Kanai v. McHugh

Filed: March 11, 2011

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-6086

(8:09-cv-01597-PJM)

STEVEN LANG KANAI,

Petitioner - Appellee,

v.

JOHN M. MCHUGH, Secretary of the Army,

Respondent – Appellant.

-------------------------------------

AMERICAN CIVIL LIBERTIES UNION FOUNDATION; AMERICAN FRIENDS

SERVICE COMMITTEE; CENTER ON CONSCIENCE AND WAR; AMERICAN

CIVIL LIBERTIES UNION OF MARYLAND, INCORPORATED,

Amici Supporting Petitioner.

O R D E R

The Court amends its opinion filed March 4, 2011, as

follows:

On page 27, first full paragraph, line 10 -- the

spelling of the name “Kanai’s” is corrected.

On page 28, first paragraph, line 11 -- the word “not”

is deleted.

For the Court – By Direction

/s/ Patricia S. Connor

Clerk

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

STEVEN LANG KANAI, 

Petitioner-Appellee,

v.

JOHN M. MCHUGH, Secretary of

the Army,

Respondent-Appellant.

 No. 10-6086

AMERICAN CIVIL LIBERTIES UNION

FOUNDATION; AMERICAN FRIENDS

SERVICE COMMITTEE; CENTER ON

CONSCIENCE AND WAR; AMERICAN

CIVIL LIBERTIES UNION OF

MARYLAND, INCORPORATED,

Amici Supporting Petitioner.



Appeal from the United States District Court

for the District of Maryland, at Greenbelt.

Peter J. Messitte, Senior District Judge.

(8:09-cv-01597-PJM)

Argued: December 9, 2010

Decided: March 4, 2011

Before NIEMEYER, DUNCAN, and KEENAN,

Circuit Judges.

2 KANAI v. MCHUGH

Reversed and remanded by published opinion. Judge Keenan

wrote the opinion, in which Judge Niemeyer and Judge Dun-

can joined.

COUNSEL

ARGUED: Joshua Paul Waldman, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for Appel-

lant. Daniel Bernard Abrahams, BROWN RUDNICK, LLP,

Washington, D.C., for Appellee. ON BRIEF: Tony West,

Assistant Attorney General, Anthony J. Steinmeyer, UNITED

STATES DEPARTMENT OF JUSTICE, Washington, D.C.;

Rod J. Rosenstein, United States Attorney, Baltimore, Mary-

land, for Appellant. Howard A. Wolf-Rodda, BROWN RUD-

NICK, LLP, Washington, D.C., for Appellee. Ward B. Coe

III, GALLAGHER EVELIUS & JONES LLP, Baltimore,

Maryland; Deborah A. Jeon, AMERICAN CIVIL LIBER-

TIES UNION OF MARYLAND, Baltimore, Maryland; Vera

M. Scanlon, BELDOCK LEVINE & HOFFMAN LLP, New

York, New York; Deborah H. Karpatkin, New York, New

York; Daniel Mach, AMERICAN CIVIL LIBERTIES

UNION FOUNDATION, Washington, D.C., for Amici

Curiae American Civil Liberties Union Foundation and

American Civil Liberties Union of Maryland. J. E. McNeil,

Daniel O’Connor, CENTER ON CONSCIENCE & WAR,

Washington, D.C., for Amici Curiae American Friends Ser-

vice Committee and Center on Conscience and War.

OPINION

KEENAN, Circuit Judge:

Steven L. Kanai, a cadet in his final year at the United

States Military Academy at West Point, New York (West

Point), sought discharge from the United States Army (the

KANAI v. MCHUGH 3

Army) as a conscientious objector.1 The Department of the

Army Conscientious Objector Board (the Army Board)

denied Kanai’s application for discharge, finding that Kanai

had not demonstrated sincerely-held views entitling him to be

classified as a conscientious objector.

After the Army Board’s decision, the Army relieved Kanai

from active duty as a West Point Cadet.2 Kanai returned to his

home in Maryland, where he filed a petition for a writ of

habeas corpus in the United States District Court for the Dis-

trict of Maryland pursuant to 28 U.S.C. § 2241. The district

court granted the writ, and the Army appeals.

The Army raises two arguments on appeal. The Army first

contends that the district court lacked subject-matter jurisdic-

tion to consider Kanai’s habeas corpus petition under 28

U.S.C. § 2241(a), which authorizes certain federal courts,

including district courts, to issue the writ "within their respec-

tive jurisdictions." The Army alternatively argues that even if

the district court had subject-matter jurisdiction to consider

Kanai’s petition, the district court erred in granting the writ

because the record demonstrates that there was a "basis in

fact" supporting the Army Board’s decision. For the reasons

that follow, we hold that the district court had subject-matter

jurisdiction to decide the merits of Kanai’s petition, but we

reverse the district court’s award of habeas corpus relief and

remand the case to the district court for entry of an order rein-

stating the Army Board’s decision.

1

The Department of Defense, by regulation, has authorized volunteer

members of the Armed Forces to apply for conscientious objector status.

See Dep’t Def. Directive 1300.06 (Aug. 20, 1971 rev.), codified at 32

C.F.R. pt. 75 (2004).

2

The Army also granted Kanai’s separate request to resign from the

Army and ordered Kanai to report for active duty, enlisted status, for a

period of three years. The district court enjoined the Army from enforcing

this order during the pendency of Kanai’s challenge to the Army Board’s

decision.

4 KANAI v. MCHUGH

I.

In our jurisdictional inquiry, we first consider the phrase

"within their respective jurisdictions," as employed in

§ 2241(a). The complete sentence containing this phrase

states, "Writs of habeas corpus may be granted by the

Supreme Court, any justice thereof, the district courts and any

circuit judge within their respective jurisdictions." Id.

Kanai contends that the phrase "within their respective

jurisdictions" in § 2241(a) refers to the geographic boundaries

of the particular judicial district in which a district judge sits.

Kanai asserts that, therefore, the phrase directs the proper

location for the filing of a habeas corpus petition, functioning

as a venue provision that does not affect the district courts’

subject-matter jurisdiction. In the alternative, Kanai contends

that the phrase "within their respective jurisdictions" refers to

the personal jurisdiction of the district courts over the custo-

dian of a habeas petitioner and, thus, to the district courts’

authority to order a custodian to produce a habeas petitioner

before the court. Kanai argues that regardless which of these

two interpretations of § 2241(a) is correct, the Army waived

any challenge to venue or to the personal jurisdiction of the

district court because the Army failed to raise such objections

in the district court.

The Army responds to Kanai’s waiver argument by assert-

ing that the phrase "within their respective jurisdictions"

refers to the district courts’ subject-matter jurisdiction to

decide the merits of habeas corpus petitions. Citing a number

of cases decided before the Supreme Court’s decision in

Rumsfeld v. Padilla, 542 U.S. 426 (2004), the Army argues

that this phrase in § 2241(a) limited the subject-matter juris-

diction of the Maryland district court, because Kanai did not

have a commanding officer physically present in Maryland,

and because there were no "meaningful contacts" between the

Army and Kanai in Maryland. Because questions of subject-

matter jurisdiction are not subject to waiver and may be

KANAI v. MCHUGH 5

asserted at any time, Arbaugh v. Y & H Corp., 546 U.S. 500,

514 (2006), the Army contends that its failure to object to the

district court’s exercise of jurisdiction is immaterial to our

consideration of this issue on appeal.

The parties’ arguments, therefore, present a distinct choice.

If the phrase "within their respective jurisdictions" in

§ 2241(a) restricts the district courts’ power to decide the

merits of habeas corpus petitions, as the Army contends, then

the Army’s jurisdictional challenge may be noticed on appeal.

Arbaugh, 546 U.S. at 514; Brickwood Contrs., Inc. v. Datanet

Eng’g, Inc., 369 F.3d 385, 390 (4th Cir. 2004) (en banc). If,

instead, the phrase imposes a venue or personal jurisdiction

requirement specifying where a habeas corpus petition should

be filed, then the Army’s failure to raise this matter in the dis-

trict court has resulted in a waiver of that issue. See Ruhrgas

AG v. Marathon Oil Co., 526 U.S. 574, 584 (1999); Constan-

tine v. Rectors & Visitors of George Mason Univ., 411 F.3d

474, 480 (4th Cir. 2005); Robert E. Lee & Co. v. Veatch, 301

F.2d 434, 436 (4th Cir. 1961).

The purpose of the writ of habeas corpus is to free individ-

uals from custody who are unlawfully detained. The proper

respondent to a habeas corpus petition is the person who has

custody over the petitioner, namely, the person with the abil-

ity to produce the petitioner before the habeas court. See 28

U.S.C. §§ 2242, 2243; Padilla, 542 U.S. at 434-35.

When a petitioner is physically detained, the custodian gen-

erally is the warden of the facility where the petitioner is con-

fined. Padilla, 542 U.S. at 435. A habeas petitioner who is

physically confined must name this "immediate custodian" as

the habeas respondent, and must file the habeas petition in the

"district of confinement." Id. at 446-47. In that circumstance,

the "district of confinement" necessarily is the location of

both the habeas petitioner and the immediate custodian.

Habeas corpus relief, however, is not limited to petitioners

who are physically confined. See Strait v. Laird, 406 U.S. 341

6 KANAI v. MCHUGH

(1972); Schlanger v. Seamans, 401 U.S. 487 (1971); Jones v.

Cunningham, 371 U.S. 236, 243 (1963). Although the habeas

statute speaks of "a prisoner" in "custody," these terms and,

thus, the reach of the writ, have been construed liberally to

include the situation presented here, in which a conscientious

objector seeks discharge from military service. See 28 U.S.C.

§ 2241(c)(1) (habeas statute extends to individuals "in cus-

tody under or by color of the authority of the United States");

Schlanger, 401 U.S. at 489. Such a petitioner is considered by

the law as being "in custody" because of the restraints placed

on his or her liberty by the United States military. Schlanger,

401 U.S. at 491 n.5. The proper respondent to a service mem-

ber’s petition is his or her commanding officer, and the writ

acts to secure the petitioner’s release from military service

rather than from physical detention. See id. at 489-91.

To date, the federal courts have not resolved precisely the

question where habeas suits should be filed by petitioners

who are not physically detained and, consequently, have no

obvious "district of confinement." In a number of Vietnam-

era cases, the Supreme Court held that the respondent com-

manding officer, but not necessarily the habeas petitioner,

must either be physically present within the territorial juris-

diction of the district court in which the petition is filed, or be

constructively "present" in the district by operation of long-

arm principles. See Strait, 406 U.S. at 345; Schlanger, 401

U.S. at 491; Braden v. 30th Judicial Circuit Court of Ken-

tucky, 410 U.S. 484, 500 (1973) (overruling Ahrens v. Clark,

335 U.S. 188 (1948)). In these cases, however, the Supreme

Court did not explicitly state whether the required presence of

the custodian implicated the subject-matter jurisdiction of the

district courts, or whether the presence requirement was sub-

ject to waiver by a respondent’s failure to challenge the dis-

trict court’s jurisdiction over the custodian. Rather, the

Supreme Court left unanswered the precise meaning of the

phrase "within their respective jurisdictions," as set forth in

§ 2241(a). See Moore v. Olson, 368 F.3d 757, 758 (7th Cir.

2004) (discussing Supreme Court cases cited above).

KANAI v. MCHUGH 7

Immediately before the Supreme Court’s decision in

Padilla, the Court of Appeals for the Seventh Circuit

expressly answered the question whether a habeas respon-

dent’s challenge to a district court’s jurisdiction is subject to

waiver based on the respondent’s failure to raise the issue in

the district court. In its decision in Moore v. Olson, that court

held that the phrase "within their respective jurisdictions," as

set forth in § 2241(a), does not address the subject-matter

jurisdiction of the courts but is a venue provision subject to

waiver by a habeas respondent. Id. at 758.

Soon after the decision in Moore, the Supreme Court ren-

dered its judgment in Padilla. There, the Supreme Court

ordered the dismissal of a habeas petition filed in the district

court for the Southern District of New York by a petitioner

who was confined aboard a United States Navy brig located

off the coast of South Carolina. 542 U.S. at 432, 451.

The petitioner had named as respondents President George

W. Bush, Secretary of Defense Donald Rumsfeld, and the

commanding officer of the Navy brig. Id. at 432. The govern-

ment moved to dismiss the habeas petition in the district

court, arguing that the commanding officer of the Navy brig

was the only proper respondent, and that the district court

lacked jurisdiction over this commanding officer because she

was located outside the Southern District of New York. Id.

In a 5-4 decision, the Supreme Court reaffirmed the "imme-

diate custodian rule" discussed above, holding that when a

habeas petitioner such as Padilla is physically detained, he or

she must file any habeas petition against the warden of the

detention facility in the "district of confinement." Id. at 447.

Thus, the Court agreed with the government that Padilla

should have filed his habeas petition against the commanding

officer of the Navy brig in the District of South Carolina, the

location of the vessel on which Padilla was confined. Id. at

442, 451.

8 KANAI v. MCHUGH

The Court disagreed, however, with the government’s argu-

ment that the phrase "within their respective jurisdictions"

addressed the authority of the district court to decide the mer-

its of Padilla’s habeas petition. See Oral Arg. Tr. at 7, Padilla

v. Rumsfeld, 542 U.S. 426 (April 28, 2004). In addressing this

"jurisdictional" challenge, the Court expressly stated that it

was applying the term "jurisdiction" as it "is used in the

habeas statute, 28 U.S.C. § 2241(a), and not in the sense of

subject-matter jurisdiction of the District Court." Padilla, 542

U.S. at 434 n.7. (emphasis added.)

The Court explained that the phrase "within their respective

jurisdictions" in § 2241 addresses a federal court’s "jurisdic-

tion" over the custodian of a habeas petitioner. Id. at 442 (cit-

ing Braden, 410 U.S. at 495). This statement suggests that the

majority opinion was construing the phrase "within their

respective jurisdictions" in § 2241 to encompass personal

jurisdiction concepts. However, in a separate concurring opin-

ion filed by Justice Kennedy and joined by Justice O’Connor,

who both were members of the five-justice majority, Justice

Kennedy stated that "the question of the proper location for

a habeas petition is best understood as a question of person-

al[ ]jurisdiction or venue." Id. at 453 (Kennedy, J., concur-

ring). Justice Kennedy declined to choose between these

forum-based concepts, explaining that "[t]he precise question

of how best to characterize the statutory direction respecting

where the action must be filed need not be resolved with

finality in this case." Id.

It is apparent, therefore, that the Supreme Court in Padilla

directly addressed the language of § 2241(a), and rejected the

government’s argument that this language restricted the dis-

trict courts’ subject-matter jurisdiction. Moreover, this rejec-

tion of a subject-matter jurisdiction analysis and its discussion

of the language of § 2241(a) explained the Court’s core hold-

ing in the case, that the district court for the Southern District

of New York lacked jurisdiction over Padilla’s petition

because the petition was not filed in a federal district that had

KANAI v. MCHUGH 9

jurisdiction over his commanding officer. Id. at 442-443.

Thus, although the decision in Padilla did not resolve the pre-

cise nature of the restriction that the language of § 2241(a)

places on the filing of habeas petitions, a majority of the

Supreme Court plainly rejected a subject-matter jurisdiction

analysis in that case.

After the Supreme Court’s decision in Padilla, the Court of

Appeals for the Eighth Circuit was presented with the same

issue regarding the jurisdictional import of the disputed lan-

guage in § 2241(a). In Mathena v. United States, that court

considered a prisoner’s habeas petition that was not filed in

the district where the prisoner was confined or in a district

where the Bureau of Prisons had a central or regional office.

577 F.3d 943, 946 n.3 (8th Cir. 2009). Relying on the

Supreme Court’s decision in Padilla, the court concluded that

the petitioner’s failure to file in the district of his confinement

or in a district in which the Bureau of Prisons had an adminis-

trative office did not deprive the district court of subject-

matter jurisdiction. Id. (citing Padilla, 542 U.S. at 434 n.7).

The court indicated that the disputed language in § 2241(a)

imposes a requirement of in personam jurisdiction, rather than

of subject-matter jurisdiction, and held that the government

waived any objection to that requirement by its failure to raise

the issue in the district court. Id.

This circuit has not yet been required to decide the exact

meaning of the phrase "within their respective jurisdictions"

or the waiver issue presented in this case. In United States v.

Poole, we observed that the Supreme Court in Padilla had

stated that the term "jurisdiction," as used in § 2241(a), "is

distinct from ‘the sense of subject-matter jurisdiction of the

[d]istrict [c]ourt.’" 531 F.3d 263, 270 n.12 (4th Cir. 2008)

(quoting Padilla, 542 U.S. at 434 n.7). Nevertheless, we

stated that we had "no occasion . . . to delve further into the

precise meaning of the term," because the question presented

in Poole was whether the petitioner was in "custody" under

the particular facts of the case. Id. at 271.

10 KANAI v. MCHUGH

In this case, we also do not need to resolve the precise

nature of the phrase "within their respective jurisdictions" set

forth in § 2241(a), because the Supreme Court’s clear rejec-

tion of a subject-matter jurisdiction analysis in Padilla is dis-

positive of the question before us. In accordance with Padilla,

we conclude that the phrase "within their respective jurisdic-

tions" in § 2241(a) identifies the proper location of the federal

district in which a habeas petition should be filed. We need

not go any further because, regardless whether the phrase at

issue is better understood as a requirement of personal juris-

diction over a habeas respondent, as held in Mathena, or as

a venue provision prescribing the particular location for the

filing of a habeas petition, as determined in Moore, neither of

these types of requirements addresses the subject-matter juris-

diction of the district courts. Thus, any challenge to habeas

proceedings based on this language in § 2241(a) is waived if

not timely asserted. See Ruhrgas, 526 U.S. at 584; Constan-

tine, 411 F.3d at 480; Robert E. Lee & Co., 301 F.2d at 436;

Mathena, 577 F.3d at 946 n.3. Accordingly, we hold that in

the present case, the Army waived any objection to Kanai’s

petition being considered by the district court for the District

of Maryland based on the Army’s failure to raise the issue

before the district court.

II.

Because the Army waived its challenge under § 2241(a) to

the district court’s consideration of Kanai’s petition, we turn

to consider the merits of the Army’s appeal, namely, whether

the Army Board had a basis in fact to deny Kanai’s applica-

tion for discharge from the Army based on conscientious

objector status. We consider this issue in the context of the

established procedures and standards for proving conscien-

tious objector status that are set forth in Army regulations.

A.

Members of the Armed Services who can demonstrate a

sincerely-held opposition to all wars, known as conscientious

KANAI v. MCHUGH 11

objection, may refuse to perform military service on that

ground. See Parisi v. Davidson, 405 U.S. 34, 38 n.2 (1972);

Dep’t Def. Directive 1300.06 ¶ 3.1 (May 31, 2007 rev.) The

burden to establish conscientious objector status rests with the

applicant, who must show by clear and convincing evidence

that he or she is conscientiously opposed to participation in all

wars, that the opposition is based on religious training or

belief, and that these views are firm, fixed, and sincerely and

deeply held. Dep’t Def. Directive 1300.06 ¶¶ 3.1, 5.3; Army

Reg. 600-43 ¶ 1-5.c. Applications based solely on policy,

pragmatism, or expediency do not meet this standard and will

be denied. Army Reg. 600-43 ¶ 1-5.a(3).

The most important of these considerations is the sincerity

of the applicant’s opposition to war, which is determined by

an "impartial evaluation of each [applicant’s] thinking and

living in totality, past and present." Army Reg. 600-43 ¶ 1-

5.a(5)(a). An applicant’s sincere desire to separate from the

military is not conscientious objection, and neither is an appli-

cant’s call to another profession, even a religious one. Army

Reg. 600-43, App’x D-4(b). Factors relevant to assessing sin-

cerity 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 process by which traditional religious convic-

tions are formulated, and the credibility of the per-

sons supporting the claim.

Army Reg. 600-43 ¶ 1-5.a(5)(b). The conduct of the appli-

cant, in particular his or her "outward manifestation of the

beliefs asserted," is given substantial weight. Army Reg. 600-

43 ¶ 1-5.a(5)(a).

The Army regulations expressly recognize that in some

cases, applicants for conscientious objector status may have

12 KANAI v. MCHUGH

sought release from the Army through several means in rapid

succession, or may have applied for conscientious objector

status shortly after becoming aware of the prospect of an

undesirable duty assignment. Army Reg. 600-43 ¶ 1-5.a(5)(c).

However, the timing of an application, standing alone, does

not furnish a basis in fact to support the disapproval of an

application. Id. The regulation provides that these circum-

stances merely should prompt additional inquiry into an appli-

cant’s motives. Id.

When a member of the military submits an application for

conscientious objector status, the filing triggers a mandatory

review process. The applicant is interviewed by a military

chaplain and generally undergoes a mental status evaluation.

Army Reg. 600-43 ¶ 2-3.

In addition, a military officer outside the applicant’s chain

of command is appointed to oversee the review procedures.

Army Reg. 600-43 ¶¶ 2-4, 2-5. This investigating officer pre-

sides over a hearing, at which the applicant is permitted to

present evidence, and issues a report of the hearing and a writ-

ten recommendation on the application. Army Reg. 600-43 ¶

2-5. The investigating officer then forwards the entire record

to officers in the applicant’s immediate chain of command.

Army Reg. 600-43 ¶ 2-6.c. Each of these officers evaluates

the application and issues a recommendation whether consci-

entious objector status is established. Army Reg. 600-43 ¶¶ 2-

6.a(1)(a), 2-6.c. The applicant later is permitted to submit a

written rebuttal statement for the record. Army Reg. 600-43

¶ 2-5.m.

Finally, a five-member panel, the Army Board, reviews the

record and makes a final decision on the application.3 Army

3

The Army Board historically was composed of three members. In July

2008, however, the Board was increased to five members. In the habeas

proceeding below, the district court expressly rejected Kanai’s allegation

that the size of the Army Board was changed to affect the outcome of

KANAI v. MCHUGH 13

Reg. 600-43 ¶ 2-8.a. The Army Board must articulate on the

record its reasons for denying an applicant conscientious

objector status. Army Reg. 600-43 ¶ 2-8.d(1),(3).

An applicant for discharge based on conscientious objector

status may seek review of an adverse decision of the Army

Board by filing a petition for a writ of habeas corpus. See

Strait, 406 U.S. at 341; United States v. Clifford, 409 F.2d

700, 705-06 (4th Cir. 1969). In its review, the district court

must ascertain whether there was a "basis in fact" for the

Army Board’s decision. See Estep v. United States, 327 U.S.

114, 122 (1946). This standard of review is extremely defer-

ential, even more so than a substantial evidence review or a

clear error review. In fact, this Court has characterized "basis

in fact" review as the "narrowest known to the law." See

Blalock v. United States, 247 F.2d 615, 619 (4th Cir. 1957).

Under "basis in fact" review, if "conflicting inferences can

be drawn from the same evidence, there is a basis in fact," and

the Army Board’s decision is final. United States v. Pritchard,

413 F.2d 663, 666 (4th Cir. 1969). The Army Board’s deci-

sion must be grounded in logic, and mere suspicion of an

applicant’s insincerity does not constitute a basis in fact for

the denial of an application. See Hanna v. Sec’y of the Army,

513 F.3d 4, 12 (1st Cir. 2008). However, unless the Army

Board acted so contrary to its own regulations that it exceeded

its jurisdiction, the Army Board’s decision must be upheld. Id.

A reviewing court may not weigh the evidence or substitute

its judgment for that of the military. See Estep, 327 U.S. at

122.

Kanai’s particular petition. Kanai filed a cross-appeal of this ruling, and

of a ruling by a magistrate judge denying in part his motion to compel the

production of certain documents by the Army. On May 10, 2010, we

granted Kanai’s motion to voluntarily dismiss these claims pursuant to

Federal Rule of Appellate Procedure 42(b).

14 KANAI v. MCHUGH

Our review of the district court’s grant of habeas corpus

relief is de novo. See Frazer v. South Carolina, 430 F.3d 696,

703 (4th Cir. 2005). Thus, like the district court, we determine

only whether there is a basis in fact supporting the denial of

Kanai’s application for discharge under conscientious objec-

tor status. Estep, 327 U.S. at 122.

B.

The following facts relevant to our review are drawn from

the administrative record. In June 2004, Kanai enrolled at

West Point. In exchange for receiving a tuition-free education,

Kanai agreed to serve at least five years of active duty in the

Army after graduating from West Point. See 10 U.S.C.

§ 4348.

In his application for admission to West Point, Kanai

described his long-standing desire to serve in the Armed Ser-

vices. This commitment to military service, however, began

to wane during Kanai’s first years at West Point. After his

first year, Kanai attended a Buddhist retreat and began medi-

tating and practicing vegetarianism. He abandoned his vege-

tarian practices about two years later, because the limited

dietary options available to him at West Point made it difficult

for him to meet the rigorous demands of cadet training.

At the beginning of his final year, Kanai began to voice

opposition to the wars in Iraq and Afghanistan, and to express

general doubts about his ability to serve in the military. Kanai

approached his Tactical Officer, Major Jeffrey Van Antwerp,

to discuss resigning from the Army. Shortly thereafter, how-

ever, Kanai told Major Van Antwerp that he had changed his

mind and would remain at West Point.

A few months later, in November 2007, the Army assigned

cadets in their final year at West Point to a specialty branch

of the Army. Kanai was ordered to join the armor division.

When he received this commission, Kanai decided that he

KANAI v. MCHUGH 15

would prefer to serve in the infantry division. Major Van Ant-

werp accommodated Kanai’s wishes by arranging for an addi-

tional infantry slot for Kanai. In return, Kanai agreed to serve

an additional three years of active duty, for a total of eight

years, upon his graduation from West Point.

Just one month later, in December 2007, Kanai sought to

avoid this additional obligation. Kanai approached Major Van

Antwerp to discuss Kanai’s concerns that his girlfriend did

not want him to serve the additional three years of active duty.

At this time, Major Van Antwerp informed Kanai that the ser-

vice contract could not be revoked.

About four months later, Kanai again told Major Van Ant-

werp that he wanted to resign. Major Van Antwerp and Kanai

have conflicting recollections of this encounter. In a rebuttal

memorandum in the record, Kanai stated that he did not dis-

cuss his conscientious objector views with Major Van Ant-

werp during this meeting because Kanai believed that Major

Van Antwerp would find them offensive. According to

Kanai’s statement, when he told Major Van Antwerp that he

wanted to resign, Major Van Antwerp asked what Kanai

would do after resigning. Kanai recounted that he told Major

Van Antwerp that he would pursue his interests in journalism

and photography or, perhaps, would join the Peace Corps.

Major Van Antwerp also submitted a memorandum as part

of the review proceedings.4 Major Van Antwerp recalled that

when he asked Kanai why he wanted to resign from the

Army, Kanai responded that he wanted to resign in order to

pursue his interests in journalism and photography, and

4

Kanai alleges that certain procedural irregularities compromised the

integrity of his conscientious objector proceedings. Among them, Kanai

asserts that Major Van Antwerp improperly supplemented the record with

this memorandum after the investigating officer had completed his report.

Notably, however, Kanai was able to include in his rebuttal for the record

a response to Major Van Antwerp’s statements. Therefore, we find no

merit in this allegation.

16 KANAI v. MCHUGH

because the Army would not allow him to use this "creative

side." In Major Van Antwerp’s view, Kanai was attempting to

leave the military because of these outside interests.

On May 12, 2008, Kanai submitted to the Army an unquali-

fied memorandum of resignation. Kanai explained in his

statement of resignation that his personal values had evolved

since his entry into West Point and had become "incompatible

with the lifestyle and culture of the military." In describing his

values, Kanai stated, "[C]onflicts between the peoples of the

world should be resolved without resorting to war." Kanai

acknowledged that his resignation would trigger the reim-

bursement provision of his service contract, meaning that he

would be responsible to repay to the Army the cost of his edu-

cation. He nonetheless concluded, "I cannot accept a commis-

sion and become a leader in the Army either in a combat o[r]

non-combat role." Kanai did not label himself as a conscien-

tious objector in this document.

One week later, Kanai submitted an application for consci-

entious objector status.5 In his supporting documents, Kanai

elaborated on the views that he first had expressed in the res-

ignation memorandum. Kanai explained that since arriving at

West Point, he had practiced Buddhism and had studied the

works of writer-philosophers including Emerson, Thoreau,

and Hesse. Kanai thought that all these men "cherish[ed] the

gift of life." Kanai wrote that his Christian and Buddhist

beliefs, together with these studies, led him to conclude in his

5

The Staff Judge Advocate recommended to the Superintendent of West

Point, Lieutenant General Hagenbeck, that Kanai’s resignation request be

held in abeyance pending the outcome of his application for discharge.

Nonetheless, on May 23, 2008, before Kanai’s conscientious objector pro-

ceeding was completed, Hagenbeck recommended that Kanai’s resigna-

tion be approved and that Kanai be ordered to serve three years of active

duty in the Army Reserve, enlisted grade. The Superintendent holds a

superior rank to the officers in Kanai’s chain of command who reviewed

his application for discharge but does not have authority over the members

of the Army Board.

KANAI v. MCHUGH 17

last two semesters at West Point that all conflicts must be

resolved without violence. He stated that violence is justified

only if his own life or the lives of his family members are

threatened.

Kanai also described certain lifestyle changes that he

believed outwardly manifested his conscientious objector

views. He stated that he attended church several times each

week, and that he routinely shared his opinions on conflict

resolution with his classmates. Kanai believed that his

thoughtfulness and compassion, evidenced by his daily inter-

actions with others, best demonstrated the sincerity of his pac-

ifist beliefs. Finally, Kanai wrote that he wanted to join the

Peace Corps to effect "positive change," by documenting

humanitarian crises through writing and photography.

Along with his personal statement, Kanai submitted charac-

ter references from certain professors, classmates, and friends.

These individuals uniformly described Kanai as honest, genu-

ine, and forthright. One cadet stated that Kanai held beliefs

that do not "mesh very well with the current political and tac-

tical situation in Iraq or Afghanistan." This friend also wrote

that, for Kanai, it was "a constant battle . . . to shape his belief

system and ideals into what service in the Army would

entail." An assistant professor writing on Kanai’s behalf

stated that, on several occasions, Kanai expressed reservations

about "the current military situation in Iraq," and about his

future ability to serve as an Army officer. With respect to

Kanai’s character, the assistant professor stated that Kanai is

trustworthy and sincere, and not "given to rash decisions."

When Kanai filed his application for conscientious objector

status, that filing initiated the review proceedings described

above.6 As part of this process, an Army chaplain interviewed

6

The Army emphasizes the fact that civilian counsel assisted Kanai dur-

ing the review process. The Army suggests that Kanai’s conscientious

objector views developed only after Kanai met with counsel and learned

18 KANAI v. MCHUGH

Kanai about his professed conscientious objector views.

Kanai explained to the Army chaplain Kanai’s view that war

is never an acceptable way to resolve problems among

nations. Kanai suggested that even donning an Army uniform

is an unacceptable demonstration of support for war. When

pressed by the Army chaplain, Kanai could not explain why

he had asked to join the infantry division, stating only that the

infantry was his third "branching" preference.7 Kanai did

remember, however, that his conscientious objector beliefs

crystallized after he made this branching decision and, more

specifically, after he returned from spring break during his

final semester at West Point.

Based on this interview, the Army chaplain concluded that

the only concrete indication that Kanai held conscientious

objector beliefs was the "fact that [Kanai] is a gentle person."

In a memorandum for the record, the Army chaplain noted

that Kanai’s purported conscientious objector views were

inconsistent with his request to join the infantry division. The

Army chaplain also commented that conscientious objector

beliefs had never prevented Kanai from participating in com-

bat or firearms training which, according to the Army chap-

lain, Kanai regarded as "games" designed to impart leadership

lessons to the cadets. Ultimately, the Army chaplain con-

cluded that Kanai’s views were incoherent and naive.

Dale L. Henderson, a member of the West Point faculty,

was assigned to Kanai’s case as the investigating officer. Hen-

about the requirements for discharge based on conscientious objection.

However, Kanai was entitled to the assistance of counsel, and we decline

to attribute to Kanai’s decision to hire counsel any insincere motive with

respect to his application for discharge. Army Reg. 600-43 ¶ 2-5.i; see

United States v. Resor, 439 F.2d 1249, 1252 (4th Cir. 1971); Goldstein v.

Middendorf, 535 F.2d 1339, 1344 (1st Cir. 1976).

7

In his written rebuttal statement, Kanai stated that his first and second

choices were the intelligence division and the transportation division, non-

combat branches that reflected his evolving moral beliefs.

KANAI v. MCHUGH 19

derson conducted a hearing, considered the administrative

record, and determined that Kanai’s professed beliefs consti-

tuted conscientious objection.8 Henderson thereafter con-

cluded that Kanai’s willingness to leave West Point at

considerable cost to himself was compelling evidence of his

sincerity.

Henderson later sent the administrative records to officers

in Kanai’s chain of command. All those officers recom-

mended that Kanai’s application for discharge be denied. One

officer in Kanai’s chain of command concluded that Kanai’s

application for discharge was motivated by his desire to pur-

sue other interests, not by pacifist views. A second officer in

Kanai’s chain of command noted that when Kanai approached

him in May 2008 to discuss resigning from the Army, Kanai

did not mention any conscientious objector views. This offi-

cer concluded that, for Kanai, the application for discharge

was merely an alternative to a resignation.

A third officer in Kanai’s chain of command determined

that Kanai’s professed conscientious objector views mani-

fested themselves only after Kanai learned that he would be

assigned to serve as an enlisted soldier if he resigned. This

officer acknowledged that Kanai had some misgivings about

the wars in Iraq and Afghanistan, but concluded that Kanai’s

conduct did not evince a moral or ethical opposition to the

pursuit of those conflicts.

Finally, in the memorandum discussed above, Major Van

Antwerp wrote that Kanai initially thought that he could sim-

ply resign from West Point and repay the cost of his educa-

tion. Major Van Antwerp concluded that when Kanai realized

8

Henderson acknowledged in his report that Major Van Antwerp

doubted the sincerity of Kanai’s views, but noted that Major Van Ant-

werp’s opinions were based on one interview, while other evidence of

Kanai’s sincerity came from individuals who had interacted with Kanai

over a longer period of time.

20 KANAI v. MCHUGH

that he would have to serve in the Army as an enlisted solider

if he resigned, Kanai educated himself about conscientious

objector values and applied for discharge from the Army on

that ground. Despite criticizing Kanai’s motives, Major Van

Antwerp stated that he liked Kanai personally and was disap-

pointed by Kanai’s "misguided" decision. All these officers’

statements were provided to Kanai, and he was permitted to

file a response memorandum.

After these reviews and recommendations were concluded,

the Army Board considered Kanai’s application, including his

rebuttal statement and the full record. Each member of the

Army Board issued a written recommendation on Kanai’s

application for discharge as a conscientious objector. Two

Army Board members, a Chaplain member and a "Legal Rep-

resentative" member, voted to approve Kanai’s application for

conscientious objector status. The three remaining members,

two "Line Officers" and the Army Board’s President, voted to

deny the application.9

The first Line Officer concluded that Kanai "in no way

[met] even the basic qualification for [conscientious objector]

status." This Line Officer acknowledged that, for some time,

Kanai had been evaluating his core values and plans for the

future, but the Officer concluded that "dabbl[ing]" with other

religious beliefs outside the norm did not demonstrate paci-

fism, or a religious conversion or religious conviction. The

first Line Officer thought that Kanai presented his conscien-

tious objector application as an "eleventh hour" attempt to

9

Kanai suggests that the Army Board constructively granted his applica-

tion for discharge. He explains that one Army Board member recom-

mended that Kanai "be assigned to a non-combat [military occupation

specialty]," an assignment that Kanai argues violates Army Regulation

600-43 ¶ 1-5.d. That regulation provides that an applicant denied consci-

entious objector "(1-0) status’ may not be granted "(1-A-0) status" as a

"compromise." The fact that an Army Board member may have suggested

an impermissible alternative, however, does not transform a denial vote

into a "constructive" vote to grant Kanai conscientious objector status.

KANAI v. MCHUGH 21

separate from the Army. This Line Officer also stated that he

agreed with the Academy Superintendent’s recommendation

that Kanai’s resignation request be approved.

Similarly, the second Line Officer determined that Kanai

had not outwardly manifested conscientious objector beliefs.

This Line Officer stated that attending a Buddhist retreat and

"turning vegetarian" constituted insufficient evidence to sup-

port a military discharge as a conscientious objector. The sec-

ond Line Officer also identified "subtle inconsistencies" in

Kanai’s evidence, noting that although Kanai had proffered

that his classmates would describe him as peaceful and under-

standing, the classmates actually had indicated that Kanai was

"outspoken and perhaps confrontational" about the Iraq and

Afghanistan wars. The second Line Officer also commented

that Kanai participated in "aggressive" sports like boxing,

rugby, and football, sports that the second Line Officer

viewed as being inconsistent with an opposition to war in all

forms. Like the first Line Officer, the second Line Officer

concluded that Kanai merely wanted to avoid his service obli-

gation, and did not sincerely oppose war in all forms.

Finally, the Army Board President concluded that Kanai’s

only outward display of his conscientious objector beliefs was

an alleged increase in chapel attendance, evidence that the

President characterized as uncorroborated. The President

compared Kanai’s application to a philosophical treatise and

stated that Kanai’s philosophical arguments did not demon-

strate sincerity or conviction. The President concluded that

Kanai’s views were fickle and insincere, and that Kanai’s

guiding principle was his desire to leave West Point, rather

than to oppose all wars.

Based on this record, the district court held that Kanai had

established a prima facie case of conscientious objection, and

that the Army Board members had not articulated a basis in

fact supporting the denial of Kanai’s application. Kanai v.

Geren, 671 F. Supp. 2d 713, 729 (D. Md. 2009). Citing

22 KANAI v. MCHUGH

Peckat v. Lutz, 451 F.2d 366, 369-70 (4th Cir. 1971), the dis-

trict court opined that it was inappropriate to comb the record

for a basis in fact not articulated by the Army Board members

but concluded that, even if such an approach were permissi-

ble, that approach would not benefit the Army’s position in

this case. Kanai, 671 F. Supp. 2d at 720, 726-27.

The district court also denied the Army’s request to remand

the case to the Army Board for further consideration. Id. at

728-29. The district court stated that the three Army Board

members who voted to deny Kanai’s application for discharge

were biased against Kanai, and that any remand would be

futile because there was no basis in fact in the record to sup-

port the denial of his application for discharge. Id. at 728-29,

729 n.10.

The district court stated that the Army Board members’

bias was evident in their written votes. Id. at 724. The district

court found that the members relied on impermissible bases

for their recommendations, including the timing of Kanai’s

application for discharge, his participation in contact sports,

and the absence of any evidence of "religious conversion" by

Kanai. Id. at 722-23, 728.

The district court also found that the Superintendent unduly

influenced Kanai’s commanding officers by making a recom-

mendation on Kanai’s resignation request before the officers

had considered Kanai’s separate application for discharge as

a conscientious objector. Id. at 725. By doing so, the district

court concluded, the Superintendent effectively ordered the

officers to recommend that Kanai be denied conscientious

objector status. Id. The district court determined that this and

certain other "procedural missteps," described below, demon-

strated a disregard for Kanai’s constitutional right of due pro-

cess. Id. at 718 n.3. For all these reasons, the district court

held that a remand to the Army Board would be "futile," and

the court granted Kanai’s petition for a writ of habeas corpus.

Id. at 728-29.

KANAI v. MCHUGH 23

C.

The Army argues that the Army Board had several bases in

fact supporting the denial of Kanai’s application for dis-

charge, and that any one of these bases is sufficient to uphold

the Army Board’s decision. According to the Army, the Army

Board reasonably concluded that Kanai was motivated by a

pragmatic desire to separate from the Army and not by a sin-

cere opposition to war in all forms. The Army notes that

Kanai talked to his superiors about everything but conscien-

tious objection, such as his goal to pursue interests outside the

military, and his girlfriend’s opposition to the additional ser-

vice obligation that Kanai accepted in December 2007. The

Army explains that Kanai failed to articulate what changed in

his thinking between December 2007, when he requested to

join the infantry division, and May 2008, when Kanai filed his

application for discharge based on conscientious objection.

The Army asserts that this silence about his conscientious

objector views, and the absence of any outward display of

those professed beliefs, belies Kanai’s sincerity and is fatal to

his discharge application.

The Army further contends that the supporting references

submitted by Kanai speak to his character generally as peace-

ful, quiet, thoughtful, and honest, but have little relevance to

the determination whether Kanai outwardly manifested a

moral or ethical opposition to all wars. The Army asserts that

Kanai’s conduct demonstrated that he frequently changed his

mind and, thus, calls into question whether his professed con-

scientious objector views were gained through training, study,

and contemplation, as required by Army regulations. With

respect to basis in fact review, the Army contends that even

if the Army Board members relied on impermissible grounds

to deny Kanai’s application for discharge, this Court must

uphold the Army Board’s decision based on the legitimate

grounds factually supported by the record.

In response to the Army’s assertions, Kanai argues that

there is no factual basis in the record to sustain the Army

24 KANAI v. MCHUGH

Board’s decision. Like the district court, Kanai lists the "im-

permissible" reasons articulated by the Army Board members

who voted to deny his application, including the timing of his

application, his reliance on civilian counsel, his participation

in "aggressive" sports, and the "confrontational" way in which

Kanai voiced opposition to the wars in Iraq and Afghanistan.

Kanai contends that to the extent that the denial votes articu-

late other "permissible" grounds to deny him conscientious

objector status, such as a lack of sincerely-held views, those

grounds are stated as conclusions and do not satisfy the basis-

in-fact standard. Kanai further argues that this Court may not

examine the record in search of bases in fact that were not

articulated by the Army Board members in their votes.

Additionally, Kanai raises various arguments challenging

certain procedures employed by the Army in handling his

case. He argues that the Superintendent, by releasing his rec-

ommendation on Kanai’s resignation request before the con-

clusion of the proceedings on Kanai’s discharge request,

effectively "signaled" to the members of Kanai’s chain of

command that Kanai should be denied discharge on conscien-

tious objector grounds.

Kanai also asserts that the Army failed to comply with its

own regulations with respect to the handling of certain docu-

ments. Kanai maintains that he did not receive the denial deci-

sion in a timely manner, that his application was not

processed and forwarded to the Army Board within the ninety

days required by the Army Regulations, and that the statement

of explanation for this delay was not added to the record for

more than four months. Kanai further contends that certain

documents were withheld from him, including three docu-

ments authored by the Staff Judge Advocate. These docu-

ments included an "advice" memo to the Superintendent to

withhold action on Kanai’s resignation request until the dis-

charge application had been decided, a review of the legal

adequacy of the conscientious objector proceedings, and an

KANAI v. MCHUGH 25

explanation for the delay beyond ninety days in submitting

the completed record to the Army Board for decision.

Finally, Kanai contends that the Army Board engaged in ex

parte communications by seeking clarification from the Army

regarding a particular document, which erroneously indicated

that Kanai had taken the oath of office administered to West

Point graduates during the pendency of his conscientious

objector proceeding. Although the Army informed the Army

Board of the error, the Army did not also notify Kanai of this

fact.

III.

A.

At the outset, we observe that the evidence supports an

inference that Kanai is a contemplative, self-reflective, and

honest person. In considering the merits of Kanai’s appeal,

however, we are required to uphold the Army Board’s deci-

sion if it is supported by a basis in fact. Pritchard, 413 F.2d

at 666; see also Bohnert v. Faulkner, 438 F.2d 747, 751 (6th

Cir. 1971); Aguayo v. Harvey, 476 F.3d 971, 980-81 (D.C.

Cir. 2007) (conducting independent review of the administra-

tive record to determine whether a basis in fact existed for

Army Board decision). Under this very narrow standard of

review, a "basis in fact" exists when conflicting inferences

can be drawn from the same evidence. Pritchard, 413 F.2d at

666. Thus, if any inferences can be drawn from the evidence

that conflict with the perspective provided by the conscien-

tious objector applicant, there is a basis in fact to deny the

application, and the Army Board’s decision must be upheld.

See id.

Here, in essence, the three Army Board members indicated

that they were voting to deny Kanai’s application because

they thought that he merely wanted to avoid his service obli-

gation, and that he had not presented sufficient evidence to

26 KANAI v. MCHUGH

demonstrate a moral opposition to all wars. Although the

three members’ statements present conclusions, their state-

ments also reflect the rationale underlying their votes, namely,

the insufficiency of Kanai’s evidence. We conclude that the

evidentiary insufficiency of Kanai’s application is amply sup-

ported by facts in the record.

In December 2007, just five months before Kanai sought

discharge from the Army, he made an additional three-year

service commitment in order to join the infantry division,

rather than the armor division. Seeking out this obligation is

inconsistent with any claim that Kanai held conscientious

objector beliefs at that time. Moreover, when Kanai sought to

avoid this additional service obligation one month later, he

said nothing about holding conscientious objector views, but

stated only that his girlfriend opposed the "branching" deci-

sion.

Although Kanai argues that his decision to seek an infantry

assignment, with its additional three-year service commit-

ment, occurred before his conscientious objector views "crys-

tallized," Kanai’s evidence fails to set forth how or why his

views changed between December 2007 and May 2008. Nor

does the record demonstrate an "outward manifestation" of

conscientious objector views that would support an inference

that Kanai’s professed conscientious objector views emerged

during this brief window of time.

Our present conclusion, that there is a basis in fact support-

ing the Army Board’s decision, is not altered by our decision

in Peckat. There, a service member sought discharge from the

Army as a conscientious objector. Peckat, 451 F.2d at 367.

We noted that the Army Board, in denying the application,

asserted its disbelief in the applicant’s sincerity but did not

explain how the Army Board reached its conclusion. Id. at

368. We observed that we were "offered nothing but a naked

conclusion of insincerity." Id. at 370. Rejecting this conclu-

sion, we emphasized that "[t]he rationality of the Army’s pro-

KANAI v. MCHUGH 27

cess in arriving at its conclusions must be made manifest in

the decision itself. It will not do to leave the point in a state

of ambiguity until some future day when government lawyers

may devise an explanatory dissertation for inclusion in a

defensive brief." Id.

Here, however, the decision of the Army Board is not "in a

state of ambiguity." The three written votes at issue made clear

that each of those members based his or her decision on the

conclusion that Kanai’s application was motivated by his desire

to separate from the Army. All three members essentially cited

their view that Kanai’s evidence was insufficient to establish that

he was opposed to all wars. The members were not required by

our decision in Peckat to support this reason by an analysis of the

evidence presented. Instead, because their stated reason for deny-

ing Kanai’s application is supported by the above-stated facts in

the record, we conclude that there was a "basis in fact" for the

Army Board’s decision. See Estep, 327 U.S. at 122; Pritchard,

413 F.2d at 666.

Our decision also is not affected by the fact that the three

Army Board members referenced various impermissible and

irrelevant factors in their written votes, including Kanai’s reli-

ance on civilian counsel and his participation in "aggressive"

sports. Those references are best characterized as inappropri-

ate surplusage. The references do not negate the expressed

reason for the members’ decision, that Kanai had not pre-

sented sufficient evidence in support of his application.

B.

We emphasize that by deciding the merits of the Army’s

appeal without remanding the case to the Army Board for

reprocessing, we do not adopt the district court’s findings that

bias and certain "procedural irregularities" in the conscien-

tious objector proceedings deprived Kanai of his due process

rights. We address each of the Army Board’s purported mis-

steps in turn.

28 KANAI v. MCHUGH

First, the Superintendent did not issue a recommendation on

Kanai’s application for discharge until after the investigating

officer and the commanding officers had made their own de-

cisions. Although the Superintendent disregarded the advice of

the Staff Judge Advocate to withhold action on Kanai’s resigna-

tion request until after the Army Board had reached its decision

on the discharge application, we disagree with the district court

that this conduct improperly influenced the decision of the Army

Board members, who were not subject to the Superintendent’s

command. In fact, the investigating officer, Henderson, who the

Army concedes was under the command of the Superintendent,

expressly stated that Kanai’s application for discharge should be

granted.

As noted earlier in our decision, Kanai’s conscientious

objector proceeding was not prejudiced by the late memoran-

dum submitted by Major Van Antwerp, because Kanai was

permitted to submit a written rebuttal that included a response

to Van Antwerp’s comments. We also conclude that the

alleged errors regarding the timelines of the proceedings sim-

ply had no impact on the decision-making process. With

regard to the documents purportedly withheld from Kanai, we

see no reason why the documents should not have been shared

with him. However, we also conclude that the documents

were not relevant to the decision whether Kanai was entitled

to conscientious objector status.

Additionally, we conclude that the "ex parte" communica-

tions at issue did not compromise the proceedings. If these

communications had any effect, they corrected a factual error

in the record that would have been harmful to Kanai’s posi-

tion before the Army Board. Therefore, we hold that Kanai

has failed to establish that he was denied due process in the

proceedings under review.

IV.

In conclusion, we hold that the district court had subject-

matter jurisdiction over Kanai’s habeas corpus petition, and

KANAI v. MCHUGH 29

that the Army waived any other challenge to the district

court’s authority to consider the petition based on the Army’s

failure to raise such a challenge in the district court. We

reverse the district court’s judgment granting the writ of

habeas corpus, and remand the case to the district court for

entry of an order reinstating the decision of the Army Board.

REVERSED AND REMANDED