The opinion of the court was delivered by: LANE
On or about May 17, 1966, David W. Brown, just prior to his twenty-first birthday, enlisted in the United States Army for a period of three years. Private Brown was assigned to Fort Dix, New Jersey, for an eight-week basic Army combat training course. After completing two weeks of the course, it is alleged that Private Brown's thoughts crystallized to the point where he was compelled to conclude that by reason of his religious training and belief, he was unable to serve as a soldier in the United States Army. Brown informed his superior officers of this and refused to proceed further with combat training.
On June 28, 1966, Private Brown submitted a Personal Action Form (DA Form 1049) requesting a discharge pursuant to Department of Defense Directive (DOD) No. 1300.6 and Army Regulation (AR) No. 635-20. The Defense Department Directive was issued by the Secretary of Defense under his general power to control the Department of Defense, 10 U.S.C. § 133. The stated purpose of the directive was to establish "uniform procedures for the utilization of conscientious objectors in the Armed Forces and consideration of requests for discharge on the grounds of conscientious objection." DOD 1300.6, pt. I. These procedures apply to "all personnel of the Army, Navy, Air Force and Marine Corps and to all Reserve components thereof." DOD 1300.6, pt. II.
Part III of the directive is headed "POLICY" and is composed of seven paragraphs lettered A. to G. The general content of this material is as follows: A. That an administrative discharge prior to completion of term of service is discretionary based on the facts of each case and no one has a vested right to such a discharge. B. That consistent with the national policy of not inducting conscientious objectors (I-O classification) such claims will also be recognized when made by members of the Armed Forces to the extent practicable and equitable. C. That such claims will not be entertained if the conscientious objector's beliefs existed prior to his entering the armed forces. D. That final determination of the request should be made by the departmental headquarters of the individual's service after consideration of the circumstances in the particular case and the pertinent criteria. E. That great care should be used to insure that the claim is sincere so that the procedure is not abused and in making this determination the claim should be judged by the same standard as is used in judging a pre-induction claim. F. That the standards used by the Selective Service System in determining I-O or I-A-O classification of draft registrants prior to induction are considered appropriate for judging the conscientious objector claims of those who are already members of the armed forces. G. That in order to insure the maximum practicable uniformity among the services and between members of the same service, an advisory opinion of the Selective Service that an I-O classification is appropriate will normally be a requisite for discharge based on conscientious objection of persons who have served less than two years of active service.
Part V of the directive sets forth the procedure to be employed. Paragraphs C. and D. under this part contain the provisions applicable to the instant case. They provide in pertinent part that a person requesting discharge because of conscientious objection is required to furnish certain information deemed appropriate by the military department concerned and, in addition, may submit other information he deems appropriate. These materials together with other information supplied by the applicant's immediate command are then forwarded to the departmental headquarters for determination. Before the departmental headquarters makes a determination concerning the discharge of persons who have actively served for less than two years, the case is forwarded to the Director of the Selective Service System for an advisory opinion as to the applicant's proper classification under the Universal Military Training and Service Act. If a classification of I-O is recommended the person will be considered for discharge. If a classification of I-A-O is recommended, discharge will not be granted, but the individual will be considered for assignment to non-combatant duties. Persons for whom neither of the above classifications is recommended will normally be retained in military service, subject to normal duty assignments. If the individual who has been denied discharge demonstrates continued unwillingness to serve, he will be subject to disciplinary action just as any other member of the armed forces who demonstrates similar behavior. Paragraph F. provides that determination by the military department, in accordance with the facts of the case and the guidelines, shall be final with respect to the administrative separation of its members.
Following the issuance of DOD 1300.6, Army Regulation 635-20 was promulgated by order of the Secretary of the Army pursuant to his authority under 10 U.S.C. § 3012 and 10 U.S.C. § 3811. This regulation contains most of the information embodied in DOD 1300.6 and under part 4 sets out the information required of the applicant on his DA Form 1049. In addition it provides that the individual requesting discharge will receive a counseling interview by a chaplain and a psychiatric interview with a psychiatrist. The chaplain is to report on the sincerity of the individual's belief and whether it is religious. The psychiatrist's report passes on whether there is anything to indicate the need of disposition through medical channels. These reports and the information supplied by the applicant are forwarded through military channels to the Adjutant General, together with certain comments thereon by the unit commander including his recommendation and reasons therefor. It is the Adjutant General who effects coordination with the Selective Service System.
Part 5 of AR 635-20 provides that the individual requesting discharge based on conscientious objection will be retained in his unit and assigned duties providing the minimum of conflict with his professed beliefs pending a final decision on his application.
Brown was then ordered to draw combat equipment. He refused and charges were preferred against him under 10 U.S.C. § 891. On October 15, 1966, he was tried and convicted by Special Court-Martial and sentenced to three months confinement at hard labor. This sentence was suspended on the same day by the reviewing authority. On October 17, 1966, Brown was again ordered to draw combat equipment. He again refused and charges were preferred under 10 U.S.C. § 890. A pre-trial investigation was conducted pursuant to 10 U.S.C. § 832 and it was decided that instead of holding a second court-martial, the suspension of the first sentence should be vacated and Private Brown was ordered into confinement on November 16, 1966.
On November 29, 1966, a petition for a writ of habeas corpus was filed with this court under 28 U.S.C. § 2241, naming as respondents the Honorable Robert S. McNamara, Secretary of Defense; Honorable Stanley R. Resor, Secretary of the Army; and Major General John M. Hightower, Commanding General, U.S. Army Training Center, Infantry, U.S. Army, Fort Dix, New Jersey. It is petitioner's contention that he is being held in violation of his rights in that (a) denial of his application for discharge was in violation of 50 U.S.C.App. § 456(j), DOD 1300.6, and AR 635-20; (b) denial of his application for discharge was in violation of the due process clause of the fifth amendment because it was arbitrary and without any basis in fact; (c) denial of his application for discharge was in violation of the due process clause of the fifth amendment because no hearing was held and no reason for the denial of discharge was given; (d) denial of his application for discharge was a violation of equal protection of laws because he was not given the hearing rights accorded those seeking conscientious objector status prior to entering the armed forces and this differential treatment is without rational basis. We signed an Order to Show Cause on November 29, 1966.
Certain individuals have firm and sincere religious beliefs which make them conscientiously opposed to participation in the armed forces. Although not constitutionally compelled, recognition has been given to these beliefs in the form of an exemption from military training and service. See 50 U.S.C.App. § 456(j). This statutory exemption is a matter of legislative grace and has long been recognized as such. See, e.g., Fleming v. United States, 344 F.2d 912, 915 (10th Cir. 1965); Clark v. United States, 236 F.2d 13, 23 (9th Cir.), cert. denied, 352 U.S. 882, 77 S. Ct. 101, 1 L. Ed. 2d 80 (1956); United States v. Kenstler, 250 F. Supp. 833, 834 (W.D.Pa.1966).
If an individual is denied an exempt classification by his local board the statute gives him a right to appeal the denial to a board of appeals. After this appeal the registrant has no further administrative appeal and cannot directly attack the classification in court. If he still feels that his classification is incorrect his recourse is to refuse to submit to induction and then assert the allegedly improper classification as a defense in a criminal prosecution, see Dickinson v. United States, 346 U.S. 389, 74 S. Ct. 152, 98 L. Ed. 132 (1953); Estep v. United States, 327 U.S. 114, 66 S. Ct. 423, 90 L. Ed. 567 (1946); or to bring a habeas corpus action after he has been called for service and inducted. Cf. Orloff v. Willoughby, 345 U.S. 83, 73 S. Ct. 534, 97 L. Ed. 842 (1953); Cox v. Wedemeyer, 192 F.2d 920 (9th Cir. 1951). In either case the scope of judicial review is limited to a determination of whether there is any basis in fact for the classification. See Estep v. United States, 327 U.S. 114, 66 S. Ct. 423, 90 L. Ed. ...