Vandermolen v. Stetson

• Decision Date: 23 December 1977
• Docket Number: No. 76-1449,76-1449
• Citation: 571 F.2d 617,187 U.S.App.D.C. 183
• Parties: John H. VanderMOLEN, Appellant, v. John C. STETSON, Secretary of the Air Force.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 617

571 F.2d 617

187 U.S.App.D.C. 183

John H. VanderMOLEN, Appellant, v. John C. STETSON, Secretary of the Air Force.

No. 76-1449.

United States Court of Appeals District of Columbia Circuit.

Argued March 30, 1977.

Decided Nov. 16, 1977.

Statement on Sua Sponte Request for Rehearing En Banc Dec. 23, 1977.

Mary E. Baluss, Washington, D.C., with whom William H. Briggs, Jr., Michael J. Malley and David Addlestone, Washington, D.C., were on the brief, for appellant.

Richard A. Graham, Asst. U. S. Atty., Washington, D.C., with whom Earl J. Silbert, U. S. Atty., John A. Terry, William D. Pease and George A. Stohner, Asst. U. S. Attys., Washington, D.C., were on the brief, for appellee.

Before BAZELON, Chief Judge, and WRIGHT and ROBB, Circuit Judges.

Opinion for the Court filed by BAZELON, Chief Judge.

Dissenting opinion filed by ROBB, Circuit Judge.

BAZELON, Chief Judge:

On February 19, 1971, appellant, John H. VanderMolen, was honorably discharged from the United States Air Force under Air Force Regulation (AFR) 36-3. ¹ Claiming that his discharge was illegal, VanderMolen brought suit in United States District Court asking that he be reinstated on active duty in the Air Force, that he receive $9999.99 in damages, ² and that the Air Force be required to remove from his records any notation that would bar him from reenlisting in the Air Force, and in particular remove any reference to AFR 36-3. ³ VanderMolen also alleged that the Air Force had illegally cancelled his scheduled promotion to captain, and he asked that his reinstatement be with the rank of captain and that his back pay be calculated at that rank. The district court granted appellee's motion for summary judgment and dismissed VanderMolen's complaint. We reverse.

I. BACKGROUND

VanderMolen was commissioned as a Reserve Officer, Second Lieutenant, in the United States Air Force in April of 1967. His first assignment was an Intelligence Officer for the 327th Air Division at Taipei, Taiwan. His duties included collection, collation, and analysis of highly sensitive, top secret data dealing with the People's Republic of China. His Officer Efficiency Reports (OER's) at this time portray "a very fine, exceptionally mature, professionally competent young officer." ⁴ His superior, Lt. Col. Brown, praised his "keen analytical capability, high degree of intelligence, (and) unswerving dependability and dedication to duty . . . ." ⁵

In March, 1970, VanderMolen, now a First Lieutenant, was assigned to attend a Missile Launch Officer's Course at Chanute Air Force Base, Illinois. During the first few days of introductory classroom instruction, VanderMolen and his fellow students were advised by an instructor, Lt. James Tindell, that anyone having personal qualms about the overall nuclear weapons mission of the Air Force or about his ability to handle a missile launch assignment, should speak up immediately so that neither the Air Force nor the student would needlessly invest in the training. ⁶ At this time VanderMolen also learned, for the first time, of the substantial possibility that United States nuclear deterrent strategy may be in part premised upon the "extensive destruction of large population centers" and that Launch Control Officers would not be informed of the targets of the missiles that they launched. ⁷

This information disturbed VanderMolen, and he decided to accept Lieutenant Tindell's invitation to speak with him. Tindell's written counseling record states that "Lt. Vandermolen expressed . . . his belief that nuclear war or a nuclear force is not right. His religious beliefs and convictions will not allow him to be a part of a nuclear weapon system." ⁸ Lt. Tindell referred VanderMolen through the chain of command for counseling. ⁹ He was ultimately counseled by Col. John A. Walker, Jr., Chief of the Department of Missile Training. "By this time," VanderMolen states in his affidavit to the district court,

my feelings had crystallized as a result of my research, counseling, and soul searching. . . . I told Col. Walker that I supported various concepts of nuclear strategy, except as they called for the use of nuclear weapons to kill as many people or to render uninhabitable as large an area as possible. I said that if I could be assured that the United States did not employ such a nuclear strategy most, if not all, of my qualms about serving as a Launch Control Officer would be eliminated. I also assured Col. Walker during this counseling session that regardless of what Col. Walker recommended or the ultimate outcome of my predicament, I would perform all my duties as an Air Force Officer to the very best of my ability. ¹⁰

Col. Walker's Counseling Report of April 3, 1970, however, attributes to VanderMolen a slightly broader ground of opposition:

Lt. Vandermolen appears to be genuine in his belief that he does not believe he would be able to perform the Missile Launch Officer's tasks if required to launch missiles. He bases his belief on moral convictions against his taking a direct part in use of nuclear weapons; however, he did point out that he appreciates the status of our missiles as a deterrent force. Lt. Vandermolen indicated that he was not a volunteer for Missile Launch Officer duty and until attendance in Course 30BR1821G, Missile Launch Officer, WS-133A, did not realize what the Launch Officer duty entailed. Based on his ability, he should be able to perform in other career fields not related to the Human Reliability Program. ¹¹

On April 6, 1970, a Faculty Board was convened pursuant to the provisions of AFR 53-15 (including ATC Supp. 1, 15 January 1970) ¹² to consider VanderMolen's removal from the training course. The Board recommended VanderMolen's removal from the course under Air Force Manual (AFM) 35-99 (2 July 1965). AFM 35-99, the Human Reliability Program, establishes "the requirements and responsibilities for screening, selecting, and continuously evaluating all personnel who control, handle, (or) have access to . . . nuclear weapons . . . ." ¹³ VanderMolen was the only witness in the Faculty Board proceeding. The Faculty Board recorded a summary of its proceedings that stated:

Lt. Vandermolen firmly expressed a "religious, moral" objection to the use of nuclear weapons, CB (chemical/biological) agents, or destruction of population centers. He felt he could successfully complete course 30BR1821G but could not perform any duty in the release of nuclear weapons or CB agents or be directly involved in causing the destruction of population centers. He felt he could perform effectively in his previous career field, intelligence. He felt no responsibility for any combat (possible or actual) usage of intelligence information processed by him. ¹⁴

VanderMolen's later affidavit to the district court, however, states that, "I testified before the Board restating my personal, philosophical, moral, and religious difficulties with the use of nuclear weapons on civilians, exactly as I had stated these difficulties to Col. Walker." ¹⁵

VanderMolen's description of the proceedings of the Faculty Board are undisputed:

A secretary was present at the Faculty Board to take notes; however, no verbatim transcript was compiled. During these proceedings I was never advised of the procedural protections of AFR 11-1, nor was I informed of any rights I might have had to such protection. Accordingly, I did not call witnesses on my behalf and did not contest the admissibility of evidence presented by the government. I was not represented by counsel during this hearing. Indeed, throughout the counseling sessions at the school, no one ever suggested that I should see a lawyer or hinted that I might need one. I did think briefly of consulting a lawyer on my own, but the aura of general informality and goodwill present throughout the entire counseling process at the school caused me to dismiss the idea. Furthermore, I felt no need to seek an attorney since Col. Walker had advised me that my removal from the school would not jeopardize my Air Force career, except that in the future I would be restricted from handling nuclear weapons. ¹⁶

The Board decided that VanderMolen

should be disenrolled from training due to his expressed deficiency under AFM 35-99. He should not be considered for reinstatement in any career area governed by AFM 35-99. In the interest of economy, he should not be considered for further technical training but should be returned to his previous career field of intelligence. ¹⁷

VanderMolen was accordingly assigned to the 66th Missile Squadron (SAC), 44th Strategic Missile Wing, South Dakota, where he was temporarily assigned as Squadron Executive Officer for the 28th Field Maintenance Squadron. He continued to perform so as to receive extremely favorable evaluation from his superior officer. ¹⁸

Nevertheless, VanderMolen's Air Force career began to slide precipitously. Although VanderMolen had been scheduled for promotion to captain on April 19, 1970, his promotion was withheld for the stated reasons that:

Tech Tng Center, Chanute AFB, I11 MSG dated 9 April 1970, to SAC/DPMTO: Officer disqualified UP AFM 35-99, msl tng terminated this date. Officer expresses objection to use of Nuclear Weapons because of religious and moral beliefs. ¹⁹

On May 21, 1970, Lt. Robert Melvin recommended that a discharge proceeding be initiated against VanderMolen pursuant to AFR 36-3, para. 4(f). ²⁰ He stated that I recommend this action because Lt. Vandermolen, while attending Missile Launch Officer's Course OBR1821G at Chanute AFB, Illinois, expressed a firm religious, moral objection to the use of nuclear weapons and CB agents, or destruction of population centers. He was permanently disqualified for missile duty under provisions of AFM 35-99 on 3 Apr 70, and subsequently released from missile school. I believe this officer has a defective attitude toward the military service and its obligations, rendering him noneffective as a line Air...