Rothfuss v. Resor
Rothfuss v. Resor
Opinion of the Court
These two cases, consolidated for oral argument, come to us on appeal from denials of habeas corpus relief by the district court for the Western District of Texas. We find it convenient to our purposes to dispose of the two appeals by a single opinion.
Both appellants are service men on active duty with the United States Army. Each sought discharge from the Army on grounds of conscientious objection to both combatant and noncombatant military service. The denials of application for discharge by the Army were upheld by the district court’s denial of habeas relief. We remand the cases for further proceedings before the district court.
Rothfuss v. Resor, No. 80,731
Carl F. Rothfuss was inducted into the Army on June 20, 1969. He was a graduate of Michigan State University and had taken some post-graduate work at that institution prior to his induction. On June 24, 1970, Rothfuss filed an application for discharge as a Class 1-0 conscientious objector
In accordance with Army regulations, Rothfuss was interviewed by an Army Chaplain. Chaplain Louis J. Karry reported his conclusions:
“This is to' certify that I, Chaplain (LTC) Louis J. Karry, have counselled with PFC Carl F. Rothfuss, SSAN 054-38-8732, in reference to his claim to be a conscientious objector. After much discussion it was learned that the claimant’s views are not of a political, sociological, or philosophical nature, nor the result of previous religious training. I believe that these viev/s and convictions are*556 of a religious nature and prompted by the man’s conscience, and personal conviction. I have found him most sincere in his convictions.”
With this evidence before an Army Conscientious Objection Review Board, the appellant was interviewed by the Board. His immediate commanding officer, Captain V. Pittman, stated his conclusions after the interview:
“I doubt that PFC Rothfuss’ beliefs are as deep and concrete as he states. They appear to be founded on a personal moral code based on apprehension of his pending assignment to Vietnam.”
Colonel Paul Chmar, another reviewing officer, stated:
“After interviewing PFC Rothfuss, the undersigned is of the opinion that his beliefs of not being able to serve in the armed forces are based more on aversion to the war in Vietnam rather than a deep seated, life long religious concept. During the interview it was brought out that, had this individual’s military training led to an assignment in Germany or Western Europe he probably would not have developed the feelings of his inability to serve in the armed forces. The sincerity of the application is further questioned in that PFC Rothfuss indicated his intent to apply for 1-0 status only after notification of assignment to Vietnam. Concurrently three of his classmates submitted similar applications.”
Captain John J. Doggett, III, the third officer to review the applicant’s claim for discharge, concluded:
“It is interesting to note that PFC Rothfuss’ position and beliefs have completely changed in a relatively short time. PFC Rothfuss did not make an application for conscientious objector status until immediately before he was to be sent to Vietnam. He made no application nor made his alleged beliefs known until after he had completed basic combat training and advanced training in Vietnamese language. Also PFC Rothfuss appears to be mainly concerned with the Vietnam war and he pays lip service to an objection against all wars so as to come within the purview of Army regulations. PFC Rothfuss’ explanation of his religious beliefs reveals that he merely re-examined his position and finds that now serving in the military is a violation of his conscious (sic) and belief in the teachings of Christ. This belief does not appear to be a primary controlling force in this man’s life and has not been developed through any religious training or self contemplation comparable in rigor and dedication to those processes by which traditional religious convictions are formulated.”
The application was then forwarded by the Review Board to the Adjutant General of the Army with an unfavorable recommendation based upon a statement that applicant’s beliefs were not religious in nature and were not sincerely held by the applicant. The Adjutant General, on August 31, 1970, denied Rothfuss’ application with the notation that “applicant’s views are not truly held”. We interpret this to mean that the discharge was not denied on the basis of the conclusions of the interviewing officers that Rothfuss' beliefs were not based on religious training and belief, but rather that the denial was based solely on the interviewing officers’ bare conclusions with regard to the applicant’s sincerity.
Petition for habeas corpus was filed in the district court. After a non-evidentiary hearing the district judge denied the petition for writ of habeas cor
O’Brien v. Resor, No. 30,850
Lawrence P. O’Brien was inducted into the Army on September 5, 1969. He was then a graduate of the University of Notre Dame. After more than ten months on active duty, on July 14, 1970, he filed an application for discharge under Army Regulation 635-20 as a Class 1-0 conscientious objector.
After interviewing O’Brien, Captain Pittman stated his conclusion:
“PFC O’Brien states that he did not reach his decision to apply for discharge UP AR 635-20 until he received orders for the Republic of Vietnam. Although he may be sincere about his dislike for violence, I believe that his primary motivation is a natural concern for his wife and expectant child.”
Colonel Chmar concurred in Captain Pitman’s doubts about the sincerity of O’Brien’s beliefs:
“Although PFC O’Brien received his schooling in religious institutions and comes from a family devoted to its religious beliefs, there is no indication that he held conscientious objector views until receiving his orders for Vietnam. During an interview, PFC O’Brien was queried as to his statement that he was a I-A-0 after completing basic training and upon receiving orders to the Vietnamese language school here at Fort Bliss. He stated that he held this belief in his own mind, but had not officially communicated his position to anyone in authority.
“The sincerity of the application is questioned based on the time of submission and after having served 10 months in the Armed Forces. In addition to PFC O’Brien’s application, two of his classmates submitted 1-0 requests at the same time.”
On September 16, 1970, O’Brien’s application was disapproved by the Adjutant General of the Army with the notation that “Applicant’s professed views are not truly held”. Without holding a hearing, the district court found that the Army had acted with basis in fact in denying the claimant’s request and dismissed the petition for writ of habeas corpus.
The Issues
In these cases we are required to review the district court’s conclusion that the Army has a basis in fact for holding that the applicants were not sincere in their objections to participation to war.
“* * * the 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 also referred to a similar statement we made in Kessler v. United States, 5 Cir. 1969, 406 F.2d 151, 156:
«•* x- * tpe disbelief of Selective Service officials will not justify the rejection of a claim for conscientious objector status unless there is some affirmative evidence to support the rejection of the claimed exemption or there is something in the record which substantially blurs the picture painted by the registrant and thus casts doubt on his sincerity, Batterton v. United States, 8 Cir. 1958, 260 F.2d 233.”
Simply stated, then, once an applicant for conscientious objector status has made out a prima facie case, the reviewing officials, whether Selective Service boards before induction or Army review boards in a post-induction situation, may not deny the claim absent sufficient evidence in the record amounting to a basis in fact to justify such denial. United States v. Davila, 5 Cir. 1970, 429 F.2d 481; United States v. White, 5 Cir. 1969, 421 F.2d 487.
Difficulty is encountered when we try to apply these principles to the records before us here. In both cases the applicants clearly made out prima facie cases for discharge by reason of conscientious objection. In both cases, the applications were denied on grounds of lack of sincerity, and the primary factor relied upon by the Army to establish basis in fact to doubt the applicants’ sincerity was the timing of the filing of the claim, i. e., when shipment to Vietnam was imminent. We think that in reviewing the sincerity of claimed conscientious objectors the Army can legitimately consider the fact that the application comes on the eve of deployment of the claimant to a combat zone. A contrary holding would run counter to all that we know about the instinct for self-preservation. Indeed we have held that in conscientious objector cases any fact which casts doubt on the veracity and sincerity of the applicant can be considered, and that the timing of the application is such a fact. United States v. Henderson, 5 Cir. 1969, 411 F.2d 224; Carson v. United States, 5 Cir. 1969, 411 F.2d 631; Accord, United States ex rel. Hemes v. McNulty, 7 Cir. 1970, 432 F.2d 1182; Packard v. Rollins, 8 Cir. 1970, 422 F.2d 525; Salamy v. United States, 10 Cir. 1967, 379 F.2d 838. Cf. Ehlert v. United States, 1971, 402 U.S. 99, 91 S.Ct. 1319, 28 L.Ed.2d 625 [April 21, 1971]. We conclude, nevertheless, that the timing of an application, as a solitary fact without other support in the record, is by itself not enough to provide a basis in fact for rejection of a prima facie showing of conscientious objection. United States ex rel. Brooks v. Clifford, 4 Cir. 1969, 409 F.2d 700; Johnson v. Resor, 321 F.Supp. 563 (D. Mass. 1971). Cf. Bates v. Commander, First Coast Guard District, 1 Cir. 1969, 413 F.2d 475. Contra Speer v. Hedrick, 9 Cir. 1969, 419 F.2d 804.
The very existence of Army Regulation 635-20 is a recognition of the fact that crystallization of conscientious objector beliefs may occur as readily after induction as before. Further, the courts have recognized that crystallization may occur in the face of imminent induction or after considerable time spent in military service. United States v. Wingerter, 5 Cir. 1970, 423 F.2d 1015; Packard v. Rollins, supra; United States ex rel. Brooks v. Clifford, supra. One is entitled to suspect the motives of an applicant who has completed his basic training and other military assignments without incident, and belatedly objects when it appears that his personal safety may be jeopardized. Neverthe
If the record before us revealed timing of the application as the only factor which cast doubt on the applicants’ sincerity, our views set out above would militate that we reverse and remand this case with directions to grant the writs sought. Unfortunately the record in its present form fails adequately to reveal whether or not additional valid grounds existed for the Army’s denial of the two applications. Rothfuss’ record here contains a statement by Colonel Chmar to the effect that Rothfuss stated in his interview that he probably would not have filed his application had his overseas assignment been to Germany or Western Europe. Since Rothfuss filed an application claiming objection to combatant and concombatant service, such a statement if true might, when coupled with the timing of the application, be sufficient to provide the requisite basis in fact for the denial. In O’Brien’s case Captain Pittman stated that he believed that the applicant was motivated by concern for his wife and child, and not by any sincerely held beliefs against war. We find nothing sufficient in the record as presented here to support the officer’s conclusions as to insincerity. Since no transcript was made of the oral interviews with the applicants, we have no way of knowing what transpired in those meetings. It may be the interviewing officers’ statements are accurate summaries of evidence developed in the interviews which would constitute basis in fact for the denials. To the contrary the conclusions may be bald speculation on the part of the officers.
As an alternative procedure (and one entirely acceptable to us), the district court in its discretion may find it preferable to hold the cases in abeyance and direct that the Army hold hearings for the development of such basis in fact as existed for the doubt expressed by the Board members as to the sincerity of the two appellants. Upon the report of such hearings to the district court, findings of fact and conclusions of law will again be in order.
The point — indeed the essential thrust of our holding — is that upon a record made either in an Army hearing or a court hearing or both, facts must be developed to determine what bases in fact existed for the conclusionary views expressed by the members of the Army Review Boards involved in the two cases.
Upon remand the prior separate orders for stay enjoining removal- of the petitioners from the jurisdiction of this Court pending appeal entered by different panels of this Court shall remain in full force pending termination of the further proceedings below. The district court is directed to enter such orders as are necessary to effect this result.
Vacated and remanded for further proceedings.
. 32 C.F.R. § 1622.14 provides
In Class 1-0 shall be placed every registrant who would have been classified in Class I-A but for the fact that be has been found, by reason of religious training and belief, to be conscientiously opposed to participation in both combatant and noncombatant training and service in the armed forces.
. Army Regulation 635-20 governs the procedures and standards for the consideration of conscientious objector claims of active duty military personnel, when such objection occurs subsequent to entry into the active military service. Its ready availability and its five page length seem sufficient reason to forego reprinting it here.
. We mention this only to point out that all parties appear to agree that Roth-fuss’ claimed objection is sufficient to come within the ambit of “religious training and belief” as those words were interpreted by the Supreme Court in Welsh v. United States, 1970, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308. At the hearing before the district court counsel for the Army argued that the Army’s denial could be upheld on the finding of insincerity alone.
. See footnotes 1 and 2, supra.
. Claims of conscientious objection to military service by a serviceman are governed by the same standard of review as pre-induction claims to entitlement to conscientious objector status. Application of Tavlos, 5 Cir. 1970, 429 F.2d 859; Pitcher v. Laird, 5 Cir. 1970, 421 F.2d 1272.
. In United States ex rel. Hemes v. McNulty, 7 Cir. 1970, 432 F.2d 1182, at 1187, the Seventh Circuit recently noted the difficulty in judicially reviewing actions of administrative bodies acting upon claims for conscientious objector status when the administrative body fails to state those objective facts which are the basis for its decision. That Court suggested that all would profit if the reviewing boards would “briefly summarize in the record those facts, whether they be inconsistencies in action or written statements, shifty or evasive demeanor, appearance of unreliability, lateness of claim or any other factors reasonably causing the board to reach its conclusion.” We endorse the suggestion of our sister Circuit.
Reference
- Full Case Name
- PFC Carl F. ROTHFUSS v. Stanley RESOR, Secretary of the Army, and Colonel Paul Chmar, Fort Bliss, Texas, Respondents-Appellees PFC Lawrence P. O'BRIEN v. Stanley RESOR, Secretary of the Army, and Colonel Paul Chmar, Fort Bliss, Texas
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