United States ex rel. Checkman v. Laird

• Decision Date: 27 October 1972
• Docket Number: Docket 72-1361.,No. 822,822
• Citation: 469 F.2d 773
• Parties: UNITED STATES of America ex rel. Neil Bruce CHECKMAN, Petitioner-Appellant, v. Hon. Melvin LAIRD, Secretary of Defense, et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

469 F.2d 773 (1972)

UNITED STATES of America ex rel. Neil Bruce CHECKMAN, Petitioner-Appellant, v. Hon. Melvin LAIRD, Secretary of Defense, et al., Respondents-Appellees.

No. 822, Docket 72-1361.

United States Court of Appeals, Second Circuit.

Argued May 25, 1972.

Decided October 27, 1972.

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Donald L. Doernberg, New York City (Jeremiah S. Gutman, Levy, Gutman, Goldberg & Kaplan, New York City, on brief), for petitioner-appellant.

Daniel James Dillon, Asst. U. S. Atty. (Robert A. Morse, U. S. Atty., E. D. N. Y., David G. Trager, Asst. U. S. Atty., on brief), for respondents-appellees.

Before LEVENTHAL,^* FEINBERG and TIMBERS, Circuit Judges.

LEVENTHAL, Circuit Judge:

On May 6, 1971, appellant Checkman applied for discharge as a conscientious objector from the Reserve Officer's Training Corps (ROTC) at the First United States Army Instructor's Group, Polytechnic Institute in Brooklyn. By a divided vote, the Army's Conscientious Objector Review Board (CORB) denied his application in a memorandum of January 13, 1972. Appellant filed a petition for Habeas Corpus relief. The District Court dismissed his petition, and he appeals. We think dismissal of the petition, on the record as it now stands, was erroneous and we remand for further proceedings not inconsistent with this opinion.

I. FACTUAL BACKGROUND

Mr. Checkman enlisted in the Army ROTC unit at the Polytechnic Institute of Brooklyn in September 1969. At that time he was a full-time second year student at Brooklyn Law School. The preceding summer he had attended a six-week basic training course at Fort Benning, Georgia. During the course of the next 20 months he satisfactorily completed the remaining requirements for commission as a Second Lieutenant in the U. S. Army Reserve, including attendance at the Advanced Summer Camp training at Indiantown Gap, Pennsylvania.

On May 6, 1971, Checkman filed an application for discharge as a conscientious objector pursuant to the provisions of Department of Defense Directive (DoD) 1300.6 and Army Regulation (AR) 135-25. The application states that at the time of his enlistment, he did not feel that he was, by reason of his religious training and belief, conscientiously opposed to participation in war in any form, within the meaning of 50 U.S.C.App. § 456(j);¹ that significant changes in his life and thinking described in his application, have resulted in such conscientious opposition.

As required by military regulation, DoD 1300.6.VI.C, D; and AR 135-25(6)(b)(1), (2), (3), Checkman was interviewed by the Deputy Staff Chaplain as to the nature and source of his conscientious objection, by Major James Weiss, who had been appointed Hearing Officer, and by a psychiatrist. The Chaplain, Lt. John Steavy, reported as follows:

Checkman\'s position is founded upon his opposition to war as a solution to international problems.

I have no question that he is completely sincere in his convictions.

These interviews were held May 18, 25 and June 1, 1971, and reports were duly filed. On May 26, 1971, the day after his interview with appellant, Major Weiss filed his report recommending the application for concientious objector status be disapproved.

The psychiatrist found him "a sincere sounding young man with no evidence of psychiatric illness or disease." The psychiatrist found no basis on which to recommend disposition of Checkman's application through medical channels.

Checkman's commanding officer, Lt. Col. Clarence Ruff, commented adversely on the application and forwarded it through military channels to the CORB. The CORB, on a 2-1 vote, recommended disapproval of the application in a memorandum dated January 13, 1972. It summarized its reasons as follows:

The Board believed that Cadet Checkman\'s application was based on grounds of policy, pragmatism and expediency. Moreover, the Board felt that Applicant was objecting to the war in Viet Nam rather than to participation in war in any form.

. . . . . .

In summary, the Board did not believe that Cadet Checkman was sincere in his stated conscientious objector beliefs, nor was his application founded on lawful grounds. The burden of proof to establish credibility and adherence to the governing law rests solely on the applicant.

The District Judge found a "basis in fact" for the CORB's conclusions as to appellant's "policy, pragmatism and expediency" and insincerity and denied his petition for habeas corpus.

II. ABSENCE OF ADEQUATE RECORD SUPPORT FOR BOARD DETERMINATION

Checkman's application states a prima facie case for conscientious objector (CO) status, and its core element of an opposition to war in any form,² derived from religious training and belief. Checkman's application sets forth that his opposition derives from moral and ethical beliefs that, while not specifically identified to any organized religion,³ or necessarily to a belief in a supreme being,⁴ were drawn in part from the tenets of various recognized creeds⁵ and occupied "the same place in his life as the belief in a traditional deity holds in the lives of others,"⁶ United States v. Seeger, 380 U.S. 163, 187, 85 S.Ct. 850, 865, 13 L.Ed.2d 733 (1965).

It was the CORB's position that Checkman failed each of the three tests for Congressionally-recognized conscientious objection: that his objection to war was (a) selective, (b) derived from political expediency and (c) not sincere, insofar as it purported to be other than (a) and (b).

A. Doctrine of judicial review of basis-in-fact for conscientious objector decisions

This case calls for an application of the doctrine that a court, in reviewing a decision denying conscientious objector (CO) status, will ascertain whether there is a "basis in fact" for the decision. This standard emerged in judicial doctrine in selective service classification matters, see Estep v. United States, 327 U.S. 114, 122-123, 66 S.Ct. 423, 90 L.Ed. 567 (1946), was reaffirmed in the conscientious objector context, see United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965), and incorporated by the legislature in the Selective Service Act of 1967, 50 U.S.C.App. § 460(b)(3). It has also been applied in the cases involving an in-service conscientious objector application. See United States ex rel. Donham v. Resor, 436 F.2d 751, 753 (2d Cir. 1971) ("the standard is the same as in draft cases"); Lovallo v. Resor, 443 F.2d 1262, 1265 (2d Cir. 1971); Hammond v. Lenfest, 398 F.2d 705, 716 (2d Cir. 1968).

Decisions in this area often turn on the contours of the individual case. However, this court has rejected the notion that a penetrating reconstruction of it decisions reveals that while this court purports to apply the same standard as the other circuits it in fact applies a more narrow standard of review, and in fact requires upholding of an Army denial of an in-service CO application as long as there is a mere scintilla of evidence in support. Dix v. Resor, 449 F.2d 317 (2d Cir. 1971). Indeed, in Lovallo v. Resor, supra, we took pains to note our congruence with the approach of other circuits, including notably Kessler v. United States, 406 F.2d 151 (5th Cir. 1969), and we said that although the military is not required to accept the prima facie case for discharge made out in the applicant's statement, and may determine that he is not to be believed,—

Where the applicant has stated his beliefs with apparent sincerity and no adverse demeanor evidence has been introduced, the Conscientious Objection Review Board must predicate any finding of insincerity upon objective evidence affording a rational basis for the Board\'s refusal to accept the validity of the applicant\'s claims.^* Absent such evidence, the military\'s administrative determination lacks a "basis in fact" and is, therefore, rendered in violation of its own directive. * * * What is required is the kind of evidence that "substantially blurs the picture painted by the applicant . . ." (443 F.2d at 1264-1265).

The central question is whether the record contains the objective basis requisite for rejection of the application.

B. Existing law requires statement of reasons for adverse decision on CO application.

The military regulations require a statement of reasons to be supplied to the applicant when a CO application is denied. This pertinent Department of Defense Directive, Number 1300.6, § VI, F, states: "The reasons for an adverse decision will be made a part of the record and will be provided to the individual." The Army's implementing regulation, AR 135-25, promulgated in its present form on April 11, 1969, provides as follows (para. 10):

Upon determination that neither I-O or I-A-O classification is appropriate, the individual requesting discharge will be advised by his commanding officer that his request has been denied, giving reasons for such denial.

In the earlier cases involving review of denials of CO status, the courts staked out that there existed a judicial jurisdiction—a matter once bitterly contested—and a judicial review to assure that there was a basis in fact in the record for the decision. In the earlier cases the courts did not focus on the need for or content of reasons in the administrative process. There has emerged an increasing awareness, that while the "basis in fact" standard implies a narrower judicial review than the conventional "substantial evidence" rule so far as facts are concerned, and that "the courts are not to weigh the evidence" to determine whether a particular classification is justified, see Estep v. United States, supra, 327 U.S. at 122, 66 S.Ct. 423, the courts cannot shirk the review necessary to consider whether there was a deviation from requirements of law. In conscientious objector cases, the need for attentive judicial review has been enhanced by the Seeger decision, with its departure from the prior construction of the "religious" requirement, a construction more easily understood, applied and...