limiting relief by directing that the military reconsider its decision in light of and in accordance with "recently adopted new regulations” that implemented procedures more favorable to CO applicants
How later courts described this case
- limiting relief by directing that the military reconsider its decision in light of and in accordance with "recently adopted new regulations” that implemented procedures more favorable to CO applicants
- initially directing district court to review Navy’s rejection of application but, upon rehearing, instead remanding for the Navy’s redetermination under new regulations
- permitting review of petition for writ of habeas corpus where naval reservist claimed he was denied discharge by Navy in violation of its own regulations
- “a validly promulgated regulation binds the government as much as the individuals subject to the regulation; and this is no less so because the governmental action is essentially discretionary in nature” (emphasis added)
Written by the judges who cited it.
The opinion
FRIENDLY, Circuit Judge
(dissenting):
When Charles A. Hammond enlisted in the Naval Reserve on September 30, 1963, and thereby became a member of the Armed Forces of the United States, 10 U.S.C. c. 11, he became entitled to certain privileges, notably exemption from the Selective Service Act, 50 U.S.C. App. § 456(a) (2), and assumed certain liabilities. Among the latter was subjection to military discpline, including the Uniform Code of Military Justice, 10 U.S.C. § 802 (3). I see no justification for ruling, after he has enjoyed.the privileges for four and a half years, that he is now to be relieved of the obligations. In doing so, my brothers appear to have disregarded the principle summarized by the Chief Justice not long ago. “So far as the relátionship of the military to its own personnel is concerned, the basic attitude of the Court has been that the latter’s jurisdiction is most limited.” Warren, The Bill of Rights and the Military, in The Great Rights 89, 95 (1963).
The reasons assigned for relieving Hammond of his obligation to stand trial before a court martial and then pursue his appellate remedies within the military are that he cannot convene a court martial and that, if one is convened, adverse decision is a certainty. As to the first, there is little doubt that the Navy is ready to set its disciplinary machinery in motion if Hammond persists in refusing to report for active duty, once the district court lifts its stay. In any event Hammond suffers no harm until it does; the threat of a court martial is not impairing his continued adherence to his conscientious objection. There is likewise no basis for assuming that proceedings under the Code of Military Justice will be an exercise in futility. The Navy’s Regulations, BUPERS 1616.6f, say only that “Individuals for whom neither 1-0 nor I-A-0 classification is recommended by Selective Service normally will be retained in the naval service, subject to normal duty requirements.” It would be well within the competence of a court martial to rule that, in the absence of evidence supporting General Hershey’s “advisory opinion,” it would follow the recommendation of Commanding Officer Lenfest, although, quite naturally, the Government cannot assure us what the decision will be. As the Chief Justice has also said, “our recent experience has shown * * * that the Court of Military Appeals can be an effective guarantee of our citizens’ right to due process when they are subjected to trial by court martial.” Supra at 98. It will be ample time for a civil court to act if the military tribunals fail to grant Hammond the relief he seeks.
My brothers seem to concede, as I think Supreme Court decisions compel, that if a court martial had been convened, habeas corpus would not lie until military remedies had been exhausted. See Gusik v. Schilder, 340 U.S. 128 , 71 S.Ct. 149 , 95 L.Ed. 146 (1950); Beard v. Stahr, 370 U.S. 41 , 82 S.Ct. 1105 , 8 L.Ed.2d 321 (1962). I fail to perceive why Hammond should stand better because he beat the Navy to the draw. As to this I would follow the reasoning of Judge Doyle, adopted by the Tenth Circuit, in Noyd v. McNamara, 267 F.Supp. 701 (D.Colo.), aff’d, 378 F.2d 538 , cert. denied, 389 U.S. 1022 , 88 S.Ct. 593 , 19 L.Ed.2d 667 (1967). The cases allowing draftees to challenge an allegedly wrongful induction by habeas corpus are so plainly inapposite, see 267 F.Supp. at *718 708 , as to render their discussion supererogatory.
The tension between “proper regard for habeas corpus, ‘the great writ of liberty’ ” and “the duty of civil courts to abstain from intervening in matters constitutionally committed to military justice” inevitably “raises questions of great delicacy and difficulty.” Burns v. Wilson, 346 U.S. 137, 148 , 73 S.Ct. 1045, 1052 , 97 L.Ed. 1508 (1953) (Mr. Justice Frankfurter). I regret that my brothers’ understandable resentment at what appears to be an arbitrary “advisory opinion” by the Director of Selective Service should lead to civil interference with the military, which may be needless and surely is premature in this case and will doubtless precipitate a flood of applications for similar relief.
I would affirm.