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12/19/69 United States of America v. Major General Charles S. O

December 19, 1969




Wilbur K. Miller, Senior Circuit Judge, McGowan and Robb, Circuit Judges.




McGOWAN, Circuit Judge:

This appeal is from an order of the District Court denying habeas corpus relief to an Army officer seeking discharge from the service as a conscientious objector. The case was heard upon appellees' return to an order to show cause, in which return appellees moved the dismissal of the petition for the writ for want of subject matter jurisdiction or, alternatively, for failure to state a cause of action. The District Court, in a bare order which made no reference to these alternative claims, dismissed the petition. For the reasons set forth hereinafter, this was error; and we reverse. *fn1 I

In September of 1967 appellant enlisted in the Army, and entered upon active duty early in 1968. He successfully applied for Officers' Candidate School, and emerged from that in November of 1968 as a second lieutenant in the infantry. While serving at Fort Knox as an infantry training officer, appellant asked for a psychiatric examination, which resulted in his being classified by a Medical Board as unsuited for combat. As suggested by his Battalion Commander because of this restriction, appellant sought a transfer to another branch, but his application to this end was denied, and orders were issued assigning appellant to Viet Nam for noncombatant duty. *fn2 While on leave pending shipment abroad, appellant filed with the Military District of Washington at Fort McNair an application for discharge from the Army as one who had become a conscientious objector after enlistment.

Army Regulation No. 635-20, issued January 22, 1969, under the authority of Department of Defense Directive 1300.6, dated May 10, 1968, embodies the policies and procedures to be observed in the case of "military personnel who, by reason of religious training and belief, claim conscientious objection to participation in war in any form." The general policy is stated to be that consideration will be given to separation requests "when such (conscientious) objection develops subsequent to entry into the active military service." But it is also said that "requests for discharge after entering military service will not be accepted when --

(3) Based on essentially political, sociological, or philosophical views, or on a merely personal moral code.

As contemplated by the procedure prescribed in AR 635-20, appellant was interviewed by an Army chaplain, an Army psychiatrist, and an officer "in the grade of 0-3 or higher, who is knowledgeable in policies and procedures relating to conscientious objector matters." Their findings and recommendations were made part of appellant's application file, which was forwarded to the Adjutant General at Army Headquarters in Washington. There it was reviewed by a board of three officers, and thereafter the Adjutant General notified appellant that, "by order of the Secretary of the Army," his application was disapproved. The reason given was that "evidence presented indicates your objection to service is based upon a personal moral code and is politically and sociologically oriented."

In his application, appellant related his upbringing in the Jewish faith, to which he continues actively to adhere. His answer to the query in the application form as to the basis of his claim of conscientious objection is set forth in full in the margin. *fn3 Elsewhere he represents his belief to be that moral force is the only kind of force in which he believes, because it "comes from God alone." Attached to his application are letters from two rabbis, including the leader of the congregation with which appellant has been affiliated throughout his life, testifying to the sincerity of his convictions, their direct derivation from his religious training and beliefs, and their legitimacy in terms of a Jewish religious tradition which, although "not exclusively pacifist in principle," contains within itself "a strong and authentic strand of thought . . . which supports conscientious objection to war and seeks to limit the exercise of violence of any kind. . . ."

There are letters from school and college teachers, and fellow students, of appellant who report his religious participation and sensitivity while under their observation, and who profess complete confidence in the sincerity of the conclusions to which his religious feelings have brought him. There is a letter from an Army officer -- an Assistant Staff Judge Advocate at Fort Knox -- who counseled appellant about the potentially serious consequences to himself entailed in his decision to persist in conscientious objection, and who concludes his letter by saying that "it is my opinion that his present actions are motivated by his strong personal and religious convictions of objection to participation in war."

The function of the Army psychiatrist who interviewed appellant once his application was filed was not to do more than make certain that he was free from psychiatric disease and capable of knowing what he was doing. He found that appellant was "mentally responsible, able to distinguish right from wrong and to adhere to the right, has the mental capacity to understand and participate in Board proceedings, and . . . is able to cooperate in his own defense." The interviewing Army chaplain recommended that appellant's application be granted; the basis for this recommendation was stated in these terms:

"I believe that he is completely sincere in declaring himself to be an objector to participation in any type of violence. It is my opinion that Lieutenant Sheldon, who is a sensitive person seeking to establish his own identity and purpose in life, has agonized between a desire to perform his obligation as a citizen and yet live in accordance with his own nature. I believe that his views crystallized when his military assignment as an officer training men for combat clashed with seeds of thought that had been implanted earlier, in his home, his synagogue, in Quaker camps he attended, and in his college. I believe that frustrated attempts to transfer to another Branch (other than his basic, Infantry) led to his growing conviction that he could not, in conscience, be a part of any war effort."

The third interviewing officer characterized appellant as giving "every evidence of being a very sincere and sensitive person . . . raised in a religious atmosphere . . ." and possessed of a Jewish-oriented higher education and training in philosophy "because of his close adherence to the faith of Judaism and his strong belief in God." This officer, however, found "the sudden on-set of [appellant's] strong convictions" to be "perplexing." He thought that there might be more than coincidence in the crystallization of appellant's doubts after the denial of his branch transfer and his assignment to foreign service. Although he concluded that ...

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