Tressan v. Laird, 71-1779.

• Decision Date: 25 January 1972
• Docket Number: No. 71-1779.,71-1779.
• Citation: 454 F.2d 761
• Parties: In the Matter of Lieutenant Commander Elliott R. TRESSAN, MC, USNR, 715355/2105, Petitioner-Appellant, v. Hon. Melvin LAIRD, Secretary of Defense, et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

454 F.2d 761 (1972)

In the Matter of Lieutenant Commander Elliott R. TRESSAN, MC, USNR, 715355/2105, Petitioner-Appellant, v. Hon. Melvin LAIRD, Secretary of Defense, et al., Respondents-Appellees.

No. 71-1779.

United States Court of Appeals, Ninth Circuit.

January 25, 1972.

Charles R. Khoury, Jr. (argued), San Diego, Cal., for petitioner-appellant.

Before BROWNING and HUFSTEDLER, Circuit Judges, and FERGUSON,^* District Judge.

PER CURIAM:

Lieutenant Commander Tressan's application for discharge from the service by reason of conscientious objection was denied by the Chief of Naval Personnel ("CNP"). Tressan filed a petition for a writ of habeas corpus. He appeals from an order of the district court denying his petition.

After Tressan had completed his medical internship in 1967, he accepted a commission as a Lieutenant in the Naval Reserve Medical Corps. He participated in the Armed Forces Physician's Appointment and Residency Program and he completed a three-year residency in psychiatry. On July 19, 1970, he began a two-week course at the Field Medical Service School, Camp Pendleton, California, during which time he received training in weapons, weapon firing, and firing tactics. In November 1970, he was notified that he was to report for duty with a division assigned to Viet Nam. The division was withdrawn from Viet Nam shortly thereafter and stationed at Camp Pendleton. Tressan began preparing his conscientious objector application in November. He described in detail the history and development of his conscientious objections. He narrated his religious training, some of his family experiences, his increasing conflict over his duty and his conviction against all killing (particularly arising during his treatment of severely injured military personnel and during his training in weaponry), and finally the resolution of the conflict by filing his application. He volunteered for the kind of work encompassed by the civilian work program of the Selective Service System. Many letters from military associates, long-standing friends, his Rabbi, and the Chaplain who interviewed him were filed in support of his application. The various letters corroborated his narration. All of the writers expressed the view that Tressan was deeply committed to his conscientious convictions. None of the statements by anyone who interviewed him expressed a contrary view.

The CNP, who did not interview him, denied his application. The CNP's letter recites Tressan's military service, refers to Tressan's letter in which he mentioned the experience of his immigrant father during World War I, and states:

"Under the circumstances, your claim to sudden crystallization of your beliefs at this point in your life is not acceptable. Your contention that your conscience suddenly will give you no peace if you are required to function as a doctor in the naval service does not appear reasonable in view of your earlier acceptance of military routine and duties without expression of bar of performance by reason of conscience....

"...

"The facts in your case indicate that your application is not the direct result of deeply felt moral, ethical, or religious prohibition against war in any form, but more aptly is a negative response to an undesirable assignment. Accordingly, your request for discharge is denied."

Tressan made out a prima facie case for...