Singer v. Secretary of Air Force

• Decision Date: 04 December 1974
• Docket Number: Civ. A. No. C-5543.
• Citation: 385 F. Supp. 1369
• Parties: Petition of Donald A. SINGER, Lt., USAFR, Petitioner, v. SECRETARY OF the AIR FORCE and Benjamin S. Catlin, III, Col., USAF, Commander, Headquarters Air Reserve Personnel Center, Denver, Colorado, Respondents.
• Court: U.S. District Court — District of Colorado

385 F. Supp. 1369

Petition of Donald A. SINGER, Lt., USAFR, Petitioner, v. SECRETARY OF the AIR FORCE and Benjamin S. Catlin, III, Col., USAF, Commander, Headquarters Air Reserve Personnel Center, Denver, Colorado, Respondents.

Civ. A. No. C-5543.

United States District Court, D. Colorado.

December 4, 1974.

COPYRIGHT MATERIAL OMITTED

Rudolph Schware by Sander N. Karp, Denver, Colo., for petitioner.

James L. Treece, U. S. Atty., Denver, Colo., for respondents.

OPINION AND ORDER

CHILSON, District Judge.

This is a habeas corpus action under 28 U.S.C. § 2241, challenging the decision by the Secretary of the Air Force to disapprove petitioner's application for discharge as a conscientious objector.

Petitioner accepted a commission in the United States Air Force on April 10, 1972, while in his third year at the University of Colorado Medical School. He entered the Air Force on May 18, 1972, under the Senior Medical Student Program, 32 C.F.R. § 905.14, which provides financial sponsorship for senior medical students. In return for this financial sponsorship, petitioner incurred an active duty commitment of three years commencing after completion of medical school. Upon completing medical school, petitioner was assigned to the Air Force Reserves in order to complete a one-year internship ending in July 1974; upon completion of this internship, petitioner is obligated to fulfill his active duty commitment.

Petitioner submitted an application for discharge as a conscientious objector on January 22, 1973, along with a tender of resignation from the Air Force. In his application, petitioner asserted, as required by 32 C.F.R. § 888e.10 (A.F.R. 35-24), that he was opposed to war in any form; that his opposition was based on his religious training and belief; and that his beliefs were sincerely and deeply held.

Pursuant to 32 C.F.R. §§ 888e.20-888e.24, petitioner was interviewed by a psychiatrist, Major G. Paul Hlusko, a chaplain, Lt. Colonel Donald E. Howell, and an investigating officer, Major Duncan L. Dieterly. The psychiatrist found petitioner to be free of psychiatric disorder. The chaplain recommended approval of petitioner's application as follows:

"1. Lieutenant Singer's desire for CO status is a result of several months of philosophical and religious `soul searching'. He has reached the point where he sincerely feels he cannot participate in the military service, not even as a non-combatant physician.

"2. I am thoroughly convinced this man's convictions are such that the Air Force will be completely justified in separating him as a bona fide Conscientious Objector."

Letter from Lt. Colonel Donald E. Howell, March 26, 1973.

The investigating officer also recommended approval of petitioner's application after holding a full hearing:

"After a thorough review of the entire record accumulated in this case, I must conclude that Lt. Singer is sincere and honest in his religious and moral beliefs and that expediency or avoidance of military service is not the basis for his claim. His strong beliefs were generated out of recent experiences that occurred after he accepted his commission. The inconsistencies in his personal theology and philosophy do not detract from his sincere belief in the `ultimate wrong' of killing, war, and military service. The character evaluations all support the serious, reflective demeanor of the applicant. All the information available in this case indicates that Lt. Singer is opposed to war in all forms based upon a religious and moral belief that is sincerely and honestly held. Therefore, I recommend that Lt. Singer be classified as a I-O conscientious objector as defined under the criteria established by AFR 35-24."

Report of Hearing Officer, April 4, 1973, at pp. 7-8.

Pursuant to 32 C.F.R. §§ 888e.26-28, the record including the investigating officer's report, was forwarded for action at the "decision level." Despite the unanimous recommendations for approval by all of the subordinate interviewing officers, the reviewing officers at the "decision level" all recommended disapproval of petitioner's application. The reasons given for these recommendations of disapproval included statements doubting the depth of petitioner's beliefs and his sincerity, and statements that petitioner's acts were inconsistent with his stated beliefs. The Secretary of the Air Force ultimately denied petitioner's application on November 2, 1973, as follows:

"He Lt. Singer did not demonstrate that he is conscientiously opposed to participation in war in any form and that his beliefs are founded on religious training and belief or moral and ethical beliefs. Further, his actions are inconsistent with his alleged beliefs, and cast considerable doubt on the depth and sincerity of his claim of conscientious objection."

Thereupon, this petition was filed by petitioner, respondent replied thereto and petitioner traversed the defendant's response. Thereafter, the parties filed briefs in support of their respective contentions.

The jurisdictional bases for this action are alleged to be 28 U.S.C. §§ 1331, 1361, 2241 and 2242. The proper basis for jurisdiction is 28 U.S.C. § 2241, as it has been held that a member of the military is "in custody" within the statutory definition when he is held contrary to a valid claim of conscientious objection. Arlen v. Laird, 451 F. 2d 684, 686 (2d Cir. 1971), on remand, 345 F.Supp. 181 (S.D.N.Y.1972); Rastin v. Laird, 445 F.2d 645 (9th Cir. 1971); Johnson v. Laird, 435 F.2d 493 (9th Cir. 1970); Kern v. Laird, 335 F. Supp. 824, 826 (D.Colo.1971). See generally, Annot., 10 A.L.R. Fed. 15, 59 et seq. See Strait v. Laird, 406 U.S. 341, 92 S.Ct. 1693, 32 L.Ed.2d 141 (1972); Parisi v. Davidson, 405 U.S. 34, 35, 92 S.Ct. 815, 31 L.Ed.2d 17 (1972); Scaggs v. Larsen, 396 U.S. 1206, 90 S. Ct. 5, 24 L.Ed.2d 28 (1969). A member of the reserves is also "in custody" for purposes of 28 U.S.C. § 2241. Kern v. Laird, supra. Thus, the Court has habeas corpus jurisdiction to review the denial of petitioner's application in this case.

The scope of review in a case of this kind has been characterized as the "narrowest known to the law." Cole v. Clements, 494 F.2d 141, 144-145 (10th Cir. 1974); petition for cert. filed September 9, 1974, No. 74-250, 43 U.S.L.W. 3257 (October 29, 1974); Smith v. Laird, 486 F.2d 307, 309 (10th Cir. 1973); Bishop v. United States, 412 F. 2d 1064, 1067 (9th Cir. 1969). The Court is limited to ascertaining "whether there exists in the record a basis in fact for the denial of an in service applicant's application for classification as a conscientious objector." Smith v. Laird, supra, 486 F.2d at 309. See Parisi v. Davidson, supra, 405 U.S. at 35, 92 S.Ct. 815; Estep v. United States, 327 U.S. 114, 122-123, 66 S.Ct. 423, 90 L.Ed. 567 (1946); United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965).

In Smith v. Laird, supra, 486 F. 2d at 309-310, a case strikingly similar to the present case, the Tenth Circuit Court of Appeals set out the criteria which an applicant must establish in order to qualify as a conscientious objector as follows:

"To qualify for discharge from the armed forces as a conscientious objector, an applicant must establish that:

"1. He is opposed to war in any form, Gillette v. United States, 401 U.S. 437, 91 S.Ct. 828, 28 L.Ed.2d 168 (1971); reh. denied, 402 U.S. 934, 91 S.Ct. 1521, 28 L.Ed.2d 869;

"2. His objection is grounded upon religious principles as enunciated in Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L. Ed.2d 308 (1970) and United 85 S.Ct. 850, 13 L.Ed.2d 733 (1965); and

"3. His beliefs are sincerely held, Witmer v. United States, 348 U. S. 375, 75 S.Ct. 392, 99 L.Ed. 428 (1955). footnote omitted)"

See Clay v. United States, 403 U.S. 698, 700, 91 S.Ct. 2068, 29 L.Ed.2d 810 (1971); United States v. Fuller, 497 F. 2d 551 (6th Cir. 1974). Since discharge from the service is a matter of legislative grace rather than constitutional right, Gillette v. United States, supra, 401 U.S. at 461 n. 23, 81 S.Ct. 828; Dickinson v. United States, 346 U.S. 389, 395, 74 S.Ct. 152, 98 L.Ed. 132 (1953), the petitioner bears the burden of establishing at least a prima facie case of conscientious objection under these criteria before he may be awarded a discharge. Cole v. Clements, supra, 494 F.2d at 144-145; Smith v. Laird, supra, 486 F.2d at 310; Fleming v. United States, 344 F.2d 912, 915 (10th Cir. 1965); Swaczyk v. United States, 156 F.2d 17, 19 (1st Cir.), cert. denied, 329 U.S. 726, 67 S.Ct. 77, 91 L.Ed. 629 (1946); Arlen v. Laird, supra, 345 F. Supp. at 185-186. See Dickinson v. United States, supra, 346 U.S. at 395, 74 S.Ct. 152.

As explained in Arlen v. Laird, supra, 345 F.Supp. at 186, "this burden is met when nonfrivolous allegations of fact are presented, and no adverse demeanor evidence has been introduced or culled from the applicant's file. Citing cases." (footnotes omitted). See United States v. Stetter, 445 F.2d 472, 477 (5th Cir. 1971); Lovallo v. Resor, 443 F.2d 1262, 1264 (2d Cir. 1971); Bates v. Commander, First Coast Guard District, 413 F.2d 475, 478 n. 4 (1st Cir. 1969). See also Mulloy v. United States, 398 U.S. 410, 416, 90 S.Ct. 1766, 26 L. Ed.2d 362 (1970) (applying this standard to a case of reopening registrant's initial selective service classification.)^* Under this standard, petitioner has surely met his burden of proof. He has alleged nonfrivolous facts in his application which support the conclusion that he is conscientiously opposed to war in any form on the basis of religious training and beliefs, and that his beliefs are sincerely and deeply held.

In reviewing the denial of conscientious objector applications, the courts uniformly ascribe great weight to the opinions and recommendations of the officers who personally interviewed the applicant in the first instance. Only the interviewing officers are in a position to judge the applicants's credibility, sincerity and depth of conviction...