Silverthorne v. Laird

• Decision Date: 22 May 1972
• Docket Number: No. 71-3536.,71-3536.
• Citation: 460 F.2d 1175
• Parties: Private Donald SILVERTHORNE, Jr., Petitioner-Appellant, v. Melvin LAIRD, Secretary of Defense, et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

460 F.2d 1175 (1972)

Private Donald SILVERTHORNE, Jr., Petitioner-Appellant, v. Melvin LAIRD, Secretary of Defense, et al., Respondents-Appellees.

No. 71-3536.

United States Court of Appeals, Fifth Circuit.

April 14, 1972.

Rehearing and Rehearing May 22, 1972.

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Maury Maverick, Jr., San Antonio, Tex., Ernest Altgelt, III, New York City, for petitioner-appellant.

William S. Sessions, U. S. Atty., Henry Valdespino, Asst. U. S. Atty., San Antonio, Tex., for respondents-appellees.

Before RIVES, COLEMAN and DYER, Circuit Judges.

Rehearing and Rehearing En Banc May 22, 1972.

RIVES, Circuit Judge:

On May 24, 1971, the Conscientious Objector Review Board of the United States Army (CORB) denied appellant Silverthorne's application for discharge from the Army, sought pursuant to Army Regulation 635-20, as a 1-O conscientious objector. Thereafter, Silverthorne sought habeas corpus relief in the United States District Court for the Western District of Texas. In his petition to that court, Silverthorne advanced two alternative theories upon which he claimed a right to be discharged. First, he argued that there was no basis in fact for denying his application. Second, Silverthorne alleged that the Army should have discharged him pursuant to Army Regulation 635-212 (unsuitable or unfit for further military duty). As to both claims the court denied relief, finding that there was a basis in fact for denying him a 1-O classification and that the court was without jurisdiction to consider the second claim. On November 9, 1971, Silverthorne filed his notice of appeal. On March 14, 1972, two days prior to oral argument of Silverthorne's cause to this Court, the district judge issued a written opinion, 341 F.Supp. 443, in which he thoroughly discussed the rationale in support of his earlier order denying habeas corpus relief. We are in accord with his judgment and affirm.

Silverthorne has moved that this Court refuse to consider the district court's March 14 opinion. His contention is that the filing of an opinion subsequent to the institution of this appeal violates the rubric that an appeal "divests the district court of authority to proceed further with respect to the case, except in aid of the appeal * * *." 9 Moore's Federal Practice ¶ 203.11 (footnote omitted). We do not agree that the district judge offended the above-stated principle. His written opinion in no way contradicts his earlier order denying habeas corpus relief. Indeed his amplified views are of great aid in this appeal. We are thus able to examine the case with a thorough understanding of the lower court's posture.

In short, we subscribe to the following analysis of the rule against district court activity subsequent to the taking of an appeal:

"In general, the district court should have full authority to take any steps during the pendency of the appeal that will assist the court of appeals in the determination of the appeal. Restrictions on the power of the district court that are grounded in nothing more than the technical consideration that jurisdiction `passes\' from it upon the filing of the notice of appeal are impractical and unwise. Dictum in Philadelphia Marine Trade Ass\'n v. International Longshoremen\'s Ass\'n (CA3d, 1966) 365 F2d 295, rev\'d on other grounds (1967) 389 US 64, 88 S Ct 201, 19 L ed2d 236, to the effect that the filing of a notice of appeal on the day judgment was entered and before the trial court had entered findings of fact and conclusions of law precluded the court from entering such findings is an example of a technical application of the general rule which serves no useful purpose."

9 Moore's Federal Practice ¶ 203.11 n. 2. As such we conclude that the lower court had the necessary jurisdictional power to issue its March 14 opinion. Ordinarily, of course, a district court should not file its opinion in such close proximity to oral argument of the case on appeal. Thus, in order to avoid any suggestion of unfairness or prejudice, we have afforded both parties to this case ample time in which to file additional briefs discussing the lower court opinion. Having received those briefs we now proceed to the merits of the appeal.

I. Conscientious Objector Claim

A. The Law

To qualify for discharge from the Armed Services as a conscientious objector, the applicant must meet the same test as one seeking draft classification as a conscientious objector; that is, he must show:

(1) That he is opposed to war in any form, Gillette v. United States, 1971, 401 U.S. 437, 91 S.Ct. 828, 28 L.Ed.2d 168;

(2) that his objection is grounded in religious principles as construed in Welsh v. United States, 1970, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308, and United States v. Seeger, 1965, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733; and

(3) that his convictions are sincere, Witmer v. United States, 1955, 348 U. S. 375, 75 S.Ct. 392, 99 L.Ed. 428.

Once the applicant has made a prima facie showing that he has satisfied this tripartite test, it becomes the Army's burden to refute the claim.

AR 635-20 sets out the procedure for processing an application for discharge as a conscientious objector. According thereto, the applicant is to be given an interview, if he so desires. Thereafter the applicant's commanding officers are asked to review the case and recommend a disposition to the CORB. Together with those recommendations, the CORB considers "any other remarks that may be pertinent. Where applicable official records in the applicant's Military Personnel Record Jacket 201 file will be cited or attached to the file as inclosure." AR 635-20 ¶ 4b(5). Also the commanding officers are to state their reasons for the recommendations which they tender. AR 635-20 ¶ 4b(4) (b)1.

Where the CORB rejects the applicant's request for a 1-O classification (conscientious objector discharge), its decision is subject to review in federal court by way of habeas corpus proceedings. The scope of such review is severely limited. The CORB judgment must be sustained if the court can discern any "basis in fact" for it. Estep v. United States, 1946, 327 U.S. 114, 122, 66 S.Ct. 423, 90 L.Ed. 567. However, where the claimed exemption is denied on the ground that the applicant lacks sincerity, disbelief will not suffice "unless there is some affirmative evidence to support the rejection of the claimed exemption or there is something in the record which substantially blurs the picture painted by the registrant and thus casts doubt on his sincerity." Kessler v. United States, 5 Cir. 1969, 406 F.2d 151, 156 (citation omitted) (emphasis in original). As this Court has said in Helwick v. Laird, 5 Cir. 1971, 438 F.2d 959, 963: "There must be some facts in his application — hard, provable, reliable facts — that provide a basis for disbelieving the claimant."

Though it is difficult definitely to ascertain from his brief or from oral argument, Silverthorne seemingly seeks reversal of the district court with respect to his conscientious objector claim on two theories: (1) that the CORB could not properly consider certain statements made by him, and that absent such consideration no basis in fact existed for the denial of his claim; and (2) that even if the CORB could consider the statements at issue there was not sufficient basis in fact to deny his claim. Before considering the merits of his attack some view of the facts is in order.

B. The Factual Setting.

On August 13, 1970, Silverthorne was drafted into the United States Army. After spending a short time in basic training, he applied for, and received, an in-service conscientious objector classification (1-A-O, noncombatant).¹ Thereafter, on January 1, 1971, he was transferred to Fort Sam Houston, Texas, to receive medical corps training.

On January 6, 1971, Silverthorne gave notice of his intent to apply for a 1-O discharge. On January 14, 1971, he was requested to, and did, fill out both an Armed Services Security Questionnaire and a Statement of Personal History form. During the course of pleading before the district court, Silverthorne alleged that he was asked to complete these forms pursuant to some rather unusual instructions. According to Silverthorne, a staff sergeant told him that the copies of these forms which he had filled out upon entering the Service were missing and that in order to complete his 201 file he was to fill them out again. However, he was not to fill them out according to his present state of mind but according to the state of mind he possessed on the date he entered the Service.

In filling out the forms in question, Silverthorne made several important remarks. On his Statement of Personal History he said:

"I am a member of a facist organization, the United States Government. S.D.S. Students for a Democratic Society and Y.S.A. Young Socialists Alliance both propose violent revolution. I am affiliated with both as a member and employee (writer). I engage myself in the activities of these organizations and support them financially. * * *

"I believe in the organizing of individuals to rise up against the state. I have always organized (i. e. first SDS Chapter at Kent State U) people and will continue to do so. I have taken part in attacks on Justice Dept. Nov. 15, 1969, Chicago police Oct. 1969, Kent State ROTC Bldg. I show no loyalty to this govt. I\'m 1-A-O applying for 1-O discharge and refuse to harm people in the name of this country."²

On his Security Questionnaire, Silverthorne stated:

"I am presently a member of the `Young Socialist Alliance\' and `Students for a Democratic Society\' (Weatherman branch). I have written articles and supported these organizations both financially and spiritually the past several years. I attend their meetings whenever possible, correspond with them, and support them fully. I serve their cause in whatever capacity I can. I have a subscription to `Ramparts\' & `Liberation\' and buy the `Militant\'

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