Robert S. Kurtz v. Melvin Laird

THORNBERRY, Circuit Judge:

In his application for habeas corpus relief, appellant Kurtz sought to be discharged from the Army on the ground that subsequent to his entry into the service he became a conscientious objector. The Army’s Class 1-0 Conscientious Review Board disapproved appellant’s application on the sole ground “that Kurtz is not opposed to participation in all wars, but is opposed to participation in a particular war.” The District Court denied the writ of habeas corpus on the ground that appellant’s “application, taken as a whole, could fairly be said to express opposition only to particular wars, and that there existed a basis in fact for the Review Board’s denial of petitioner’s application.” After carefully reviewing the record, we affirm.

Appellant is a physician currently serving in the Army. He joined the service during his internship at Johns Hopkins Hospital in 1968 pursuant to the “Berry Plan,” a delayed-entry program, under which he received a commission in the Army Reserve and agreed to serve two years of active duty following his residency.

After two years of residency, appellant received orders to report for active duty on July 23, 1970. Approximately one week prior to reporting, he submitted an application for discharge under the provisions of Army Regulation 635-20 and Department of Defense Directive 1300.6, which set out the policy and procedure for considering applications of military personnel whose objections develop subsequent to their entry into the military service. See 50 U.S.C.A. App. § 456(j) (1968); United States ex rel. Brooks v. Clifford, 4 Cir. 1969, 409 F.2d 700, 702.

After reporting for duty as ordered, appellant was interviewed by an Army chaplain and another interviewing officer, both of whom believed that appellant was sincere and recommended that he be discharged. Appellant attached to his application letters from a former school teacher and a long-time friend that attested to his sincerity but said little about the precise nature of his beliefs. He also included a letter from his wife that stated that because of his beliefs, he could not “participate in the making of war in any capacity.” Finally, he attached a letter from the national chairman of the Jewish Peace Fellowship, an organization for Jewish conscientious objectors, stating that appellant’s application was completely harmonious with the teachings and traditions of Judaism. Appellant’s Commanding Officer and Commanding General, however, without personally interviewing him, recommended disapproval of his application.

An applicant for classification as a conscientious objector must satisfy three basic tests. He must show that he is conscientiously opposed to war in any form, Gillette v. United States, 401 U.S. 437, 91 S.Ct. 828, 28 L.Ed.2d 168, 1971; that his opposition is based upon religious training and belief, as that term has been construed, Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308, 1970; United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733, 1965; and that his objection is sincere. Witmer v. United States, 348 U.S. 375, 75 S.Ct. 392, 99 L.Ed. 428, 1955. The Government has conceded that appellant satisfied the latter two tests. Thus the only issue before this Court is whether Kurtz showed that he is conscientiously opposed to war in any form.¹

After reading Dr. Kurtz’ conscientious objector application, we are convinced that he is deeply committed to the beliefs that he holds. Nevertheless, we believe that the Congressional definition of the conscientious objector exemption, 50 U.S.C.A. App. § 456(j) (1968), and the limitations on our reviewing power, Hel-wick v. Laird, 5 Cir. 1971, 438 F.2d 959, require us to affirm the lower court. In Helwick, this Court said

Federal courts have a narrow range within which to review the conscientious objector claims of active military personnel. * * * [0]ur scope of review is limited to ascertaining whether there is any basis in fact for the Army’s finding that an individual has not presented a valid conscientious objector claim.

* * * * * •»

* * * [T]he Board is not at liberty merely to disbelieve the claimant. There must be some facts in his application — hard, provable, reliable facts — that provide a basis for disbelieving the claimant.

Helwick at 962-963.

There was, unquestionably a “basis in fact,” “hard, provable, and reliable,” for the Army Review Board’s determination that Dr. Kurtz is not opposed “to war in any form.” The facts on which we rely to uphold the Army Review Board’s decision come from Dr. Kurtz’ conscientious objector application, and are the same facts upon which the Army Review Board relied. We quote from the application:

[T]o be against the war in Vietnam is really to be against all wars, because the characteristics of this war are a prototype and a model of present and future wars in the world as it exists today. War for the rest of the century appears to be of the guerrilla type with overtones of conventional war supported by the great powers and the threat of thermonuclear destruction always in the background. One cannot oppose the massive violence committed against the Vietnamese and yet feel it possible to participate in any other conceivable war.

* * * [T]his war is, in capsule, all wars conceivable to me * * *.

* * * Modern warfare implies unlimited destruction and murder in which I cannot participate.

We do not believe that Dr. Kurtz’ beliefs, as he himself defined them, can be said to fit within the definition of “opposition to war in any form.” His position is that he is opposed to “war as we know it today.” We do not believe that opposition to “war as we know it today” is what Congress meant when it enacted the “war in any form” standard. Moreover, we agree with the judge below that an examination of Dr. Kurtz’ C-0 application reveals “that in nearly every case [Dr. Kurtz] conditioned his statements [opposing participation in war] by references either to the Vietnam war directly, or to his own views on the characteristics of that war,” and conclude that one could infer from Dr. Kurtz’ application that he would not object to participation in a war waged with less sophisticated weapons, a war that did not result in the large-scale killing of innocent civilians or a war waged as a matter of national survival rather than as an “instrument of policy.”

Affirmed.

1 . Paragraph 3b of Army Regulation 635-20 provides that requests for discharge growing out of experience prior to entering military service, but which did not become fixed until entry into the service, will not be favorably considered when “based on objection to a particular war.”