Robert J. Armstrong, Jr. v. Hon. Melvin Laird, Secretary of Defense ( 1972 )

BREITENSTEIN, Circuit Judge.

Petitioner-appellant Armstrong brought habeas corpus for release from the Army on CO grounds. He was inducted in January, 1968. In August of that year he applied for a CO discharge. In February, 1969, the Conscientious Objector Review Board unanimously rejected his application. The district court, 325 F.Supp. 1042, held that there was a basis in fact for the action of the Review Board and dismissed the petition.

The application for a CO discharge sets forth the petitioner’s religious training in the Lutheran Church, his belief in God, his opposition to violence, and statement that “I am a conscientious objector to all war.” The application is supported by a statement from his pastor and statements from six others who are either relatives or friends. Also included were a letter from Chaplain Sterling which recognized a religious belief, but said that sincerity was doubtful because Armstrong had been ordered to Vietnam; a statement from unit commander Clark recommending approval and commenting that Armstrong appeared sincere in his belief; and a statement from the assistant adjutant to the commanding officer recommending disapproval on the basis of Chaplain Sterling’s report. The government brief concedes that “Armstrong made out a prima facie case of conscientious objection by his application for discharge.”

The application was sent to the Conscientious Objector Review Board, the three members of which took the following separate actions:

Major Whitman: “Recommend disapproval — based on personal moral beliefs which didn’t ‘crystallize’ until he received orders for Vn.”

Chaplain Turner: “This young MAN has taken too seriously the training techniques of basic training. He is afraid! There is a psychological basis for his request but cannot be considered a religious belief. He gives no basis that this comes from training or any other influence which would qualify him as a CO.”

Major Weiler: “I doubt a sincere religious objection to war.”

The reviewing officer disapproved the application on the ground that the “Applicant’s objection to service is not based upon religious training and belief.” The Secretary of the Army disapproved for the reason given by the reviewing officer.

At trial the petitioner testified over the objection of the government. The evidence should not have been received. Court review is limited to the evidence which was before the Army and on which it acted. Bates v. Commander, First Coast Guard District, 1 Cir., 413 F.2d 475, 477 n. 2. The district court, apparently after considering both the Army records and the testimony of the petitioner, held that there was a basis in fact for the conclusion of insincerity and for the finding that “objection to service is not based on religious training or belief.” We cannot accept the findings and conclusion of the trial court because we do not know to what extent they are based on the Army file or on the improperly received evidence.

To qualify for CO classification within the operation of the Selective Service System, a registrant must show (1) that he is conscientiously opposed to participation in war in any form, Gillette v. United States, 401 U.S. 437, 443, 91 S.Ct. 828, 28 L.Ed.2d 168; (2) that his opposition is based upon “religious training and belief” as the term has been construed in United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733, and Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308; and (3) that his objection is sincere, Witmer v. United States, 348 U.S. 375, 481-482, 75 S.Ct. 392, 99 L.Ed. 428. The three tests are cumulative and each must be satisfied. Clay v. United States, 403 U.S. 698, 700, 91 S.Ct. 2068, 29 L.Ed.2d 810. Although the mentioned decisions arise out of Selective Service cases, we believe that under Eh-lert v. United States, 402 U.S. 99, 106-107, 91 S.Ct. 1319, 28 L.Ed.2d 625, they apply equally to those who have performed a portion of their obligated service and request discharge because of conscientious objection.

The statements of the members of the Review Board are unsatisfactory, confused, and internally inconsistent. There is no consensus. One member referred to “personal moral beliefs,” another to a “psychological basis * * * [which] cannot be considered a religious belief,” and the third doubted “a sincere religious objection to war.” It is impossible to determine on which grounds the Appeal Board made its recommendation.

After considering the application and the recommendation of the Board, the reviewing officer, whose position was accepted by the Secretary, disapproved on the sole basis of lack of “religious training and belief.” By placing his action on the religious component of the three-part test for determination of CO status, the reviewing officer, by implication, seems to have been satisfied that the two other tests, sincerity and objection to all war, were met. Accordingly, disapproval depends entirely on the religious factor. Our consideration of the record convinces us that under Seeger and Welsh standards there is no factual basis for the rejection of the CO claim because of lack of religious training and belief. Absent a basis in fact, the rejection of the CO application cannot be sustained.

Reversed and remanded with directions to grant the writ.