Smith v. Laird, 73-1198

• Decision Date: 19 October 1973
• Docket Number: 73-1199.,No. 73-1198,73-1198
• Parties: Richard D. SMITH, Petitioner-Appellee, v. Melvin LAIRD, the Secretary of Defense, et al., Respondents-Appellants,
• Court: U.S. Court of Appeals — Tenth Circuit

486 F.2d 307 (1973)

Richard D. SMITH, Petitioner-Appellee, v. Melvin LAIRD, the Secretary of Defense, et al., Respondents-Appellants,

Nos. 73-1198, 73-1199.

United States Court of Appeals, Tenth Circuit.

Submitted October 2, 1973.

Decided October 19, 1973.

William A. Norris, Cummington, Mass., for petitioner-appellee.

Victor R. Ortega, U. S. Atty., for respondents-appellants.

Before LEWIS, Chief Judge, and SETH and McWILLIAMS, Circuit Judges.

PER CURIAM.

This appeal is taken by the United States from an order of the United States District Court for the District of New Mexico, 353 F.Supp. 446, granting Captain Richard D. Smith's petition for a writ of habeas corpus and discharging him from the Air Force as a conscientious objector. The writ was granted upon the express condition that Doctor Smith perform alternative service under the civilian work program administered by the Selective Service System for the duration of his active duty obligation. Doctor Smith appeals from that portion of the order making his discharge conditional. His discharge has been stayed pending appeal.

Captain Smith voluntarily entered the Air Force in June 1967 upon graduation from the University of Massachusetts. He began active duty the following September at the Georgetown University School of Medicine under a program administered by the Air Force Institute of Technology (hereinafter AFIT).¹ He was graduated from medical school in May, 1971 and in July, 1971 he began a one year Air Force sponsored internship in pediatrics at the University of Connecticut Affiliated Hospitals.

On April 27, 1971 Captain Smith was notified by letter that he was ineligible for an Air Force sponsored civilian or military residency, and that, accordingly, he should anticipate assignment to an Air Force medical facility upon completion of his internship in July of 1972. He was informed that he would be contacted in the fall of 1971 as to the geographical assignment he preferred, and as to his preference for assignment as either a Flight Medical Officer or a General Medical Officer.

In August, 1971 Captain Smith wrote to the Directorate of Professional Services, Office of the Surgeon General, USAF and stated that he had had previous correspondence with that Office and that he understood he would probably be assigned as a General Medical Officer following his internship. He requested information on whether he might possibly be able to continue in pediatrics. He received a response on August 17, 1971 in which was enclosed a copy of the letter of April 27, 1971, and which quoted the paragraphs in that letter informing him that he was ineligible for a sponsored residency. He was told that if there were any changes in his status, he would be contacted by AFIT.

On October 1, 1971 Captain Smith took his oath of office and was sworn in as a member of the Air Force Medical Corps. He took the oath on the advice of counsel. On the same day he notified the Air Force by letter of his intention to seek classification as a conscientious objector pursuant to Air Force Regulation 35-24 (hereinafter AFR 35-24).² AFR 35-24 implements for Air Force personnel the procedures set forth in Department of Defense Directive 1300.6 (hereinafter DoD 1300.6)³ for classification of in-service applicants as conscientious objectors.

Pursuant to the requirements of AFR 35-24, Captain Smith was interviewed by a psychiatrist, a chaplain, and an investigating officer.

The investigating officer held a three-hour interview during the course of which he delved extensively into the underlying basis for Captain Smith's claim that he was entitled to classification as a conscientious objector. On March 6, 1972 the investigating officer recommended that Captain Smith's application be denied. His recommendation was adopted up through the chain of review, and on August 22, 1972 the Secretary of the Air Force disapproved the application. Thereafter, Captain Smith sought and was granted by the district court on January 3, 1973 a writ of habeas corpus securing his discharge from the Air Force.

Two issues are presented for our review: Whether there exists in the record a basis in fact for the Secretary's denial of Captain Smith's application for classification as a conscientious objector, and, if not, whether the district court could properly grant the writ on the express condition that Captain Smith serve the remainder of his active duty obligation under a civilian work program administered by the Selective Service System.

BASIS IN FACT

The scope of review in a case such as this is the narrow one of 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. United States ex rel. Robinson v. Laird, 457 F.2d 741 (7th Cir. 1972); Polsky v. Wetherill, 455 F.2d 960 (10th Cir. 1972); Rothfuss v. Resor, 443 F.2d 554 (5th Cir. 1971); United States ex rel. Donham v. Resor, 436 F.2d 751 (2nd Cir. 1971).

To qualify for discharge from the armed forces as a conscientious objector, an applicant must establish that:⁴

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);

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 States v. Seeger, 380 U.S. 163, 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).

See also Clay v. United States, 403 U.S. 698, 91 S.Ct. 2068, 29 L.Ed.2d 810 (1971).

Captain Smith's application for classification as a conscientious objector was ostensibly denied on the ground that he failed to establish that his beliefs were sincerely held.

The government concedes that Captain Smith established a prima facie case for classification as a conscientious objector. Accordingly, it is incumbent upon the government to show a basis in fact in the record for the denial of his application. A basis in fact will not find support in mere disbelief or surmise as to the applicant's motivation. Dickinson v. United States, 346 U.S. 389, 74 S.Ct. 152, 98 L.Ed. 132 (1953); Helwick v. Laird, 438 F.2d 959 (5th Cir. 1971); Bates v. Commander, First Coast Guard District, 413 F.2d 475 (1st Cir. 1969). Rather, the government 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. United States ex rel. Checkman v. Laird, 469 F.2d 773 (2nd Cir. 1972); Lovallo v. Resor, 443 F.2d 1262 (2nd Cir. 1971); Helwick v. Laird, supra.

Sincerity is, of course, a subjective state of mind, and as such it does not easily lend itself to proof or disproof. The basis in fact test is, therefore, much easier to state than it is to apply to a given set of facts. Nevertheless, we have carefully reviewed the record and agree with the district court that there exists no basis in fact in the record to support the Secretary's denial of Captain Smith's application.

Preliminary to a discussion of the investigating officer's report and the reasons upon which he questioned Captain Smith's sincerity, it is pertinent to quote from the findings of the psychiatrist and the chaplain who personally interviewed Captain Smith.

The psychiatrist stated:

". . . . I find the patient to be completely free of any psychiatric disease.

"2. In addition, after a lengthy interview, I feel the patient\'s beliefs are sincere and well-founded, and I have no reason to believe it could be questioned from a psychiatric stand-point."⁵

The chaplain's report read in part:

"In my opinion, Captain Smith is sincerely concerned about his role in society and honestly feels that he could not serve in any military capacity. While I feel that the reasons outlined above motivating him to become a conscientious objector are impressive and honestly portrayed, I also feel that his overall outlook lacks refinement in presentation and in content. In some measure, Captain Smith\'s demanding schedule can account for this shortcoming. I believe that there is no duplicity in Captain Smith\'s intent. On the basis of one interview, however, I cannot make any statements regarding the depth of Captain Smith\'s convictions. I am favorably impressed, however, by his willingness to serve in public medicine or repay his educational costs. Could such an arrangement be made, I would have no reason to doubt Captain Smith\'s sincerity or depth of conviction."⁶

To support his recommendation that Captain Smith's application be denied, the investigating officer essentially relied on two factors. The first factor was Captain Smith's taking his oath of office on the same day he notified the Air Force of his intention to seek classification as a conscientious objector. The second factor was the timing of the application in view of the April 27, 1971 letter.

The investigating officer stated as to the first factor:

". . . It is difficult for me to understand how an individual can take an oath, freely and without mental reservation, to defend the Constitution of the United States against all enemies, the same day he seeks status as a conscientious objector."⁷

As noted previously, however, Captain Smith took the oath of office on the advice of counsel and in his rebuttal letter to the report of the investigating officer, Captain Smith explained such superficially inconsistent actions as follows:

". . . As I stated in the 0-3 hearing, during the first several weeks to as late as two months following my realization as a Conscientious Objector, I was very much torn between my need to live in accordance with those beliefs which formed the basis of my conscientious objection and my feelings of obligation to the Air Force for having sponsored my education through medical

...