. The application was then forwarded to Brigadier General Hunt, Assistant Commandant of Fort Belvoir, and to Major General Gribble, Post Commander and Commandant, neither of whom interviewed petitioner. Both Gen. Hunt and Maj. Gen. Gribble recommended disapproval without stating reasons for their recommendations. These negative recommendations were submitted without petitioner's knowledge.

On June 17, 1970, the Army Conscientious Objector Review Board denied petitioner conscientious objector status on the sole ground that he did not sincerely hold the views he professed in his application. The Board did not interview petitioner but based its conclusion on the reports and recommendations of Lt. Col. Howard, Maj. Custer, Col. Sinko, Brig. Gen. Hunt and Maj. Gen. Gribble. On January 27, 1975, ³ petitioner commenced the instant action in the United States District Court for the District of New Jersey, which denied Shaffer's petition because it found a basis in fact to support the Board's determination of insincerity.

II

Our standard of review of the conscientious objector claims of active military personnel, as in the case of preinduction conscientious objector claims presented to local draft boards, is the narrow one of whether there is a basis in fact for the military's finding that an applicant has not presented a valid conscientious objector claim. Smith v. Laird, 486 F.2d 307, 309 (10th Cir. 1973); United States ex rel. Checkman v. Laird, 469 F.2d 773, 778 (2d Cir. 1972); see United States v. Seeger, 380 U.S. 163, 185, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965); cf. Scott v. Commanding Officer, 431 F.2d 1132, 1138 (3d Cir. 1970).

To qualify under AR 635--20 for a discharge from the armed forces as a conscientious objector, ⁴ an applicant must establish that he is opposed to participation to war in any form; ⁵ that his opposition to war is rooted in 'religious training and beliefs' as defined in Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970) and in United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965); that his beliefs are sincerely held; ⁶ and that his beliefs did not become fixed until after entry into service. ⁷ The Board did not find, and the Army does not now contend, that petitioner's professed beliefs failed to meet the tests of Welsh and Seeger or that those beliefs did not 'crystallize' after his entry into service. Instead, the Board denied petitioner's application because it found that petitioner did not sincerely hold the views that he professed in his application.

Because petitioner has established a prima facie case of entitlement to a discharge, it is incumbent on the Board to point to facts in petitioner's record to support its finding of insincerity. Smith v. Laird, 486 F.2d 307, 310 (10th Cir. 1973). ⁸ While we realize that sincerity is, of course, a subjective state of mind, Witmer v. United States, 348 U.S. 375, 381--82, 75 S.Ct. 392, 99 L.Ed. 428 (1955), the Board is not free merely to disbelieve petitioner. A mere suspicion or surmise as to an applicant's motivation is not a basis in fact. Dickinson v. United States, 346 U.S. 389, 397, 74 S.Ct. 152, 98 L.Ed. 132 (1953); Helwick v. Laird, 438 F.2d 959, 963 (5th Cir. 1971). The Board 'must show some hard, reliable, provable, facts which would provide a basis for disbelieving the applicant's sincerity, or it must show something concrete in the record which substantially blurs the picture painted by the applicant.' Smith v. Laird, supra at 310; United States ex rel. Checkman v. Laird, 469 F.2d 773, 778 (2d Cir. 1972); Helwick v. Laird, supra at 963.

The Board set forth the reasons for its finding of insincerity in three lettered paragraphs. We shall examine them seriatim.

In paragraph a, the Board stated:

LTC N. A. Howard, Jr., an officer knowledgeable in policies and procedures relating to conscientious objector matters and before whom Shaffer appeared, concluded that Shaffer is not sincere. 'LT Shaffer admits he enrolled in graduate school to 'more or less' avoid active duty. His failure to actually attend classes, except for one week, subsequent to June 1968, and failure to notify military authority of his status until the Spring of 1969, indicates a covert attempt to delude the authorities and avoid military service. By these actions, Lt. Shaffer exhibited tendencies of questionable character and integrity and a capacity to overlook truth and responsibility for personal gain. . . . After two interviews with LT Shaffer and a careful review of all supporting documentation, I am convinced he is totally insincere, his professions of religious pacifism have no real substance, and he is making application for conscientious objection solely for his own personal gain.'

The only 'facts' contained in this paragraph are that petitioner admitted that he enrolled in graduate school 'more or less' to avoid active duty and that he failed to ...