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Aguayo v. Harvey

August 24, 2006


The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge


This matter comes before the Court on Agustin Aguayo's ("Aguayo") Petition for a Writ of Habeas Corpus [10]. Aguayo challenges the denial of his application for discharge from service as a conscientious objector. Upon consideration of the filings, the applicable law, and the entire record herein, the Court concludes that the petition will be denied.


The Department of Defense has established procedures for processing applications for discharge on the basis of conscientious objection. See 32 C.F.R. part 75 ("Conscientious Objectors"). To implement these regulations, the Army issued Army Regulation ("AR") 600-43, which defines conscientious objection as a "firm, fixed and sincere objection to participation in war in any form or the bearing of arms, because of religious training and belief." AR 600-43, Glossary § II ("Terms"). The regulation defines religious training and belief as "belief in an external power or being or deeply held moral or ethical belief, to which all else is subordinate or upon which all else is ultimately dependent, and which has the power or force to affect moral well-being . . . . The term 'religious training and belief' may include solely moral or ethical beliefs even though the applicant himself may not characterize these beliefs as 'religious' in traditional sense..." Id. A applicant for discharge based on conscientious objection (known as "1-O status") must demonstrate that he or she meets this definition by clear and convincing evidence. AR 600-43, ¶ 1-7(c).

Specialist Agustin Aguayo ("Petitioner"), a soldier in the United States Army ("Army"), requested a discharge from service, alleging conscientious objector ("CO") status. Petitioner voluntarily enlisted in the Army on November 19, 2002, for eight years with four years of active duty. R. at 2, 13. He entered service on January 14, 2003. In February 2004, shortly after arriving at his unit and receiving notice of a deployment to Iraq, Aguayo submitted an application for discharge on the basis of conscientious objection. R. at 47, 62-63. Chaplain Downs and a psychologist interviewed petitioner in February of 2004. Following the interviews, Colonel Randal A. Dragon appointed Captain Sean Foster as the Investigating Officer ("IO"). After the investigation, the IO recommended that petitioner be granted conscientious objector status. R. at 110. On March 3, 2004, petitioner waived his rebuttal rights and the IO signed his Findings and Recommendations Memorandum on March 20, 2004. R. 53-54.

Following, the IO's recommendation of approval, Aguayo's Battalion and Brigade Commanders recommended disapproval. R. at 55-58. After receiving legal review from the Staff Judge Advocate, the Commanding General, Major General John R. S. Batiste, also recommended disapproval of petitioner's application on May 23, 2004. R. at 46. Attached to Major General Batiste's recommendation was a memorandum from the Staff Judge Advocate, which recommended disapproval for the following reasons:

a. PFC Aguayo's convictions do not appear to be sincerely held. CPT Foster conducted an extensive interview with PFC Aguayo and a thorough investigation into his background. PFC Aguayo is a medic. He has not persuasively shown how his duties as a medic are incompatible with his newly discovered beliefs, other than stating he feels he was misled by his recruiter, and he expected to work in a hospital. The timing of his application raises doubts as well. Only days prior to his unit's deployment to Iraq, PFC Aguayo submitted his application. Chaplain Downs agreed that "the timing of his request makes it questionable." In addition, PFC Aguayo is applying for CO Status (1-O) together with his friend, also a medic, PFC Benson.

b. PFC Aguayo did not identify any specific ways he has altered his behavior to accommodate his beliefs. Although practicing a religion is not a requirement for CO approval, PFC Aguayo has not discussed any equally significant source of his beliefs other than he was raised in a kind and respectful family. The evidence shows PFC Aguayo performing well as a medic. As stated by the battalion commander, LTC Sinclair, he desires to get out of the deployment and the Army, and he is using this process in an attempt to end his service early.

Pet. at 7-8.

On June 24, 2004 and again on July 14, 2004, Aguayo submitted a rebuttal to Major General Batiste's recommendation, arguing that the recommendation did not contain sufficient reasons for decision. Id. On July 14, 2004, the Army rejected Aguayo's rebuttal as procedurally defaulted because his application for discharge had already been submitted. Id. On July 30, 2004, the Department of the Army Conscientious Objector Review Board ("DACORB") determined that SPC Aguayo did not qualify as a conscientious objector and therefore was not entitled to be separated from service. R. at 131.

Aguayo filed his petition in this Court on August 5, 2005. On August 15, 2005, the Court issued an Order to show cause why the writ should not issue. The Army withdrew its denial of Aguayo's application and agreed to consider Aguayo's rebuttal. This Court stayed this case until further order. On January 30, 2006, the Army again denied Aguayo's application. R. at 89. Petitioner amended the petition on March 13, 2006. On April 10, 2006 the Court lifted the stay and established a briefing schedule.


Petitioner is challenging an internal military personnel decision. Military personnel decisions are afforded substantial deference. Piersal v. Winter, 435 F.3d 319 (D.C. Cir. 2006). The Court does not weigh the evidence or test whether substantial evidence supports the military's position. Witmer v. United States, 348 U.S. 375, 380-81 (1955). Instead, the court must "search the [administrative] record for some affirmative evidence to support the local board's overt or implicit finding." Dickinson v. United States, 346 U.S. 389, 396 (1953). In other ...

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