United States ex rel. Donham v. Resor

• Decision Date: 06 January 1971
• Docket Number: Docket 35512.,No. 387,387
• Citation: United States ex rel. Donham v. Resor, 436 F.2d 751 (2nd Cir. 1971)
• Parties: UNITED STATES ex rel. Cary E. DONHAM, Petitioner-Appellant, v. Stanley R. RESOR, Secretary of the Army, and Major General William Knowlton, Superintendent, United States Military Academy, West Point, New York, Respondents-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

436 F.2d 751 (1971)

UNITED STATES ex rel. Cary E. DONHAM, Petitioner-Appellant, v.Stanley R. RESOR, Secretary of the Army, and Major General William Knowlton, Superintendent, United States Military Academy, West Point, New York, Respondents-Appellees.

No. 387, Docket 35512.

United States Court of Appeals, Second Circuit.

Argued December 3, 1970.

Decided January 6, 1971.

Joan Goldberg, Rabinowitz, Boudin & Standard, New York City(Victor Rabinowitz, New York City, National Emergency Civil Liberties Committee, of counsel), for petitioner-appellant.

Michael I. Saltzman, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty. S. D. N. Y., of counsel), for respondents-appellees.

Before FRIENDLY, SMITH and ANDERSON, Circuit Judges.

J.JOSEPH SMITH, Circuit Judge:

Petitioner, a cadet at West Point, sought separation from the Academy at the end of his third year because he had become a conscientious objector.A cadet may not withdraw from the Academy after his second year without incurring an immediate military duty requirement unless excused by separation as a conscientious objector.The Army rejected his conscientious objector claims on the grounds that his beliefs lacked the necessary depth of sincerity.Petitioner brought an action in the United States District Court for the Southern District of New York for a writ of habeas corpus, attacking both the substance of and procedure leading up to the Army's decision.The court, Marvin E. Frankel, Judge, denied the writ.We find error and reverse and remand with instructions to stay active duty orders pending further proceedings by the Army.

The points in issue on appeal are, basically, three: what is the applicable standard of judicial review; was the Army's decision supportable under the correct standard; and in any case, did the Army fail to follow its own regulations, to the prejudice of petitioner.

It has long been established that the proper standard of review in Selective Service cases has been whether the deciding body had any basis in fact for its decision.Estep v. United States, 327 U.S. 114, 122-123, 66 S.Ct. 423, 90 L.Ed. 567(1946).Originally, it seems that both sides in this case accepted the application of that standard here.However, petitioner, subsequent to the initial hearing in the district court, argued that the "no basis-in-fact" standard is unconstitutional as applied here, and that the proper standard of review is the one familiar in the administrative law area, "substantial evidence."Judge Frankel rejected the argument.Petitioner argues that although the standard may be constitutional in the Selective Service area, it is not when applied to an in-service conscientious objector applicant.This is so because "all of the officers conducting interviews and making decisions are in the Army, and there is no right to appeal from the Army determination."It is contended that the Army officer who hears the applicant's case generally possesses views that "concededly do not embrace conscientious objection and whose very position in the Army may make it impossible for him to be objective."In Selective Service cases, on the other hand, the local board consists of volunteer civilians, and there is a right of appeal to the State Appeal Board.This argument, however, is based on unproven assumptions.We cannot say that fair determination is not possible within the military, and the Army regulations themselves are designed to provide it.However, even though the standard is the same as in draft cases, and review is limited to the narrow issue of whether there is a basis in fact for the Army determination, the courts have, of course, required the Army to base its findings upon objective evidence.¹

In any case, petitioner argues that there was no basis in fact for the Army's decision.This claim we must reject.

Judge Frankel expressed the opinion that if he had been commissioned to decide independently petitioner's application for discharge, petitioner's arguments might have prevailed.Judge Frankel felt, however, that given the court's more limited role, he was forced to uphold the Army's decision, since there did exist a basis in fact to support it.Were there complete compliance with the Army requirements in reaching the determination, we would be constrained to agree.

Petitioner filed his application for discharge on May 29, 1970.He stated that his "beliefs concerning war stem from a belief in God and in the New Testament teachings of Christ."He believed that he had no right to take the life of any other person, yet in the Army, one is taught that killing is not only necessary but is also acceptable.He said his beliefs stemmed from childhood, but, somewhat surprisingly, he went on to note that "West Point has been a goal of mine for many years," for the prestige, because it provided a way to serve his country and because it "seemed to offer everything worthwhile in an education."Although the bayonet training was disturbing at the outset, he pushed it to the back of his mind.

It was a combination of several factors, petitioner claimed, that combined to cause his ultimate "crystallization."First, when he was called upon to teach plebes the use of the bayonet, he found himself thinking "somber thoughts."Secondly, the Vietnam moratorium of that fall and news of the My Lai incident "both had a profound effect" on him.Finally, the news that one of the boys with whom he had gone to high school was killed in Vietnam made him realize that people really die in wars.A number of those with intimate contacts with Donham certified to the sincerity and depth of his evolving scruples of conscience.

In accord with Army regulations, petitioner was interviewed by a chaplain, a...