U.S. ex rel. Foster v. Schlesinger, 623

• Decision Date: 21 July 1975
• Docket Number: No. 623,D,623
• Citation: 520 F.2d 751
• Parties: UNITED STATES of America ex rel. Jeffrey FOSTER, Petitioner-Appellant. v. James R. SCHLESINGER, Secretary of Defense, et al., Respondents-Appellees. ocket 74-2275.
• Court: U.S. Court of Appeals — Second Circuit

Page 751

520 F.2d 751

UNITED STATES of America ex rel. Jeffrey FOSTER, Petitioner-Appellant. v. James R. SCHLESINGER, Secretary of Defense, et al.,

Respondents-Appellees.

No. 623, Docket 74-2275.

United States Court of Appeals, Second Circuit.

Argued Feb. 26, 1975.

Decided July 21, 1975.

Daniel Riesel, New York City, for petitioner-appellant.

Louis G. Corsi, Asst. U. S. Atty., New York City (Paul J. Curran, U. S. Atty., for the Southern District of New York, and Gerald A. Rosenberg, Asst. U. S. Atty., on the brief), for respondents-appellees.

Before LUMBARD, OAKES and TIMBERS, Circuit Judges.

LUMBARD, Circuit Judge:

Jeffrey Foster, a psychiatrist who holds the rank of Lieutenant in the United States Naval Reserve, appeals from an order of the District Court for the Southern District, Kevin T. Duffy, J., denying his petition for a writ of habeas corpus and for an honorable discharge, as a conscientious objector, from the United States Naval Reserve. We reverse.

I. Background.

In February 1966, while completing his premedical studies at Columbia University, Foster enrolled in the Navy's "Ensign 1915" Program for medical students, pursuant to which he received a military deferment enabling him to complete four years of medical school and a one-year internship prior to induction into active military service. As part of the program, Foster accepted an appointment as an ensign in the Medical Corps, Naval Reserve, beginning in September 1966 and agreed to serve twenty-four months on active duty if called by the Secretary of the Navy subsequent to his medical training.

In 1971, after graduating from New York Medical College and serving as a medical intern at the Metropolitan Hospital Center in New York, Foster applied for and received a further deferment under the Navy's "Berry Plan." This deferment would enable him to complete a three-year residency at Mount Sinai Hospital in New York as a psychiatrist.

Under neither the Ensign 1915 Program nor the Berry Plan did Foster receive any pay or tuition assistance, perform any activities normally associated with commissioned service in the Navy, or even don a uniform at any time. He did answer questionnaires sent by the Navy to determine his continued eligibility for a deferment. He also accepted several promotions and was made a Lieutenant on January 29, 1971.

By letter dated September 18, 1973, when Foster's Berry Plan deferment appears to have expired because of completion of his residency earlier than expected, Foster sought to resign from the Naval Reserve as a conscientious objector. He stated that the basis for offering his resignation was his "long-evolving and strongly-held moral and ethical objection to war in all its forms." His beliefs, he wrote, had "solidified " recently to the point where he was no longer able to serve in the military in any capacity.

When the Navy rejected Foster's offer of resignation on March 4, 1974, Foster made a formal application for discharge as a conscientious objector. In support thereof, he submitted a detailed statement of his beliefs. Foster described his beliefs in nonviolence as part of an "ethical code" derived from an "awareness of the remarkable biological uniqueness we have been endowed with." He was not sure whether his early religious training ¹ had influenced his beliefs, but he noted that he had not been a member of any religious organization for many years. He described the development of his beliefs as a search for "fundamental and unifying biologic themes" that could shed light on questions such as "why (man) makes the decisions he does." He saw violence, at the individual or national level, as "the most extreme violation of (the) basic moral directive" that men should not "retard or destroy (their) individual or combined functional integrity and potential capacities. . . . " Foster traced the evolution of his beliefs from his premedical studies at Columbia through his psychiatric residency.

Foster was married in the mid-sixties and has a son who was born in 1969. Along with his wife, Foster participated in peaceful anti-war rallies and campaigns during the Viet Nam war, but in describing in his request for discharge how his beliefs in nonviolence had strengthened, Foster continually referred to his experiences in the practice of medicine. For example, he referred to his experience the past sixteen months working part-time in a methadone clinic. "The treatment of such people," he said "has emphatically shown me that violent behavior is always an abortive, emotionally primitive attempt at problem-solving and communication." He was convinced that war among nations could not be condoned, "any more than violence (can) be supported or encouraged among patients." Foster felt he could not serve in the military, even as a doctor, since he felt that the military's view of a doctor's function was to make ill men combat-ready. Foster viewed his role as a psychiatrist as aimed in part towards directing man's tendencies away from violence.

Foster wrote that his decision to seek a discharge had followed a period of intense introspection in August and September, 1973, which had been prompted by two events. First, he had received a letter from one Captain Trone of the Navy, stating that Foster had not filed the requisite form to continue his Berry Plan deferment, and that unless such a form was filed within ten days, Foster would be called immediately to active duty. The Captain's letter allegedly made Foster think seriously about the active duty to which he had committed himself. In the same period, Foster had been treating a twenty-year old woman who knew she was dying of leukemia. Foster stated that "From treating this woman in particular, as well as from later work with other dying patients . . . I learned by painful personal experience a final repugnance for any unnecessary, man-made cause of death such as war implicitly involves."

Accompanying his statement of beliefs, Foster submitted letters from his wife, several friends, and Dr. Joel Markowitz, a psychiatrist whom Foster had known and visited for fourteen years. These letters attested to the strength of Foster's convictions and to his self-examination in August and September 1973 as to whether he should seek discharge as a conscientious objector from the Naval Reserve.

Pursuant to Navy regulations for processing Foster's application for discharge, Foster was interviewed by a Navy psychiatrist, Dr. Thomasson, and then a Navy chaplain, Commander A. J. Otto. 32 C.F.R. §§ 730.18(g), (h) (1974). Dr. Thomasson found no psychiatric disorders warranting treatment or disposition through medical channels. Commander Otto found Foster "weakly sincere in his convictions that he can never participate in any act of war." He also described Foster's conscientious objector claim as "based upon a rare personal moral code, which even he has trouble in defining."

A hearing ² was held before the investigating officer assigned to the case, Commander J. C. Sweeney, ³ on May 31, 1974. Foster was represented by retained counsel. Dr. Markowitz testified at length. He stated in part that Foster had anti-war beliefs prior to his enlistment in 1966 in the Ensign 1915 Program. He also said that at some time Foster had mentioned that "he was supposed to go in the Navy but there was some alternative and I don't think he ever considered himself in the Navy from that time until this very time. He just pushed it out of his mind." ⁴ Markowitz testified that he thought the prospect of activation had crystallized Foster's views in 1973, and that had Foster been presented with this situation earlier, something similar would have happened. Foster also testified, elaborating upon and explaining matters discussed at length in his application for discharge.

Commander Sweeney issued a very brief report, based upon the entire record on June 21, 1974. He stated, without elaboration, that "the minimum objective standards now established by law and regulation for conscientious objector discharge have been met." He gave his opinion that Foster sincerely held ethical beliefs which require him to refrain from participation in any war at any time. Finally, he recommended that Foster be discharged as a conscientious objector.

On July 11, 1974, the Chief of Naval Personnel denied by letter Foster's request for discharge. ⁵ The decision was based on Navy regulation 32 C.F.R. § 730.18(b), which provides that a serviceman's claim of conscientious objection shall not be considered if the basis for that objection existed prior to enlistment and would have satisfied the requirements of 50 U.S.C. App. 456(j) and related provisions of law, but such objection was not claimed by the applicant prior to enlistment. ⁶ The Chief of Naval Personnel wrote that it was apparent from the testimony of Dr. Markowitz that prior to entry into the Navy, Foster was opposed to war and killing. He also referred to a statement by Dr. Markowitz that Foster's nonviolent attitudes had not in any way been modified in the last fourteen years. Finally, the Chief of Naval Personnel stated that "(w)hile your concerns and reservations may now be stronger there is nothing to indicate that your present beliefs are in substance and foundation any different than those you held before you accepted your commission."

Foster, who was now scheduled to report for active duty, filed a petition for a writ of habeas corpus in the Southern District. His call to active duty was stayed temporarily. On September 13, 1974, Judge Duffy denied the petition. Judge Duffy found that the government did not question Foster's sincerity or the depth of his convictions, and that the key factual determination made by the Navy was the time at which Foster's nonviolent beliefs had sufficiently developed to qualify him as a conscientious objector. Judge Duffy found that there was a basis in fact to support the decision of the Chief of Naval Personnel that Foster's...