United States ex rel. Brooks v. Clifford

• Decision Date: 20 March 1969
• Docket Number: No. 13275.,13275.
• Citation: 409 F.2d 700
• Parties: UNITED STATES of America ex rel. Peter S. BROOKS, Appellant, v. Clark CLIFFORD, Secretary of Defense, Stanley R. Resor, Secretary of the Army and Commanding Officer, Fort Jackson, South Carolina, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

409 F.2d 700 (1969)

UNITED STATES of America ex rel. Peter S. BROOKS, Appellant, v. Clark CLIFFORD, Secretary of Defense, Stanley R. Resor, Secretary of the Army and Commanding Officer, Fort Jackson, South Carolina, Appellees.

No. 13275.

United States Court of Appeals Fourth Circuit.

Argued March 6, 1969.

Decided March 20, 1969.

Rehearing Denied June 25, 1969.

Leonard B. Boudin, New York City (Rabinowitz, Boudin & Standard, Joan Goldberg, New York City, and Jack F. McGuinn, Columbia, S. C., on brief), for appellant.

Wistar D. Stuckey, Asst. U. S. Atty. (Klyde Robinson, U. S. Atty., on brief), for appellees.

Before WINTER, CRAVEN and BUTZNER, Circuit Judges.

WINTER, Circuit Judge:

Petitioner, a member of the United States Army, in which he voluntarily enlisted after being classified 1-A by his local selective service board, sought a writ of habeas corpus to effect his release upon his claim that he was a conscientious objector. The writ was sought after his claim was rejected by the Army. The district court, concluding that there was a basis in fact on which the Department of the Army could bottom its decision that petitioner's objection to further military service had as its sole basis a merely personal code, denied the writ; but we are satisfied from our study of the record that it should have been granted. Accordingly, we reverse, with directions that the writ shall issue, upon the conditions hereafter set forth.

I

Petitioner was an instructor at Dutchess County Community College, in Poughkeepsie, New York. He grew up in a Humanist family and, at the time he attended college, he was a member of the Colgate University Church Board. Thereafter and coinciding with the period that he pursued graduate studies, he worked with the National Student Christian Federation, and participated in a program similar to the Peace Corps, called "Crossroads Africa," sponsored by various philanthropic organizations.

When petitioner was classified 1-A by his local Selective Service board in Poughkeepsie, he did not seek to avoid military service. He volunteered for induction, and was inducted into the United States Army on February 12, 1968. He performed his basic training and advanced infantry training at Fort Jackson, South Carolina, where he is presently stationed.

During the time that petitioner was receiving his advanced infantry training his views in opposition to participation in war crystallized and he concluded to seek his release as a conscientious objector.

While § 6(j) of the Military Selective Service Act of 1967, as amended, 50 U.S. C.A. App. § 456(j), provides that no person shall be required "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,"¹ not until August 21, 1962, the effective date of Department of Defense Directive (hereafter "D.O.D.") No. 1300.6, was any provision made to provide special treatment or relief to an individual who became a conscientious objector after entering the military service. Present D.O.D. No. 1300.6, effective May 10, 1968, as amended, December 20, 1968, inter alia, states that Congress has deemed it more essential to respect a man's religious beliefs than to force him to serve in the Armed Forces and accordingly has provided that a person having bona fide religious objections to participation in war in any form shall not be inducted into the Armed Forces but will be required to engage in civilian work of national importance. Consistent with this policy, the directive continues, bona fide conscientious objection by persons who are members of the Armed Forces will be recognized to the extent practicable and equitable. The directive then sets forth certain types of conscientious objection which will not be recognized and spells out the criteria for determining conscientious objection and procedures to be followed in regard to persons inducted into military service who claim to be conscientious objectors when they assert such claim.

Army Regulation No. 635-20 (hereafter A.R. 635-20), dated December 3, 1968, also sets forth the policy, criteria and procedures for disposition of army personnel who, by reason of religious training and belief, claim conscientious objection to participation in war in any form. The procedure contemplated is that military personnel will submit an application for discharge containing general information and detailed data in regard to their religious training and belief. In the case of an applicant who has served more than 180 days in the military service, he is required to state his willingness to engage voluntarily in post-military work of the nature encompassed by the civilian work program administered by Selective Service; one who has served less than 180 days is subject to further order of his local Selective Service board. An applicant requesting discharge must receive a counseling interview by a chaplain and a psychiatric interview by a psychiatrist — the latter undoubtedly because a person discharged as a conscientious objector forfeits all rights under laws administered by the Veterans Administration unless he was insane. Additionally, the applicant has the opportunity to appear (with counsel retained by him, if he desires) before an officer in the grade of 0-3 or higher who is knowledgeable in policies and procedures relating to conscientious objector matters. That officer is required to enter his recommendation and the reasons therefor.

When the various interviews have been completed and the recommendation of the interviewing officer made, the application, with accompanying documents, is forwarded along the line of command, ultimately to the Adjutant General, for final determination. Where an applicant having less than 180 days of service is discharged, the Selective Service System is requested to induct him into its conscientious objectors' work program. All applicants discharged by reason of conscientious objection are granted an Honorable Discharge Certificate or a General Discharge Certificate.

In accordance with D.O.D. No. 1300.6, petitioner initiated, on August 10, 1968, proceedings for his discharge. He was examined by a psychiatrist, who found that he had no mental defects sufficient to warrant separation from the service, and that there was no evidence of mental illness. Next, he was interviewed by the chaplain, Major Earle W. Hutchison, whose formal report stated:

"I have interviewed PVT (E-2) Peter S. Brooks, US 52 772 026, B-12-3, concerning his views on non-participation in armed conflict. I have also read carefully the statements he is submitting in which he sets forth his thinking. His standards are certainly derived from Christian religious principles. I do not believe a man should be faulted for having a high degree of idealism and humanitarian concern. PVT Brooks seems to have consistently implemented his ideals in practical projects of humanitarian concerns working for the betterment of mankind.

"It is in no sense derogatory of the infantryman to state that PVT Brooks could be of benefit to his country in a capacity other than that of an infantryman. If discharged from the service PVT Brooks is willing to serve in some Selective Service Work Project. If properly assigned, his skills and teaching abilities could be most beneficial to our nation."

Following these interviews, petitioner filed a formal request for discharge as a conscientious objector, under date of September 3, 1968. He gave as the reason for his request that "because of my religious principle I cannot in conscience participate in combatant or non-combatant training or service." Attached to the formal request was a statement setting forth the information required by D.O.D. 1300.6 and A.R. 635-20. In this statement he described the religious denomination of his parents as Humanist, advised that he had not claimed conscientious objector status prior to his entry into the armed forces, and consented to the issuance of an order by his local Selective Service board to perform work under the Selective Service Conscientious Objectors' Work Program. Alternatively (if he had more than 180 days in the military service), he stated his willingness to engage voluntarily in post-military work of the nature encompassed by that program. The description of the nature of his belief which was the basis of his claim is set forth in the margin.² This belief, he stated, was acquired from the example and thinking of his parents and from having been brought up in a home concerned with the problems of human dignity and human rights. He stated that he had adhered to these views "as long as I can remember." He denied that there were any circumstances in which he believed in the use of force except to restrain those who are psychologically or physically unbalanced who threaten to harm themselves or others; and, as evidence of the consistency of his views, he referred to his college membership on the university church board, a group which he described as having as its primary concern the study of religious beliefs and principles and their application to the students' life. He also referred to his service in 1962 in "Crossroads Africa" and to work which he performed in 1963 in an institution for disturbed and homeless children as a cottage parent, as well as work, while a graduate student, with the National Student Christian Federation Committee on Youth in Africa, a group concerned with alleviating the problems of human misery in South Africa. He denied membership in a formal religious sect or organization.

Also attached to this request, were a number of letters from various persons, including a Unitarian minister, attesting to the depth and sincerity of his views and the manner in which those views had been evidenced by the way in which he had lived his life.

On the same day — September 3 — petitioner's commanding officer...