The opinion of the court was delivered by: WADDY
This case comes before the Court on a return to a rule to show cause which was issued upon a petition for a Writ of Habeas Corpus. In the main the facts are not in dispute. Petitioner, Richard Kepple, enlisted in the United States Army on April 18, 1968. He completed basic training and advanced individual training at Fort Gordon, Georgia. In December of 1968 he was ordered to report to the Overseas Replacement Station at Fort Dix, New Jersey, and was assigned to the Overseas Replacement Command for further shipment to the Republic of Viet Nam. On January 15, 1969 he submitted his application for discharge from the Army as a conscientious objector. In accordance with the applicable Army Regulations he was interviewed by a psychiatrist, a chaplain and other military officers. The psychiatrist found that Kepple was mentally sound. The Chaplain's report of the interview was as follows:
"1. Pvt. E2 Richard M. Kepple RA 11832123 has come to me for counselling regarding his conscientious objection.
"2. We have counselled at some length and I feel that he is in good conscience. He is very idealistic and has a background of thinking intelligently and thoroughly.
"3. Recommend that Pvt. Kepple's request be given consideration."
On January 15, 1969 Kepple's company commander recommended that the application be disapproved on the ground that Kepple's conscientious objection existed prior to induction, but that Kepple had failed to assert its existence prior to induction, and had, ipso facto, waived the right to assert the claim subsequent to induction. Each of the officers in Kepple's chain of command recommended disapproval for the aforementioned reason. On May 12, 1969 the Army Review Board disapproved the application on the ground that the "Application evidences no change in religious beliefs since entry into military service and is based on a personal moral code." On October 6, 1969, Kepple was transferred to the Overseas Replacement Station at Fort Dix, New Jersey, for further assignment to the Republic of Viet Nam. Thereafter, on November 12, 1969, Kepple submitted a second application for discharge. The second application was disapproved summarily on the ground that it was substantially the same as the initial application. On December 11, 1969, Kepple requested permission to submit a third application but this request was denied. On the same date Kepple received orders to ship to Viet Nam. However, Kepple refused to follow said orders and was placed in the stockade. On December 12, 1969 Kepple was released from the stockade and placed aboard an airplane which transported him to Viet Nam where he presently serves in the Army. The instant action was commenced on February 2, 1970. The order to show cause was issued on the same date.
The scope of review in the instant action is limited to a determination of whether the Army had a "basis in fact" to support its refusal to discharge Kepple. United States v. Seeger, 380 U.S. 163, 185, 85 S. Ct. 850, 13 L. Ed. 2d 733 (1965); Estep v. United States, 327 U.S. 114, 66 S. Ct. 423, 90 L. Ed. 567 (1946); United States ex rel. Sheldon v. O'Malley, 137 U.S. App. D.C. 141, 420 F.2d 1344 (Dec. 19, 1969). In making this determination it is necessary to examine the facts which the Army had before it when it denied Kepple's application. In Kepple's initial application he stated:
"One of the main teachings of Jesus Christ was that every person is a potential temple of the Holy Ghost. Christ said, 'Know Ye not that you are all temples of the Holy Ghost.' Because I am a Catholic, I believe this firmly and I obey it. Since the beginning of my Catholic School Training one of the things that was drummed into me since grammar school was the fact that every person God made was made in his image and likeness. Could I kill anyone that God has made? I have asked myself this question and found the answer to be an emphatic 'No'. I am against any violence or use of a weapon to kill anyone."
"By having to kill a man, I would be placing a judgment on his right to live. In fact I would be condemning this man to death. It is God's right to judge. It is not mine."
The application is replete with statements which are in no way denied and which evidence Kepple's deep religious belief as a "progressive liberal Roman Catholic" and his total opposition to war and killing which grew out of that religious conviction.
Kepple's second application casts light on the genesis and maturation of his conscientious objection. In said ...