United States v. Eichstaedt

• Decision Date: 26 June 1967
• Docket Number: No. 46723.,46723.
• Citation: 285 F. Supp. 476
• Parties: UNITED STATES of America ex rel. Christopher O'HARE, Petitioner, v. Col. H. M. EICHSTAEDT, CE-USAR, Commanding Officer 6211th U.S. Army Garrison, Building 1242, Fort Scott, Presidio of San Francisco, California, et al., Respondents.
• Court: U.S. District Court — Northern District of California

285 F. Supp. 476

UNITED STATES of America ex rel. Christopher O'HARE, Petitioner, v. Col. H. M. EICHSTAEDT, CE-USAR, Commanding Officer 6211th U.S. Army Garrison, Building 1242, Fort Scott, Presidio of San Francisco, California, et al., Respondents.

No. 46723.

United States District Court N. D. California.

June 26, 1967.

Ewart L. Merica, San Francisco, Cal., for petitioner.

Charles Collett (now deceased), Asst. U. S. Atty., San Francisco, Cal., for respondents.

MEMORANDUM OF DECISION

SWEIGERT, District Judge.

Petitioner, a private in the United States Army Reserve, has filed a petition for a Writ of Habeas Corpus pursuant to the provisions of 28 U.S.C. § 2241. Subsequently, on April 10, 1967, petitioner filed a First Amended Petition for Writ of Habeas Corpus and Complaint for (A) Declaratory Relief, (B) Injunctive Relief, and (C) Mandamus.

On April 20, 1967, this Court, treating the application as an application for habeas corpus relief, issued an Order to Show Cause. On May 12, 1967, respondent filed its Return and on May 22, 1967, petitioner filed his Traverse and a memorandum in support thereof.

On May 25, 1967, this Court held a show cause hearing at which argument was heard and the case submitted on the papers there on file together with Exhibits "A" and "B" offered by counsel for the government.

The facts shown by the record are substantially as follows:

That on February 18, 1966, petitioner voluntarily enlisted with the United States Army Reserve, 6211th, United States Army Garrison, Fort Scott, San Francisco, California; that at the time he was not a conscientious objector but after his enlistment, he came to the conclusion that he was conscientiously opposed to war in any form; that on August 17, 1966, petitioner completed and filed with his home unit, his application and request for separation from the United States Army Reserve on the ground that he conscientiously objected to participation in war in any form. (Exhibits 15-A through 15-J).

The record further shows that petitioner was interviewed by the Chaplain who recommended that he not be discharged; that on or about September 6, 1966, petitioner was evaluated by a psychiatrist, Captain Marrin, who stated that petitioner's position was sincere; that on September 13, 1966, petitioner was counseled by Captain Leslie with respect to Title 38 U.S.C. § 3103, relating to waiver of certain veteran's benefits; that these papers, along with the recommendations of the various commanding officers, were forwarded through military channels to the Chief of Personnel Operations, Fort Benjamin Harrison, Indiana; that the Director of the Selective Service System, when asked for an advisory opinion as to whether petitioner would qualify for a conscientious objector classification if not for his present Army Reserve status, stated that, based upon the information in the file, petitioner would not be classified as a conscientious objector if he were being considered for induction. (Government Exhibit "B", p. 19.) Finally, petitioner was notified by letter, dated March 6, 1967, that his request for discharge from the Army Reserve had "not been favorably considered by the Secretary of the Army". (Complaint Exhibit 26-A.)

Thereafter, on April 11, 1967, petitioner received orders from the Army Reserve to report "with their (his) consent" for active duty training to begin April 24, 1967. (Petitioner's Affidavit filed April 14, 1967.)

Thereafter, petitioner commenced the present proceeding and upon the suggestion of this Court, the order to report on April 24, 1967, was rescinded pending these proceedings, subject, however, to new, similar orders to report for active duty training in the future.

Petitioner contends that his claimed status as a conscientious objector entitles him to discharge from the Army Reserve pursuant to the provisions of Army Regulations (AR) 135-25 (Exhibits 28-A through 28-F), A.R. 135-178 (Exhibits 27-A through 27-Y), and 50 App. U.S.C. § 456(j).

Petitioner next argues that the above regulations are unconstitutional in that they (1) infringe upon his right to freedom of religion, (2) subject him to cruel and unusual punishment, (3) deny him procedural and substantive due process, and (4) deny him equal protection of the laws.

Petitioner also contends that the military failed to comply with the procedures set forth in item "7" in A.R. 135-25 (Exhibits 27-C and 27-D) which sets forth certain steps to be taken by Commanders having custody of records pertaining to applicants for conscientious objector status.

The Preliminary Issue re Custody

Respondent makes the threshold point that petitioner is not "in custody" within the meaning of 28 U.S.C. § 2241 (1964) and therefore not entitled to habeas corpus relief, citing United States ex rel. McKiever v. Jack, 351 F.2d 672 (2d Cir. 1965); McCord v. Page, 124 F. 2d 68 (5th Cir. 1941); and In re Grimley, 137 U.S. 147, 11 S.Ct. 54, 34 L.Ed. 636 (1890).

Several Courts have held that persons in the active service of the military are in custody within the meaning of 28 U. S.C. § 2241 (1964), and, as such, entitled to petition for the writ of habeas corpus to inquire into the legality of their detention by the military. In re Phillips, 167 F.Supp. 139 (S.D.Cal.1958); United States ex rel. Orloff v. Willoughby, 104 F.Supp. 14 (W.D.Wash.1952).

On the other hand, in Petition of Green, 156 F.Supp. 174 (S.D.Cal.1957), which involved a petition for a writ of habeas corpus by a member of the Marines, the Court held that petitioner, who was on normal, active duty, could not be found to be "in custody" or under restraint, and therefore, was not entitled to habeas corpus relief to consider his claim of conscientious objection. See also: United States ex rel. McKiever v. Jack, supra; McCord v. Page, supra.

Assuming, however, that members of the military on active duty may be considered to be "in custody" for habeas corpus purposes, the question remains whether a member of the United States Army Reserve, who has not entered on active training duty, may be so considered.

Petitioner enlisted on the Army Reserve under authority of A.R. 140-III and entered into a prescribed agreement set forth in his enlistment record (Government Exhibit B). In substance petitioner agreed to attend certain drills and periods of active training duty.

Among other things, petitioner agreed to enter on active duty for training for a period of twenty (20) weeks within one hundred and twenty (120) days of his enlistment (Government Exhibit "B" page 3), unless a delay for a longer period is authorized by the Department of the Army.

Petitioner has not yet performed this period of initial active duty for training. On March 30, 1967, petitioner was ordered, "with his consent" to report for the twenty week period of initial active duty for training to begin April 24, 1967 (Government Exhibit "A"). It will be particularly noted that the order in this form was, not peremptory, but rather subject to petitioner's consent.

This order was made pursuant to 10 U.S.C. § 672(d) which authorizes an authority designated by the Secretary of Defense to order a member of a reserve component under his jurisdiction to active duty with "his consent".

Respondent alleges in its Return that, if petitioner does not consent to active training duty, his commander will complete and forward notice to the local selective service board that petitioner has failed to satisfactorily participate in his Reserve Program.

Respondent cites Section 18(b) of A. R. 135-90 for this procedure but the Court is of the view that Section 18(a) (change-9, 1966), not Section 18(b), is the Section applicable to petitioner's situation.

Section 18(a) provides in part as follows:

"* * * As an exception to the foregoing, male obligated enlisted members, assigned to U.S.A.R. units, who entered into military service while under 26 years of age in any program requiring the performance of initial active duty for training, and who have not performed such training, will not be ordered to 45 days involuntary ACDUTRA for failure to participate satisfactorily. Upon approval of Army area Commanders or corps commanders to whom authority may be delegated by Army area commanders, such personnel will be reported to the local Selective Service Boards for priority induction. * * *"

Section 18(a) of A.R. 135-90 further provides that "In the event that the local Selective Service Board indicates that the individual will not be inducted and there are indications that he will not be ordered to initial ACDUTRA within 90 days of certification to the local board, discharge from the U.S.A.R. will be accomplished in accordance with the provisions of A.R. 135-178 for the convenience of the Government."

This procedure is part of a regulatory scheme under which enlistment in the Army Reserve is adjusted to the requirements of the Universal Military Training Act, Title 50 App. U.S.C. § 451 et seq. under which every male citizen between the ages of 18 and 26 is subject to induction into the Armed forces of the United States.

Upon petitioner's enlistment in the Army Reserve, he obtained a 1-D from his Selective Service Board as deferment from induction and he remains deferred so long as he satisfactorily performs his Army Reserve obligations. If he chooses not to so perform, he is no longer entitled to the deferment and, in lieu of any compulsory duty as a member of the Army Reserve, he is merely referred to his Selective Service Board by the Army Reserve under the provisions of A.R. 135-90 above referred to.

So far as the Court can determine, there is no reason why petitioner cannot, prior to any such Selective Service induction, assert his claim of conscientious objection upon the grounds, terms and procedures provided by 50 App. U.S.C. § 456(j). The record shows that petitioner already has on file at his local Selective Service Board, a "Selective Service System Special Form for Conscientious O...