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REINHARD v. GORMAN

March 9, 1979

Jeffrey D. REINHARD, Petitioner,
v.
Major General Paul F. GORMAN et al., Respondents



The opinion of the court was delivered by: GESELL

MEMORANDUM AND ORDER

Petitioner has filed for a writ of habeas corpus seeking his release from the Army based on conscientious objection. His application for a discharge was denied by the military after it conducted a full and proper series of investigations and hearings. No procedural error is claimed to have occurred during these proceedings. The matter is now before the Court on the administrative record and the sole issue presented is whether there exists any factual basis for the decision of the Conscientious Objector Review Board ("Board") which was adverse to the petitioner. See Witmer v. United States, 348 U.S. 375, 379-83, 75 S. Ct. 392, 99 L. Ed. 428 (1955); Bortree v. Resor, 144 U.S.App.D.C. 300, 445 F.2d 776 (1971); Nurnberg v. Froehlke, 489 F.2d 843 (2d Cir. 1973).

 The applicable regulations read, in pertinent part, as follows:

 
(Requests) for conscientious objector classification after entering military service will not be favorably considered when:
 
(1) Based on conscientious objection which existed and satisfied the requirements for classification as a conscientious objector . . ., but which was not claimed prior to . . . enlistment . . . . 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.
 
(3) Based solely upon considerations of policy, pragmatism or expediency. . . .
 
(5) Based upon insincerity.
 
AR 600-43, P 1-4a.
 
Present Army policy does not allow applicants who held their beliefs prior to entry into military service to be discharged or reclassified, but does extend to those who have had a real change (or development) of belief since then. The difficulty here comes when the applicant has not undergone any sudden, easily identifiable experiences or exposure to new ideas, but may have matured gradually in such a way that old beliefs have new meanings in his/her life (crystallization). AR 600-43 Appendix C- Informal Guide for the Investigating Officer, P C-2d.

 Under these provisions, this case presents two principal issues of fact:

 
(1) Is petitioner sincere when he now asserts that he is opposed to war in any form?
 
(2) If so, did petitioner hold that view prior to the time he volunteered for military service or did that view crystallize and become fixed only after his entering upon his military duties?

 The Court's role in a case of this nature is highly circumscribed. Generally, the courts show "extreme reluctance to interfere" in matters of military personnel where the military has lawfully exercised its discretion. Dilley v. Alexander, 603 F.2d 914, 919 (D.C.Cir., 1979). When the military has denied an application for conscientious objector status, such a decision may be overturned only if it rests upon no basis in fact. Bortree v. Resor, supra, 144 U.S.App.D.C. 300, 445 F.2d at 778 n.1, 781. In making such a determination, however, the Court must thoroughly examine the record and carefully scrutinize the logic and reasoning of the Board. See Bortree v. Resor, supra. Following such a review in this case and considering the briefs and arguments of counsel, the Court finds no factual basis for the Board's finding that petitioner lacks the requisite sincerity or for its conclusion that petitioner's conscientious objection to all war was completely fixed prior to his enlistment.

 Petitioner is a college graduate who has, in response to intense questioning, meticulously and explicitly described his present beliefs. Many officers and others who have listened to him in the course of the processing of his application for release noted their belief that he was perhaps misguided, immature or confused but, nonetheless, sincere. See Goldstein v. Coleman, 339 F. Supp. 357, 365 (D.S.C.1972). A lack of philosophical depth to one's beliefs cannot be equated with insincerity of belief. In addition, the Board has pointed to no basis ...


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