Aguayo, Agustin v. Harvey, Francis

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 21, 2006 Decided February 16, 2007

No. 06-5241

AGUSTÍN AGUAYO,

APPELLANT

v.

FRANCIS J. HARVEY, SECRETARY OF THE ARMY,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 05cv01580)

Peter Goldberger argued the cause for appellant. With

him on the briefs was James R. Klimaski.

Kevin K. Robitaille, Assistant U.S. Attorney, argued the

cause for appellee. With him on the brief were Jeffrey A.

Taylor, U.S. Attorney, and R. Craig Lawrence, Assistant U.S.

Attorney.

Before: GINSBURG, Chief Judge, and SENTELLE and

RANDOLPH, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

2

SENTELLE, Circuit Judge: Agustín Aguayo, a soldier in

the United States Army, applied for a discharge as a

conscientious objector. The Army denied his application, and

Aguayo filed a petition for a writ of habeas corpus in the district

court. The court denied the petition, and Aguayo now appeals.

Because there is evidence in the record that supports the Army’s

decision to deny Aguayo’s application for conscientious

objector status, we affirm.

I

Aguayo volunteered to serve in the United States Army

in November 2002, when he was 30 years old. In his enlistment

agreement, Aguayo answered “no” to the following question:

Are you now or have you ever been a conscientious

objector? (That is, do you have, or have you ever had,

a firm, fixed, and sincere objection to participation in

war in any form or to the bearing of arms because of

religious belief or training?)

Aguayo committed to eight years in the Army, with four years

of active duty, and entered service as a healthcare specialist in

January 2003.

In February 2004, shortly before he was deployed to

Iraq, Aguayo applied for a discharge from the Army on the basis

of conscientious objection. It is the policy of the U.S. military

to grant conscientious objector (“CO”) status to any service

member:

(1) Who is conscientiously opposed to

participation in war in any form;

(2) Whose opposition is founded on religious

training and beliefs; and

3

(3) Whose position is sincere and deeply held.

32 C.F.R. § 75.5(a). An applicant who would have qualified for

CO status before entering the military, however, generally is not

eligible for CO classification once in the service. Id. § 75.4(a).

The Army has implemented this military-wide policy in Army

Regulation (“AR”) 600–43.1 A “Class 1-O” conscientious

objector is entitled to separation from the Army, while a “Class

1-A-O” objector will continue in military service in a

noncombatant status. See 32 C.F.R. § 75.3(a). Aguayo applied

only for Class 1-O status.

Aguayo explained in his application that “[m]y moral

view does not allow me to take the life of another human being,”

and that his “progressive training in arms and other military

operations have progressively, and from the very beginning,

caused me great anguish and guilt.” Pursuant to Army

regulations, Aguayo was evaluated by a psychologist and

interviewed by a chaplain. The chaplain reported that “PFC

[Private First Class] Aguayo seems to be sincere in his beliefs

although the timing of his request makes it questionable. It is

difficult to assess the depths of his beliefs because they rest

solely with in his own thinking and personal values with out the

support of background, family or faith group.”

Captain Sean Foster was assigned to investigate the

application, and in March 2004 he held a hearing in Tikrit, Iraq.

Aguayo and four witnesses testified. Captain Foster wrote that

after reviewing the evidence and hearing testimony, “it seemed

clear to me that PFC Aguayo is absolutely sincere in his stated

1

In this opinion we cite to the May 15, 1998 version of AR

600–43 in effect at the time of Aguayo’s application. Some provisions

were renumbered in the August 21, 2006 revision but the regulation

is substantively unchanged.

4

beliefs that he is opposed to ‘war in any form,’” and that

Aguayo’s opposition to war grew during basic training and

solidified during live fire exercises. Captain Foster concluded

that “PFC Aguayo’s stated beliefs that he is internally incapable

of participating in any form of war without being in a constant

state of personal moral dilemma is absolutely sincere,” and

recommended that the application be granted.

The application was then forwarded through Aguayo’s

chain of command. Aguayo’s Company Commander

recommended approval, and noted that “Soldier appears to have

a legitimate concern with being a soldier and this conflicts

negatively with his ability to perform his duties.” The next four

officers to review the application, however, recommended

disapproval. Aguayo’s Battalion Commander interviewed

Aguayo and wrote that Aguayo’s “pursuit of conscientious

objector status is an attempt to remedy his anxiety all soldiers

face during an extended deployment in a combat theater of

operations.” Aguayo’s Brigade Commander concurred in the

Battalion Commander’s assessment and wrote that he “d[id] not

believe that soldier’s belief is consistent w/ conscientious

objection.” The Staff Judge Advocate responsible for reviewing

Aguayo’s application also recommended disapproval. He wrote:

PFC Aguayo’s convictions do not appear to be sincerely

held. . . . 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. . . . 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

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in a kind and respectful family. . . . As stated by his

battalion commander, . . . 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.

Finally, Aguayo’s Division Commander recommended

disapproval. Aguayo’s application then went to the Department

of the Army Conscientious Objector Review Board

(“DACORB” or “Board”) at the Department of the Army

headquarters (“HQDA”); the DACORB makes the final decision

on all CO applications requesting discharge. The Board denied

Aguayo’s application in July 2004.

In August 2005 Aguayo petitioned the United States

District Court for the District of Columbia, pursuant to 28

U.S.C. § 2241, for a writ of habeas corpus ordering the Army to

discharge him as a conscientious objector. The parties agreed to

stay the proceedings in light of Aguayo’s assertion that the

Army had violated its own regulations by failing to provide him

with the opportunity to rebut the negative recommendations

from the officers in his chain of command. Aguayo then

submitted an amended application, and the Army agreed to have

the DACORB review the entire application de novo.

The amended application included a rebuttal to the

officers’ recommendations and more detailed responses to

several questions from Aguayo’s initial application. For

example, Aguayo explained that his beliefs had changed during

his Army training:

As the trainings progressed I knew I could not stab

anyone with a bayonet for instance. And when I felt the

earth tremble beneath me after firing an M-16 I felt and

I now know there’s no way I could point it at someone

and shoot. . . . My convictions are strong and are deeply

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rooted based on my upbringing, morals, and the

experiences I have had in the army.

As to the nature of his beliefs, Aguayo explained that he was

agnostic and that he had “a deep admiration for people such as

Jesus Christ, Gandhi, and Martin Luther King. I treasure their

values and desire to follow their lead. . . . I believe that if there

is a creator he would not want his creations to hurt or damage

each other.” To the question of what aspects of his life “most

conspicuously demonstrate[] the consistency and depth” of his

beliefs, Aguayo wrote that “I avoid violent movies and violent

entertainment. I try to avoid the more warlike aspects of

training. I will always try to act in accordance with my beliefs.”

In January 2006 the DACORB again denied Aguayo’s

application. The denial stated that “[a]fter thorough

examination of the Case Record, the DACORB determined that

the applicant did not present clear and convincing evidence,

IAW [in accordance with] AR 600–43, that the applicant’s

stated beliefs warrant award of 1-O status.”

On March 14, 2006, Aguayo filed an amended habeas

corpus petition in the district court. In April, the Army opposed

the amended petition and filed the administrative record as well

as a memorandum from the DACORB dated March 24, 2006

(the “supplemental memorandum”). This memorandum lists

several reasons why the DACORB denied Aguayo’s application:

• Applicant lacks the religious foundation; the

underpinning that supports Conscientious Objector

beliefs.

• Applicant has not provided any significant source of

his beliefs; conscience or moral views that would

warrant Conscientious Objector status.

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• Appears that applicant held beliefs prior to entry to the

Army. Although these could have crystallized after

entry, it still appears that these beliefs were considerable

prior to entry with no significant identification of these

beliefs at entry to the Army.

• Questionable timing of the application just prior to

unit deployment.

The supplemental memorandum also states that “[t]his is not an

exhaustive or all-inclusive list of reasons for the denial of this

application.”

In August 2006 Aguayo sought an injunction to prevent

his deployment to a war zone pending the resolution of his

habeas claim. By order and opinion of August 24, 2006, the

district court denied Aguayo’s habeas petition and denied the

injunction as moot. Aguayo v. Harvey, 445 F. Supp. 2d 29

(D.D.C. 2006). Aguayo immediately appealed and sought an

injunction from this court. We denied the injunction pending

the appeal but agreed to expedite the case. Aguayo argues that

we should reverse because the district court should not have

considered the DACORB’s supplemental memorandum and

because there is no basis in fact for the denial of his CO

application. We disagree with these arguments and affirm.2

2

We have been advised that, after this court denied the

injunction, Aguayo failed to report for his unit’s movement to Iraq and

departed without the authority of his unit. At the time of oral

argument, Aguayo was in Army custody and faced court-martial

charges. As discussed below, we base our decision on the record

before the district court. Because we affirm the judgment of the

district court, Aguayo’s current status does not affect our disposition

of this case. See Parisi v. Davidson, 405 U.S. 34, 46 n.15 (1972).

8

II

For purposes of the federal habeas corpus statutes,

members of the Armed Forces are in the custody of the United

States government. Parisi, 405 U.S. at 39. After exhausting all

procedures for administrative relief, service members may

challenge their custody by petitioning for a writ of habeas

corpus in federal court under 28 U.S.C. § 2241. Parisi, 405 U.S.

at 39; Alhassan v. Hagee, 424 F.3d 518, 521-22 (7th Cir. 2005).

A

Aguayo’s first argument concerns the DACORB’s

March 2006 supplemental memorandum, which lists several

reasons for the Board’s denial of Aguayo’s application. Aguayo

contends that the district court should not have consulted this

memorandum – and accordingly that the memorandum should

be disregarded on appellate review – because it was created after

Aguayo filed his amended habeas petition and because the

memorandum does not comply with military regulations. We

hold that the supplemental memorandum may properly be

reviewed in assessing the merits of Aguayo’s habeas petition.

Aguayo is correct that judicial review of an

administrative decision is generally limited to the existing

administrative record. “[T]he focal point for judicial review

should be the administrative record already in existence, not

some new record made initially in the reviewing court.” Florida

Power & Light Co. v. Lorion, 470 U.S. 729, 743 (1985) (quoting

Camp v. Pitts, 411 U.S. 138, 142 (1973)). But this principle of

administrative law does not preclude consideration of the

supplemental memorandum in this habeas corpus proceeding.

Under the Administrative Procedure Act (“APA”), agencies

generally must state the grounds for their decision to deny a

written application. See 5 U.S.C. § 555(e); Tourus Records, Inc.

9

v. Drug Enforcement Admin., 259 F.3d 731, 737 (D.C. Cir.

2001); Roelofs v. Sec’y of the Air Force, 628 F.2d 594, 599

(D.C. Cir. 1980). This requirement facilitates judicial review,

because one of the tasks of the reviewing court is to determine

whether an agency decision finds adequate support in the

administrative record. Accordingly, when the statement of

reasons is inadequate, in an APA case “the usual remedy is a

‘remand to the agency for additional investigation or

explanation.’” Tourus Records, 259 F.3d at 737 (quoting

Florida Power & Light, 470 U.S. at 744). In this case, the

supplemental memorandum provides additional explanation, and

we are not inclined to disregard it simply because it was not

produced in response to a remand.

Moreover, in refusing to ignore the supplemental

memorandum we note that we are not reviewing a claim brought

under the APA but rather a petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2241. Habeas proceedings are governed

by their own rules, and Habeas Corpus Rule 7 expressly

provides that “the judge may direct the parties to expand the

record by submitting additional materials relating to the

petition.” Rules Governing § 2254 Proceedings, Rule 7(a), 28

U.S.C. foll. § 2254. See also id. Rule 7(b) (“The materials that

may be required include letters predating the filing of the

petition, documents, exhibits, and answers under oath to written

interrogatories propounded by the judge. Affidavits may also be

submitted and considered as part of the record.”); id. Rule 1(b)

(“district court may apply any or all of these rules to a habeas

corpus petition not covered” by scope of Rules Governing

§ 2254 Proceedings). In this case, the judge did not direct the

Army to expand the record but instead accepted the

memorandum as an attachment to the Army’s opposition papers;

this is a distinction without a difference and we will not exclude

the memorandum on this basis. Aguayo also argues that,

Habeas Rule 7 notwithstanding, courts may not consider new

10

evidence in reviewing a conscientious objector habeas petition.

See, e.g., Armstrong v. Laird, 456 F.2d 521, 522 (1st Cir. 1972).

But this argument has no bearing on this case. We agree that the

Army’s decision to reject Aguayo’s CO application must be

supported by evidence in the administrative record as that record

existed when it was reviewed by the DACORB, but the

supplemental memorandum does not purport to contain such

evidence. Rather, it lists reasons for the Board’s decision, and

under the standard of review we apply to a denial of a service

member’s CO application, it is the Board’s decision that must

have a factual basis. (The standard of review we apply to the

Army’s denial of Aguayo’s CO application is discussed below

in section II.B.) The supplemental memorandum might tell us

where to look for evidence that Aguayo is or is not entitled to be

classified as a conscientious objector, but we emphasize that in

reviewing the Board’s decision we look to the same evidence

reviewed by the Board.

Aguayo also contends that the supplemental

memorandum cannot be considered because it did not comply

with the military’s conscientious objector regulations. “The

reasons for an adverse decision will be made a part of the record

and will be provided to the individual.” 32 C.F.R. § 75.6(f).

The corresponding Army regulation provides that “[i]f a

determination by HQDA that the person’s request is disapproved

[sic], the reasons for this decision will be made a part of the

record. It will be provided to the person through command

channels.” AR 600–43 ¶ 2-8.d.(3). Aguayo argues that the

supplemental memorandum was not “made a part of the record,”

because it was created after Aguayo filed his amended petition;

Aguayo also states that he did not receive the memorandum

“through command channels.” The Army responds that the

memorandum was indeed provided to Aguayo’s commanding

officer, and in any event Aguayo learned about the supplemental

memorandum when the Army filed it with the district court. We

11

agree with the Army that any errors in the Army’s handling of

the memorandum do not merit excluding it from consideration.

Because we will not exclude the supplemental

memorandum from consideration, we do not reach Aguayo’s

argument that the remainder of the record does not present a

valid reason for denying his application. As Aguayo rightly

points out, the DACORB’s January 2006 decision does not give

us much to work with. It states simply that “[a]fter thorough

examination of the Case Record, the DACORB determined that

the applicant did not present clear and convincing evidence,

IAW [in accordance with] AR 600–43, that the applicant’s

stated beliefs warrant award of 1-O status.” But because we

hold that the supplemental memorandum is properly before this

court, we need not decide whether this boilerplate denial would

be sufficient to guide judicial review of the DACORB’s decision

in light of the regulations’ clear requirement that the Board

provide its reasons for denying an application. Cf. Gruca v.

Sec’y of the Army, 436 F.2d 239, 245 (D.C. Cir. 1970) (holding,

in a case involving a challenge to a Selective Service

classification, “[i]t is enough if there is evidence in the record

from which we can garner the basis of the Board’s action”). Nor

do we decide what the appropriate remedy would be if it were

not sufficient. See, e.g., United States ex rel. Coates v. Laird,

494 F.2d 709, 712 (4th Cir. 1974) (holding that, where the

Marine Corps failed to give a reason for its denial of a CO

application, the proper procedure “is to remand the proceedings

to the service for reprocessing and for compliance with the

requirement of a statement of reasons”).

B

The Army’s decision to deny an application for

conscientious objector status will not be disturbed unless there

is no factual basis for the decision. United States v. Seeger, 380

12

U.S. 163, 185 (1965); United States ex rel. Barr v. Resor, 443

F.2d 707, 708 n.2 (D.C. Cir. 1971). The scope of our review

under the “basis in fact” standard is extremely narrow. We

neither substitute our judgment for that of the military nor look

for substantial evidence to support its decision. Witmer v.

United States, 348 U.S. 375, 380-81 (1955). Under this standard

the Army’s decision “can be overturned only if it has ‘no basis

in fact.’” Id. at 381; see also Dickinson v. United States, 346

U.S. 389, 396 (1953).

“Basis in fact” review in conscientious objector cases

traces to the Supreme Court’s 1946 decision in Estep v. United

States, 327 U.S. 114. Under the conscription laws then in effect,

decisions of civilian draft boards regarding the classification of

selective service registrants were “final” and the law did not

provide for judicial review. Estep was prosecuted for failing to

submit to induction, and the Court held that he could challenge

his military service classification in that prosecution.

The provision making the decisions of the local boards

‘final’ means to us that Congress chose not to give

administrative action under this Act the customary scope

of judicial review which obtains under other statutes. It

means that the courts are not to weigh the evidence to

determine whether the classification made by the local

boards was justified. The decisions of the local boards

made in conformity with the regulations are final even

though they may be erroneous. The question of

jurisdiction of the local board is reached only if there is

no basis in fact for the classification which it gave the

registrant.

Estep, 327 U.S. at 122-23; see also Dickinson, 346 U.S. at 394;

Witmer, 348 U.S. at 380-81. In 1967 Congress amended the

draft laws to reflect the limited judicial review recognized in

13

Estep, and the Selective Service Act now authorizes review of

draft classifications in certain criminal prosecutions “only when

there is no basis in fact for the classification assigned to such

registrant.” 50 U.S.C. App. § 460(b)(3); see United States ex

rel. Sheldon v. O’Malley, 420 F.2d 1344, 1348 (D.C. Cir. 1969).

This same standard governs judicial review of a petition

for a writ of habeas corpus following the military’s denial of a

service member’s application for discharge as a conscientious

objector. In contrast to selective service registrants who request

CO classification under the draft laws, however, those who have

volunteered to serve in the military do not have a statutory right

to apply for CO status. Rather, the Department of Defense has,

by regulation, authorized members of the Armed Forces to apply

for such status. Dep’t of Defense Directive 1300.6 (Aug. 20,

1971 rev.), as codified in 32 C.F.R. pt. 75 (2004 ed.); see Parisi,

405 U.S. at 45. This regulation “reflects a policy determination

to extend to persons already within the armed services the rights

of conscientious objection conferred by Congress upon those

subject to the Selective Service Act.” Sheldon, 420 F.2d at

1348. Accordingly, “judicial precedents involving claims to

exemption from entry into military service because of

conscientious objection are applicable to requests for discharge

on the same ground by those who voluntarily entered the

service.” Id. Although the standard of review we apply in this

case is dictated by precedent, we note that the limited scope of

review in military habeas cases is consistent with the general

principle that courts will afford military personnel decisions

considerable deference. See Piersall v. Winter, 435 F.3d 319,

321-22 (D.C. Cir. 2006).

C

On review of the administrative record, we agree with

the Army that there is a factual basis for the decision to deny

14

Aguayo’s CO application. Our review is guided by the Army’s

CO regulations and by the explanation for the Army’s decision

in the supplemental memorandum. By regulation, it is the

applicant’s burden to establish, by clear and convincing

evidence, that he or she meets the requirements for

conscientious objector status. AR 600–43 ¶ 1-7.c. The Army

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.” Id. Glossary.

“Religious training and belief” is broadly defined to include

“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.” Id.

The Supreme Court has stated that “the ultimate question in

conscientious objector cases is the sincerity of the registrant.”

Witmer, 348 U.S. at 381. This concern for the applicant’s

sincerity is reflected in the Army’s regulations:

Sincerity is determined by an impartial evaluation of

each person’s thinking and living in totality, past and

present. The conduct of persons, in particular their

outward manifestation of the beliefs asserted, will be

carefully examined and given substantial weight in

evaluating their application.

AR 600–43 ¶ 1-7.a.(5)(a).3 The regulations further provide a list

3

The Department of Defense regulation includes a similar

instruction:

A primary factor to be considered is the sincerity with which the

belief is held. Great care must be exercised in seeking to

determine whether asserted beliefs are honestly and genuinely

held. Sincerity is determined by an impartial evaluation of the

applicant’s thinking and living in its totality, past and present.

15

of factors to be considered in such an “impartial evaluation.”

These factors

include training in the home and church; general

demeanor and pattern of conduct; participation in

religious activities; whether ethical or moral convictions

were gained through training, study, contemplation, or

other activity comparable in rigor and dedication to the

processes by which traditional religious convictions are

formulated; credibility of persons supporting the claim.

Id. ¶ 1-7.a.(5)(b). In addition to the applicant’s own testimony

and written application, the regulations call for a number of

assessments and recommendations by Army personnel. A

military chaplain interviews each applicant and provides

comments on the applicant’s demeanor, depth of conviction, and

source of beliefs. Id. ¶ 2-3.a. An investigating officer, chosen

from outside the applicant’s chain of command, conducts a

hearing and submits a report. Id. ¶¶ 2-4, 2-5. Officers in the

applicant’s chain of command and a Staff Judge Advocate

review the record and offer their recommendations. Id. ¶ 2-6.

The review process thus relies heavily on the considered

opinions of a number of officers in addition to those who serve

on the DACORB.

Care must be exercised in determining the integrity of belief and

the consistency of application. Information presented by the

claimant should be sufficient to convince that the claimant’s

personal history reveals views and actions strong enough to

demonstrate that expediency or avoidance of military service is

not the basis of his claim.

32 C.F.R. § 75.5(c)(2).

16

In this case, the DACORB ruled that Aguayo “did not

present clear and convincing evidence . . . that the applicant’s

stated beliefs warrant award of 1-O status.” The March 2006

supplemental memorandum explained the Board’s view that

Aguayo lacked the “religious foundation” or “underpinning”

required of conscientious objectors and had not adequately

explained the source of his claimed beliefs; that Aguayo

appeared to hold his beliefs prior to enlistment; and that the

timing of Aguayo’s application was suspect.

In short, the DACORB questioned the nature and source

of Aguayo’s beliefs. Accordingly, we review the record for

evidence that would support the Board’s misgivings, and we

conclude that the Board’s decision has factual support in the

record. To be sure, Aguayo explained that “[m]y moral view

does not allow me to take the life of another human being” as

well as his belief that “higher forces will be in charge of any

retribution against any evils.” But the Army is entitled to

require more than mere assertions of belief, and its regulations

accordingly emphasize the applicant’s “outward manifestation

of the beliefs asserted” as well as the judgments of those who

review each application. AR 600–43 ¶ 1-7.a.(5)(a). The nature

of the applicant’s case determines the type of evidence needed

to rebut the claim. Witmer, 348 U.S. at 382. For example,

Dickinson involved a Selective Service registrant who produced

“uncontroverted evidence” that he met the objective statutory

criteria for a ministerial exemption from military service. 346

U.S. at 396-97. The Supreme Court held that the local draft

board’s denial of the exemption must be supported by “some

proof that is incompatible with the registrant’s proof of

exemption.” Id. at 396. In Witmer, a conscientious objector

case, the Supreme Court distinguished Dickinson and stated that

“[i]f . . . the issue is the registrant’s sincerity and good faith

belief, then there must be some inference of insincerity or bad

faith.” 348 U.S. at 382. In the instant case, the issue is

17

Aguayo’s demonstration of his beliefs as required by the Army’s

regulations and as assessed by the officers who reviewed his

application. “Aside from an outright admission of deception –

to expect which is pure naivety – there could be no more

competent evidence against [a registrant’s] claimed

classification than the inference drawn from his own testimony

and conduct.” Gruca, 436 F.2d at 246 (quoting Witmer, 348

U.S. at 383). Here, the record supports the inference that

Aguayo’s convictions do not require his classification as a

conscientious objector.

The Battalion Commander, Brigade Commander,

Division Commander, and Staff Judge Advocate each

recommended that Aguayo’s application be denied. The

Battalion Commander, who interviewed Aguayo, concluded that

“[i]n [Aguayo’s] mind, the psychological impact of being

deployed in a combat theater and separated from his family,

outweigh the benefits associated with military service.” The

Staff Judge Advocate concluded that “Aguayo did not identify

any specific ways he has altered his behavior to accommodate

his beliefs.” The chaplain – whose duty is to offer comments

but not a formal recommendation, see AR 600–43 ¶ 2-3.a.(2) –

expressed doubts as to the depth and source of Aguayo’s

convictions. To find for Aguayo in this case would be to

disregard this evidence. We would be reluctant to do so under

all but the most extraordinary circumstances, and the record in

this case provides no ground to second guess the opinions and

conclusions of the Army officers who opposed Aguayo’s

application.

We review the entire record to determine whether there

is a basis in fact for the Army’s decision. No single fact or

statement is dispositive. Our conclusion is based on the entire

record and in particular Aguayo’s own application and rebuttal

statements. For example, Aguayo’s own application materials

18

provide reason to doubt whether his beliefs developed through

“activity comparable in rigor and dedication to the processes by

which traditional religious convictions are formulated” or “are

the product of a conscious thought process resulting in such a

conviction as to allow the person no choice but to act in

accordance with them.” AR 600–43 ¶ 1-7.a.(5)(b); id. Glossary.

Aguayo explained that he was raised by religious parents and

that his father is a pacifist. Certainly this upbringing may be a

source of his beliefs, but Aguayo also maintains that he was not

a conscientious objector when he volunteered for the Army.

The Army will consider claims “growing out of” pre-enlistment

experiences, so long as the applicant’s beliefs become fixed after

entering the service. Id. ¶ 1-7.a.(1). Though Aguayo stated that

his Army training caused him anguish and guilt, we find little

indication that his beliefs were accompanied by study or

contemplation, whether before or after he joined the Army.

More to the point, we certainly cannot say that the reviewing

officers’ doubts as to Aguayo’s convictions are so inconsistent

with the record that their recommendations must be disregarded.

In this appeal, Aguayo insists that the “crystallization” of

conscientious objector beliefs, like the process of religious

conversion, is not always the result of prolonged study and can

instead be dramatic and quick, as when it is precipitated by a life

crisis – in Aguayo’s case, his experience in weapons training.

Clearly, this was not an open-and-shut case: both Aguayo’s

Company Commander and the investigating officer

recommended the application be approved. But the decision in

close cases rests with the DACORB, not the courts, and the

officers’ recommendations are consistent with both the Army’s

regulations and the record.

In addition, Aguayo applied for discharge as a

conscientious objector shortly after arriving at his unit and just

days before his deployment to Iraq, a fact noted by the chaplain

and which “raise[d] doubts” in the mind of the Staff Judge

19

Advocate. This court has held that the suspect timing of a CO

application is not, in itself, sufficient grounds for its denial.

Bortree v. Resor, 445 F.2d 776, 784 (D.C. Cir. 1971). The

current regulations list timing as a factor that may be considered

but expressly provide that timing alone “is never enough to

furnish a basis in fact to support a disapproval.” AR 600–43

¶ 1-7.a.(5)(c). The DACORB in this case could properly find

that the circumstances surrounding Aguayo’s application

constituted a factor that weighed against its approval.

III

For the foregoing reasons, the order of the district court

denying Agustín Aguayo’s petition for a writ of habeas corpus

is affirmed.

So ordered.