United States ex rel. Tobias v. Laird, 13559.

• Decision Date: 25 July 1969
• Docket Number: No. 13559.,13559.
• Citation: 413 F.2d 936
• Parties: UNITED STATES of America ex rel. Harris TOBIAS, Appellant, v. Melvin LAIRD, Secretary of Defense, Stanley R. Resor, Secretary of the Army, and the Commanding Officer of Fort Eustis, Virginia, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

413 F.2d 936 (1969)

UNITED STATES of America ex rel. Harris TOBIAS, Appellant, v. Melvin LAIRD, Secretary of Defense, Stanley R. Resor, Secretary of the Army, and the Commanding Officer of Fort Eustis, Virginia, Appellees.

No. 13559.

United States Court of Appeals Fourth Circuit.

Argued June 11, 1969.

Decided July 25, 1969.

Joan Goldberg, New York City (Rabinowitz, Boudin & Standard, New York City, on the brief), for appellant.

Roger T. Williams, Asst. U. S. Atty. (Brian P. Gettings, U. S. Atty., on the brief), for appellee.

Before HAYNSWORTH, Chief Judge, and BRYAN and CRAVEN, Circuit Judges.

CRAVEN, Circuit Judge:

This is an appeal from a denial by the district judge of a petition for writ of habeas corpus brought to procure Harris Tobias' discharge from the Army or, alternatively, assignment to non-combatant duties, on the theory that he is in custody in violation of the Constitution and laws of the United States. 28 U.S.C. § 2241(c) (3). Tobias claims to have been arbitrarily and capriciously denied conscientious objector status under 50 U.S.C. App. § 456(j). It is urged that in denial of due process the Army has refused him such status although he is clearly entitled to it under Army and Defense Department regulations. Department of Defense Directive 1300.6; Army Regulation 635-20.¹ We agree and reverse the decision of the district court.

The Army's refusal to release or otherwise grant Tobias relief must be measured against the congressional formulation of policy contained in 50 U.S.C. App. § 456(j):

"Nothing contained in this title shall be construed to require any person to be subject to combatant training and service in the armed forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form. As used in this subsection, the term `religious training and belief\' does not include essentially political, sociological, or philosophical views, or a merely personal moral code."

The Department of Defense and the United States Army have adopted a regulatory scheme generously designed to protect soldiers who, after enlistment, find war morally repugnant and impossible to square with religious principle. The Department of Defense has recognized the "national policy" as one in which Congress has "deemed it more essential to respect a man's religious beliefs than to force him to serve in the armed forces." Par. IV(a) DoD § 1300.6. The Department of Defense Directive contains the following, which all but decides this case before us:

"Evaluation of the sincerity of a claim of conscientious objection requires objective consideration of professed belief not generally shared by persons in the military service. For that reason, particular care must be exercised not to deny bona fide convictions solely on the basis that the professed belief is incompatible with one\'s own." Par. V(c) DoD 1300.6.

Pursuant to its regulatory scheme, Tobias was interviewed and examined by three Army officers — a psychiatrist, a chaplain² and an officer "knowledgeable in policies and procedures relating to conscientious objector matters." DoD § 1300.6, Par. VI(b) (4). All three officers making recommendations recommended classification as a conscientious objector.³ Despite the unanimous opinion of the three officers charged with the responsibility of determining Tobias' sincerity and the nature of his religious beliefs, Commanding Officer Forcier forwarded the reports of the officers with a recommendation that the application be denied. Captain Forcier recommended denial without having interviewed or talked with the applicant. The captain expressed some fear that Tobias' application might represent merely "disenchantment with present American military commitments," and also expressed the belief that "current levies for Vietnam on personnel in this unit have acted as a catalyst in this case, and that there lies the basic stimulus for submission of SP 4 Tobias' request for discharge." Subsequent to his decision to reject the reports of the three officers and to deny relief, Captain Forcier, after protest, did interview Tobias and somewhat inconsistently reported: "There was little doubt of his sincerity before I interviewed him and there is little doubt of his sincerity now." But the captain adhered to his prior refusal to recommend discharge, and failed to recommend assignment to non-combatant duty.

Subsequent officers routinely noted their disapproval of the application after examination of the papers and without seeing or interviewing Tobias. The application was then forwarded through channels to the Department of the Army. By letter dated February 20, 1969, the application was disapproved. The comment thereon is: "Evidence does not show conscientious objection to participation in war in any form, but rather supports only a claim for classification as a non-combatant." (Emphasis added.) After having been notified that his application was denied, Tobias then applied for reassignment to non-combatant service under the appropriate regulation, AR 600-200, 2-12. In the processing of this application, Tobias was again interviewed by Rabbi Allan Mervis and by another officer (Major Oliver) familiar with conscientious objector matters and procedures. The rabbi again stated his opinion that Tobias' views were religious and again recommended that he be given assignment not in conflict with his religious belief. Major Oliver came to the same conclusion as had Major Crawford, and recommended that Tobias be reassigned to non-combatant duties, stating:

"From the contents of the application and the informal discussion which follow sic the above explanation I recommend that Specialist Tobias be classified I-A-O and that he perform duties consistent with AR 600-200.

"Specialist Tobias is an extremely mild-mannered individual but capable of standing behind his convictions. He appears to be completely honest and sincere in his beliefs and convictions."

Despite the unanimous opinion of all four Army officers who had examined and interviewed him (excluding Forcier, who had decided against Tobias before he ever saw him) that he should be granted some form of relief — whether discharge from the service or non-combatant assignment — Tobias' latest application for non-combatant service was denied, and on April 7, 1969, he was advised that he was scheduled for combat training and for assignment to Vietnam. This petition for writ of habeas corpus followed.

We reject the defendant's contention that Tobias is barred from relief by failure to exhaust administrative remedies. United States ex rel. Brooks v. Clifford, 409 F.2d 700 (4th Cir., March 20, 1969 petition for rehearing denied, 412 F.2d 1137 June 25, 1969). Moreover, although exhaustion of administrative remedies is ordinarily to be encouraged, and, indeed, insisted upon, the doctrine is one of comity and not power. McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969). In the extreme factual context of this case we think the district judge correctly reached the merits and in his discretion should have done so even if further administrative avenues appeared theoretically open.

According to the record Tobias is a young man who was taught from infancy an absolute reverence for all forms of life and abhorrence of violence. Even as a boy, he never engaged in a fist fight, and never went fishing or hunting. Although Judaism forms the basis of his beliefs, he is now heretical with respect to Jewish ritual and form and has come to believe in an over-whelming reverence for life and a faith in a supreme being as the core of his religious conviction. Tobias does not believe in the use of force under any circumstances and says with apparent sincerity that he could no more "follow an order that would contribute to the death of another human being" than he could cease to be himself. He says, "I will not be the instrument for the destruction of life."

His history is entirely consistent with this expression of belief. As long as nine years ago he wrote anti-war poetry for a Wilkes College literary magazine and for the college newspaper. After graduating from college he...