and denied by the Selective Service System prior to induction.'
In his amended petition petitioner contends that his detention, restraint and custody is unlawful because he is a conscientious objector within the meaning of Army Regulation 635-20, and is accordingly exempt from service in the Army. Army Regulation 635-20 provides in relevant parts as follows:
'3. Policy. a. Consideration will be given to requests for separation based on bona fide conscientious objection to participation in war, in any form, when such objection develops subsequent to entry into the active military service.
b. Federal courts have held that a claim to exemption from military service under Selective Service laws must be interposed prior to notice of induction, and failure to make timely claim for exemption constitutes a waiver of the right to claim. However, claims based on conscientious objection growing out of experiences prior to entering military service, but which did not become fixed until entry into the service, will be considered. Requests for discharge after entering military service will not be accepted when -- (emphasis supplied).
(2) Based solely on conscientious objection claimed and denied by the Selective Service System prior to induction. (emphasis supplied).
c. All requests for discharge based on conscientious objections will be considered on an individual basis in accordance with the facts and special circumstances in a particular case.'
Respondent contends that petitioner's application for discharge was properly denied by the Army authorities because said application falls squarely within § 3(b)(2) of the cited regulation, in that his present claim is based solely on conscientious objection claimed and denied by the Selective Service System prior to induction. If this contention is accepted by this Court then it would appear that there was a basis in fact to support the Army's denial of petitioner's application. However, petitioner asserts that the claim upon which his application for discharge is based is not the same claim that was denied by the Selective Service Board. In support of this contention petitioner points to the fact his initial claim based on religious beliefs was denied on the ground that petitioner's connection with the Muslim religion was 'most recent and incomplete.' In further support petitioner cites the Selective Service Board's finding that he did not possess the requisite 'sincerity' to justify re-classification to conscientious objector prior to induction. However, there seems to be no dispute that petitioner is presently sincere, and was so at the time the present application for discharge was initiated. The evidence before the Army Conscientious Objector Review Board was that petitioner was sincere in his beliefs. There was no evidence to the contrary. There was also uncontradicted evidence that this new conviction is based on the combination of petitioner's religious beliefs formed in the past and the result of the experience gained from combat training subsequent to induction which 'strengthened' his convictions. This combination represents then, not the same claim which was considered by the Selective Service Board, but rather, it represents a different claim, albeit based in part on the unmatured religious beliefs which petitioner presented in support of the initial claim but which became fixed after entering the service. Thus, it is obvious that the Army Conscientious Objector Board failed to follow its own regulations and erred when it denied petitioner's application solely on conscientious objection claimed and denied by the Selective Service System prior to induction. The Selective Service System never had before it petitioner's sincere claim based on conscientious objection growing out of experiences prior to entering military service and which became fixed after entering military service. Accordingly the finding of the Army Conscientious Review Board has no basis in fact and its decision is arbitrary and capricious.
This Court therefore concludes that petitioner should be released in accordance with Army Regulation 635-20. The issuance of the writ shall be stayed a reasonable time to allow the Army to properly discharge the petitioner.