Zemke v. Larsen, 25417.

• Decision Date: 01 December 1970
• Docket Number: No. 25417.,25417.
• Parties: Stephen M. ZEMKE, Plaintiff-Appellant, v. Lt. General Stanley R. LARSEN, C.O. Sixth Army, Stanley Resor, Secretary of the Army, Melvin Laird, Secretary of Defense, General Ellis Fuller as Commanding Officer, U. S. Army Personnel Center, Oakland Army Base, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

434 F.2d 1281 (1970)

Stephen M. ZEMKE, Plaintiff-Appellant, v. Lt. General Stanley R. LARSEN, C.O. Sixth Army, Stanley Resor, Secretary of the Army, Melvin Laird, Secretary of Defense, General Ellis Fuller as Commanding Officer, U. S. Army Personnel Center, Oakland Army Base, Defendants-Appellees.

No. 25417.

United States Court of Appeals, Ninth Circuit.

December 1, 1970.

Robert Michael Zweig (argued), of Hodge, Green & Zweig, San Francisco, Cal., for appellant.

Steven Kazan (argued), Asst. U. S. Atty., James L. Browning, Jr., U. S. Atty., San Francisco, Cal., for appellees.

Before MERRILL, KOELSCH and WRIGHT, Circuit Judges.

MERRILL, Circuit Judge:

Appellant, seeking discharge from the United States Army as a conscientious objector, appeals from a district court order denying him habeas corpus relief.

Following the filing of his application for discharge, appellant received favorable recommendations from a chaplain who interviewed him and from the hearing officer assigned to his case. But his commanding officer, on the record, recommended disapproval on the ground that appellant's objection to military service appeared to be "based on a personal moral code rather than sincere religious beliefs." Appellant's file was forwarded to the Adjutant General for review by the Army Conscientious Objector Review Board. That Board recommended disapproval of the application by a two-to-one vote, giving as its reason: "Based on essentially philosophical views and a merely personal moral code rather than religious training and belief." On the basis of the Board's report, appellant's application for discharge was disapproved by the Adjutant General.

In making their recommendations, neither the commanding officer nor the Army Board had the benefit of the Supreme Court's ruling in Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970), which defined the standards for determining whether beliefs are religious within the meaning of the Universal Military Training and Service Act. 50 U.S.C. App. § 456(j) (1964), as amended by P.L. 90-40, § 1(7), 81 Stat. 104 (1967). Viewed in light of Welsh, the record in this case demonstrates that appellant's beliefs are religious within the meaning of the Act. Thus, the Army Board erred if it concluded that appellant's beliefs, even if sincerely held, did not entitle him to discharge as a conscientious objector.

Appellees contend that the record discloses that the Board had a second, independent reason for disapproval: that the appellant's beliefs were not sincerely held.

The record does not support this contention. Lack of sincerity was not specified by the Board as the basis for its action and the record rationally suggests that this was not an oversight but rather that the reason specified was in truth the only reason upon which the majority of the Board was in agreement.

The Board made its report by filling out a form, which contained a list of specified reasons for disapproval. One of the listed reasons was "Based on a personal moral code and evidences insincerity regarding strong religious training or belief." Significantly, the Board did not check this statement, which was the only specified ground for disapproval bearing on lack of sincerity. We note, moreover, that the Board gave every indication of a desire to spell out precisely the basis on which it chose to rest its recommendation. The reason in fact designated by the Board was not left in the language provided by the form. By interlineation some language was stricken and other language added.

Nevertheless, appellees contend that the notes of the Board members, which were attached to the Board report, demonstrate that a finding of insincerity was a basis for the Board's decision.

One member was unequivocal. He wrote: "Lacks sincerity. A true CO would have declared his feelings to someone much sooner than this man did. He waited until he was on orders for RVW Dag."¹

The second Board member voting for disapproval also noted his doubt as to appellant's sincerity. But insincerity was apparently secondary in importance to this Board member's finding that appellant's beliefs were not religious within the meaning of the Act. Furthermore, the source of this member's doubt of sincerity was different...