Stano v. Schlesinger, 4-73 Civ. 330.

• Decision Date: 23 November 1973
• Docket Number: No. 4-73 Civ. 330.,4-73 Civ. 330.
• Parties: Charles Edward STANO, Petitioner, v. James SCHLESINGER, Secretary of Defense, et al., Respondents.
• Court: U.S. District Court — District of Minnesota

367 F. Supp. 451

Charles Edward STANO, Petitioner, v. James SCHLESINGER, Secretary of Defense, et al., Respondents.

No. 4-73 Civ. 330.

United States District Court, D. Minnesota. Fourth Division.

November 23, 1973.

Brian Solem, St. Paul, Minn., for petitioner.

Robert G. Renner, U. S. Atty., by Stephen G. Palmer, Asst. U. S. Atty., for respondents.

NEVILLE, District Judge.

Petitioner in this action, Lance Corporal Charles E. Stano, is a member of the United States Marine Corps Reserve. He has presented a writ of habeas corpus to this court claiming that he should be released from his Marine duties because he is a conscientious objector. 28 U.S.C. § 2241; Scaggs v. Larsen, 396 U.S. 1206, 90 S.Ct. 5, 24 L.Ed.2d 28 (1969). When he brought this petition the Marine Corps already had denied Stano's request and there is no contention that he failed to exhaust his administrative remedies. Both petitioner and the government have moved this court for summary judgment based on the record compiled by the Marine Corps in disposing of his request for release.

Corporal Stano entered the service on or about April 18, 1971. He apparently volunteered, and his service contract required him to attend (1) a period of basic training, (2) six annual two week training courses, and (3) monthly drill assemblies for six years. Shortly after he took the oath Corporal Stano's father died, and both sides seem to agree that this affected the Corporal deeply. However, he did complete the rigorous basic training period successfully. After he returned home, and it became his duty to attend monthly drill assemblies, Corporal Stano claims that his religious beliefs crystallized and he submitted a request to Marine authorities for release from his remaining service commitment on the grounds that he had come to believe that he was conscientiously opposed to violence and war. Although the Corporal admitted that he had not held these beliefs upon his entry into the Marine Corps, when he petitioned for release he claimed his commitment was so deep as to preclude alternative service.¹ In a written statement Corporal Stano indicated that his father's death made him painfully aware of what death was, and this was a motivating factor in his decision that he could no longer be a part of the armed forces.

According to Marine Corps procedure several officers talked with Corporal Stano and evaluated his request. Colonel B. B. Woolsey was one of these officers and, although his report is equivocal, it seems to indicate that he recommended disapproval of the request because he did not feel that Corporal Stano sincerely held his professed religious beliefs. It should be noted that the Colonel did state that he felt Corporal Stano was sincere in his desire to be separated from the military. However, on reading the Colonel's comments as a whole, it is apparent that the Colonel thought that the loss of his father was the reason Corporal Stano sought a release from the Service, and not because of any deeply held religious conviction.

A military psychiatrist talked with Corporal Stano and came to the conclusion that the corporal's release request was based upon an "exaggerated grief reaction." He too felt that the loss of his father precipitated the corporal's release request and not any deeply held religious beliefs. The doctor wrote:

In my opinion, this man is attempting to strike out at the world because of his bereavement, which coincidently occurred at the exact time of his entering the military. He now attempts to manipulate the military, and thereby work out some of his anger over his acute loss.

The doctor also found that there was no psychiatric abnormality which would affect Corporal Stano's application for conscientious objector status.

Another officer, who had talked with Corporal Stano when he registered for Selective Service and his original enlistment, also indicated that the corporal's desire for a discharge is sincere. But he also apparently found that Corporal Stano's professed aversion to violence was insincere. On this issue the officer termed Corporal Stano "indecisive."

Pursuant to Marine Corps regulations a hearing was scheduled to investigate the request. The hearing was held in December, 1972. Corporal Stano was present accompanied by counsel. A report of the hearing was made and Corporal Stano was allowed to respond to this report. The report indicated that "his motivation for his present course of action is based on personal expediency and a lack of maturity." The report based this conclusion upon several facts. First, Corporal Stano's statements at various times were inconsistent. For instance, in his written statement Corporal Stano said:

I am not currently an active member of any religious sect or organization. I was baptized as a Catholic, but I presently have no ties in the Catholic Church and I am not active in the Catholic Church. I have had nothing to do with the Catholic Church since I attended parochial school.

Yet at the hearing he impeached this statement by saying that he attended church every Sunday and has done so all his life.² Second, the testimony given by Corporal Stano at his hearing was primarily antimilitary and not directed toward describing his non-violent beliefs. This bolstered the conclusion that Corporal Stano simply did not want to continue to be associated with the unpleasantness of military duty. Third, in response to a question about whether he felt any obligation to fulfill the conditions of his service contract Corporal Stano responded that "a signature is only a signature". The hearing officer felt this reflected immaturity and irresponsibility.

Based on the opinions of the officers who interviewed Corporal Stano, the report of the hearing officer, and Corporal Stano's written and verbal statements the Commandant of the Marine Corps denied his request to be reclassified a conscientious objector. In support of this decision the Commandants' letter gave reasons, but the basis for the decision was:

While the evidence of record indicates that you object to continued military service, it does not support a conclusion that you have a firm, fixed and sincere objection to participation in war in any form or to the bearing of arms.

The letter also indicated that although Corporal Stano had stated at length his dis-affection for the military, he failed to clearly define what he did believe in, or the basis for his opposition to participation in war or bearing arms. The letter concluded:

Your application is singularly devoid of any evidence indicating that your beliefs are held with the strength of traditional religious convictions.

Simply put, the denial was based on a finding of a lack of sincerity.³

Numerous cases have settled the standard to be applied in passing on the motions presently before the court: if there is a basis in fact⁴ for the finding made by the Marine Corps then this court must allow that finding to stand. Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567 (1946); Cox v. United States, 332 U.S. 442, 68 S.Ct. 115, 92 L.Ed. 59 (1947); United States v. Abbott, 425 F.2d 910 (8th Cir. 1970).⁵ And it is also clear that a finding of insincerity on the part of the applicant may be a proper basis in fact for a denial of conscientious objector status. Witmer v. United States, 348 U.S. 375, 75 S.Ct. 392, 99 L.Ed. 428 (1955). In fact, in discussing the standard to be applied the Supreme Court, admitting it dealt with an area where the confines are difficult to enunciate, stated that this basis for denial was clear:

The two groups of registrants that obviously do fall within these exclusions from the exemption are those whose beliefs are not deeply held and (another group).

Welsh v. United States, 398 U.S. 333, 342, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970).⁶ And it is also clear that the existence of inconsistent statements by the person claiming conscientious objector status may contradict the claim and be the basis for a denial. Witmer v. United States, supra; United States v. Abbott, 425 F.2d 910, 915 (8th Cir. 1970).

In deciding whether the Marine Corps had a basis in fact for its decision this court may consider the entire record before it. United States v. Rutherford, 437 F.2d 182, 183 (8th Cir. 1971); United States v. Abbott, supra, 425 F.2d at 914 n. 5; cf. Cox v. United States, supra; Tyrrell v. United States, 200 F. 2d 8 (9th Cir. 1952), cert. denied, 345 U.S. 910, 73 S.Ct. 646, 97 L.Ed. 1346 (1953).⁷ In that record, there must be some affirmative evidence indicating insincerity or bad faith to rebut petitioner's claim. United States v. Owen, 415 F.2d 383, 389 (8th Cir. 1969). The military cannot merely state that its officers disbelieved the claimant "without affirmative evidence to measure contradiction." United States v. Abbott, supra, 425 F.2d 910, 913 n.4.

Thus it appears that the standard is one which must be adhered to rigorously. However, this court is of the opinion that in this case the Marine Corps has fulfilled this standard. There are contradictions apparent on the record here. The petitioner, Corporal Stano, made inconsistent statements as to his relationship with the Catholic Church, and also as to his willingness to do alternate service. Also the fact that his general testimony at his hearing was primarily antimilitary might be termed inconsistent with the principle that he guided his life under the affirmative code of non-violence. There are other parts of the record which do not harmonize but the court is satisfied that these contradictions, as well as other facts discussed earlier in this opinion form a sufficient basis in fact for the Marine Corps' denial. Petitioner cites many facts which support his sincerity. And the court is aware that all the facts in a case never favor one position. Yet these facts are not determinative in a case such as this where there are independent indicia of insincerity and the court is determining a "basis in...