The opinion
LUMBARD, Circuit Judge
(dissenting) :
I dissent.
Despite reviewing this case five times, the conscientious objector review board never gave a satisfactory reason for denying petitioner’s application for discharge. On the other hand, the findings of sincerity by all four Army officials who interviewed petitioner are persuasive and conclusive on the record before us. I cannot agree with the majority that one supposed inconsistency between Rosengart’s hardship request and his petition for discharge casts doubt on his sincerity. Nor do I think that this alleged discrepancy, which at best is inconsequential, provides a basis in fact for the board’s action.
Oliver Rosengart’s parents, who are refugees from Nazi Germany, early inculcated their son with an abhorrence of the violence and killing of war. In the summer of 1963 and the two summers thereafter, Rosengart worked at a racially integrated, non-profit camp attended by underprivileged youngsters, which was devoted to peace and non-violence. In the summer of 1966, he went to Mississippi as part of the civil rights movement, and narrowly escaped death from an assassin’s bullet in Grenada, Mississippi. From October, 1966 until July, 1967, during his last year at New York University Law School, Rosengart was a student law clerk with Mobilization for Youth. On May 13, 1968, he returned to Mobilization for Youth as a staff attorney, and was assigned to the organization’s Criminal Law Division. In August, 1968, he submitted his application for discharge from the United States Army Reserve as. a conscientious objector.
In his application for discharge, Rosen-gart described his beliefs in the fundamental goodness of all men, the necessity of loving all men, and the moral imperative of non-violence. 1 In a supplementary statement, Rosengart added that the kindness and love he saw in every mhn was a manifestation of “God and Godliness.” Several letters were submitted in support of Rosengart’s application, and each confirmed the picture of a deeply idealistic young man whose pacifist views gradually evolved through participation in antipoverty and civil liberties activity.
In accordance with military regulations, Rosengart was interviewed by a major, a chaplain, and a psychiatrist— all Army personnel. All of these interviewers thought Rosengart was sincere. The Army review board at Fort Benjamin Harrison, Indiana, at first denied Rosengart’s application, but then agreed to reconsider. Accordingly, Rosengart *532 was reinterviewed by the same chaplain and psychiatrist, who adhered to their prior opinions. Rosengart also appeared before a different hearing officer, Captain Koch, who agreed with Major Mohr that the petitioner should be discharged as a bona fide conscientious objector. Despite the review board’s initial disapproval, then, all persons who interviewed Rosengart were convinced of his-sincerity.
Because I conclude that the military review board did not consider Lieutenant Rosengart’s discharge application fairly, that the district court should have granted the writ of habeas corpus over two years ago, and that there is no basis in the record to doubt petitioner’s sincerity, I dissent.
I.
The first time the conscientious objector review board at Fort Benjamin Harrison considered and denied Rosengart’s application, in January, 1969, after three interviewers had attested to his sincerity, it stated that the file “portrays an image of an intelligent individual with deep rooted philosophical and idealistic convictions.” However, it recommended disapproval because “Rosengart’s beliefs are not founded in religious training and belief acquired since becoming affiliated with the military service.” 2
Because this Board failed to comply with regulations, the Army agreed to a redetermination. Captain Koch, the hearing officer “knowledgeable in policies and procedures relating to conscientious objector matters,” DoD 1300.-6, § VI(B) (4), recommended that Rosen-gart be considered “a bona fide conscientious objector” who realized his objections to war during his attendance at the non-sectarian camp. 2
3 The Army psychiatrist stated that Rosengart “made a religion out of the importance of human life and felt that there was no justification to kill anyone and that for that reason all wars, as a matter of principle, were morally wrong (like capital punishment).” This psychiatrist also received the “impression that this man is honest.” The Army chaplain was of the “opinion that Mr. Rosengart is sincere in his belief objecting to combatant training and service. However, since he is of the Jewish faith and nonpracticing, his belief is based more on a humanitarian attitude than on a formal institutionalized religious belief. He does believe in a Supreme Being, and this likewise forms part of the basis for his objection.” 4
*533 On March 19, 1969, the conscientious objector review board again refused to grant Rosengart’s application for discharge. Its reasons for doing so are set forth in full in the margin. 5 The board nowhere questions the sincerity of Rosengart’s opposition to all wars. Rather, it is clear that they accepted this, as had the January 1969 review board, but believed that his case was “based on sociological experiences, a personal moral code, and philosophical beliefs.” The board did doubt the sincerity of Rosengart’s claim that his beliefs were religious in nature, because he had received no religious training since childhood or since joining ROTC, and his subsequent experiences were “simply sociological.” But the board agreed that Rosengart had a “strong personal moral code that was influenced by sociological experiences” (emphasis added).
The votes of the individual members of the review board buttress the conclusion that Rosengart’s sincere opposition to all war was believed. Two of the three board members answered “yes” to the only two questions relevant to the issue of sincerity: “Is the applicant’s statement regarding the use of force credible when compared to the rest of his application?”; and “Has the applicant made any sacrifices in support of his alleged beliefs ?” 6 On the other hand, the board members agreed that Rosengart’s convictions were not “well founded in religious training and belief,” and that his conscientious objection was based on sociological reasons (one member did not agree), philosophical views, and a personal moral code. As the government stated at the time in an affidavit dated April, 1969, the board found that Rosen-gart was not opposed to war “based on his religious beliefs.”
*534 At this point, Judge Pollack should have granted a writ of habeas corpus, for the reasons advanced by the board were erroneous as a matter of law and without a basis in fact. The board noted that Rosengart received no formal religious training subsequent to entering military service, but none is required. United States v. Seeger, 380 U.S. 163, 186 , 85 S.Ct. 850 , 13 L.Ed.2d 733 (1965); DoD 1300.6, § IV(B) (4) (“claims based on conscientious objection growing out of experiences prior to entering military service, but which did not become fixed until entry into the service, will be considered”).
The board also noted that Rosengart’s early religious training in Judaism did not prevent him from entering military status, but Rosengart joined ROTC in 1959, well before his pacifist views formed. Neither the fact that petitioner is “not a practising Jew” nor the “unspecified vague manner” in which he is associated with Quakers and Humanists casts doubt on his beliefs. United States v. Seeger, supra. The board then asserted that Rosengart’s experiences after joining ROTC were “simply sociological experiences that no doubt influenced his personal moral code.” Few indeed are the instances where “sociological experiences” do not go into the mixture which spawns a conscientious objector, and courts have recognized that as long as the end product is a deep-rooted conviction against war which occupies a central place in a person’s scheme of values, that individual’s claim of conscientious objection should be recognized. Welsh v. United States, 398 U.S. 333, 339-343 , 90 S.Ct. 1792 (1970); Fleming v. United States, 344 F.2d 912, 916 (10th Cir. 1965).
Next, the board viewed Rosengart’s application, quoted earlier, as a “crude attempt to align a weakness in his case with the regulatory requirements.” I see no' basis for this statement, nor can I find any basis in the record to support the board’s conclusion that Rosengart’s humanist beliefs in love, man’s basic goodness, and pacifism are non-religious as that term has been defined in United States v. Welsh, supra, and United States v. Seeger, supra. See United States ex rel. Conrad v. Hoffman, 435 F.2d 1273 (7th Cir. 1970).
Since there was no basis for the review board’s determination, Rosengart was entitled to the relief he requested. Instead, Judge Pollack, in an opinion dated April 24, 1969, after stating some facts which he believed cast doubt on petitioner’s sincerity, remanded to the review board to determine, inter alia, whether they “found that petitioner’s opposition to war is not genuine or sincere on the basis of affirmative evidence.” He thus failed to note that the board had not questioned the sincerity of Rosen-gart’s opposition to war, and erred in pointing to a reason for disqualification that the board had eschewed. Gresham v. Franklin, 315 F.Supp. 850, 853 (N.D. Cal.1970); Benway v. Barnhill, 300 F. Supp. 483, 486 (D.R.I.1969).
On remand, in July, 1969, a newly-constituted review board responded to Judge Pollack’s four questions, which are set forth at note 18 of the majority opinion. In response to the first question, the board pointed to the belatedness of Rosengart’s conscientious objection claim and his previous requests for deferment as evidence of his insincerity, a finding undoubtedly facilitated by Judge Pollack’s first opinion. The validity of these reasons will be discussed infra. However, the board also “determined that 1 LT Rosengart is opposed to war in all forms solely on non-religious grounds, i. e. sociological experiences, a personal moral code, and philosophical beliefs.”
Faced with this apparent inconsistency, the government explained:
“They [interviewers] found that he sincerely opposed war in all forms, and the Board accepted those findings. It rejected only the conclusion that such beliefs met the standard imposed by the Army, a question on which the interviewing officers’ opinions carry no special weight. * * * Since it is not petitioner’s opposition to war that was doubted, but the basis of that *535 opposition, any finding that he is sincerely opposed to war carries no weight on what the Board found to be the basis for the denial of petitioner’s application — that the source of his beliefs were nonreligious.”
Respondents’ Reply Memorandum of Law, September 2, 1969. The government’s contention at that time seems valid, as indicated by the board’s answer set forth in the margin, to the second of Judge Pollack’s questions, which was designed to find out whether the board thought that the interviewers had done their job. 7
Since there was no doubt as to Rosen-gart’s sincere opposition to all wars, and as stated earlier these beliefs are religious under Welsh and Seeger , petitioner should have been ordered released from the armed forces. In a supplementary opinion dated September 2, 1969, however, Judge Pollack overlooked this haystack and again remanded because of a needle: the board erred in its belief that religious training after enlistment must be shown.
On October 10, 1969, the board came up with new findings. First, it conveniently avoided the problem posed by Judge Pollack by concurring in its three previous findings “[w]ith the exception of any discussion of religious training and belief.” The board proceeded to state:
“1 LT Rosengart’s alleged conscientious objector beliefs are not truly held; that he is an opportunist simply endeavoring to avoid military service; and that any objections to war in any form he may truly hold are based solely on sociological reasons, philosophical views, and a personal moral code.”
To buttress this statement, the board again relied upon Rosengart’s late assertion of conscientious objection, his other requests to be relieved from active duty, and the fact that his experiences were “simply sociological and philosophical.” The board also was unable to believe that Rosengart’s ostensible conscientious beliefs were related to his belief in God, 8 and found some unspecified inconsistency in his application. 9
This time Judge Pollack reserved decision pending disposition of United States v. Sisson, 297 F.Supp. 902 (D. Msas.1969), appeal dismissed, 399 U.S. 267 , 90 S.Ct. 2117 , 26 L.Ed.2d 608 (1970). He later remanded to the board for reconsideration in light of Welsh v. United States, 398 U.S. 333 , 90 S.Ct. 1792 , 26 L.Ed.2d 308 (1970).
On its fifth and final try, dated September 10, 1970, the board followed its last precedent to avoid a thorny question. This time, it concurred in the findings of the October 10, 1969 board “[w]ith the exception of any discussion eoncem- *536 ing a personal moral code.” With Welsh so readily disposed of, the board added, like its predecessor, that “1 LT Rosen-gart’s purported conscientious objector beliefs are not truly held; and that any objection to war in any form he might sincerely hold is based solely on philosophical views and sociological experiences.” As Judge Moore notes, this is a curious statement indeed in light of Welsh . The board concluded that Rosengart:
“is a low-educated, intelligent individual who has used the U. S. Army to further his personal goals; and when asked to serve his military obligation, has employed lawful conscientious objection as a controversial, convenient haven in which he could hopefully find refuge from military service.”
Finally on November 23, 1970, Judge Pollack dismissed Rosengart’s petition.
Attorneys with experience in dealing with Army boards of review, particularly those boards based at Fort Benjamin Harrison, Indiana, will smile grimly and knowingly upon reading this history. In a myriad of recent cases conscientious objector review boards, most if not all based at Fort Benjamin Harrison, have denied applications for discharge despite findings of sincerity by interviewing officers, using the identical, or virtually identical, convoluted language that was used by the board in its final two reviews of Oliver Rosengart’s application. Until today, either none or, if my research is incomplete, very few of these cases survived judicial scrutiny. These cases are discussed at length in the margin, showing the review board’s decision, the court’s disposition, and any pertinent comments made by the court regarding the board’s findings. 10
*537 If it is true that in numerous cases, including Rosengart’s, the review board routinely denies applications from intelligent individuals (the one factor these eases apparently have in common), then the military authorities are violating their own regulations and the dictates of fundamental fairness. DoD 1300.6, § VI(B) (8) directs “individual determination of action on the basis of the facts and the special circumstances of the case.” AR 135-25(10) as in effect during the period Rosengart’s application was under consideration mandated that “the individual requesting discharge will be furnished a logical reason for denial of his application”- — a requirement assuredly not met by self-contradictory boilerplate. 11
The fundamental unfairness of denying an application because of assumptions concerning the sincerity of intelligent individuals, ROTC graduates, or reservists needs no elaboration. Like others, these persons may develop sincere and conscientious opposition to war in any form after they enter military service.
Moreover, it is fundamentally unfair to set forth internally contradictory standard phrases in place of sensible reasons for a decision. As I stated in dissent in Fein v. Selective Service System, 430 F.2d 376 , 387-388 (2d Cir. 1970) (Lumbard, C. J., dissenting), cert. granted, 401 U.S. 953 , 91 S.Ct. 975 , 28 L.Ed.2d 236 (U.S., March 8, 1971), as the only member of that panel to reach the merits of Fein’s due process challenge:
“Whether or not the local board must state reasons whenever a prima facie case is established * * * I think it clear that the Appeal Board must do so when the registrant has been granted 1-0 status below. If in defense to a criminal prosecution for refusal to submit to induction Fein obtains judicial review of this decision, the court would be limited to the ‘any basis in fact’ standard. This means that we would search his file to find any rationale which would support the Appeal Board’s decision. * * * But when the local board has found that the registrant is sincere in his beliefs and that his beliefs meet the statutory criteria, I think a search through the file for any rationale to support the Appeal Board is impermissible. Although the Appeal Board is nominally superior to the local board, I cannot see that its judgment, without the benefit of an interview with the registrant, is to be preferred unless accompanied by an explanation. If it does not agree with the local board, it must state in what ways it disagrees. Otherwise, reviewing courts — as both the Fourth *538 and Ninth Circuits have found — are blind to potential mistakes of law made by the Appeal Board in the difficult area of conscientious objector classifications.”
See also Scott v. Commanding Officer, 431 F.2d 1132 (3rd Cir. 1970) ; United States v. Lemmens, 430 F.2d 619 (7th Cir. 1970); United States v. Abbott, 425 F.2d 910 (8th Cir. 1970); United States v. Broyles, 423 F.2d 1299 (4th Cir. 1970); United States v. Haughton, 413 F.2d 736 (9th Cir. 1969).
If the interviewing officers have determined that an in-service applicant for discharge as a conscientious objector is sincere and that his beliefs meet the applicable requirements, the military review board stands in the same position as the selective service appeal board in Fein. In both instances, reviewing courts are limited to the “no basis in fact” standard, and while the in-service conscientious objector does not risk a criminal prosecution, he may face a court-martial. Without a clear statement of reasons the reviewing court cannot determine whether the board acted properly in either instance. The nominal superiority of the review board as well as the appeal board cannot substitute for the superior understanding derived from the personal interview unless accompanied by a rational explanation. And unlike the selective service situation, we are not imposing a new requirement on review boards, since the regulations already require a statement of reasons.
It is apparent that generalized, boilerplate phrases such as those involved herein in practical effect are indistinguishable from the “mere ipse dixit of lack of sincerity” condemned in United States v. Corliss, 280 F.2d 808, 814 (2d Cir. 1960), or the “ambiguous checkmark” of Paszel v. Laird, 426 F.2d 1169, 1175 (2d Cir. 1970). See also United States v. Broyles, 423 F.2d 1299 (4th Cir. 1970); United States ex rel. Morton v. McBee, 310 F. Supp. 328 (N.D.Ill.1970).
Even now, with the majority affirming the board’s ostensible finding that Rosengart is insincere, I am not sure that the board ever made this finding, far less that it stated a satisfactory reason therefor. Its first few determinations recognized that Rosengart was sincerely opposed to. all wars, but doubted the sincerity of his assertion that the claim had a religious base — a position now abandoned on appeal. In its later decisions, the board said, in effect, “he is not sincere, but if he is, the belief is sociological, philosophical, etc.” To add to the confusion, the board’s fourth decision, which was adopted by the last decision, in turn reaffirmed the first three decisions.
II.
Even if I could shut my eyes to the merry-go-round that preceded this appeal, I nevertheless see no basis in fact to support the review board’s determination that petitioner is not sincere.
It is well established that an interviewing officer’s conclusion that an applicant is sincere must be given considerable weight. See, e. g., United States ex rel. Tobias v. Laird, 413 F.2d 936 (4th Cir. 1969). As Judge Smith recently stated:
“Yet if all three officers who had seen and heard petitioner (i. e., the psychiatrist and the chaplain who interviewed him and the hearing officer who observed him) had found petitioner sincere, the Army would have been hard pressed to justify its finding of insincerity.”
United States ex rel. Donham v. Resor, 436 F.2d 751, 754 (2d Cir. 1971).
Rosengart convinced four Army officials of his sincerity, and three of them after the board had already expressed its disapproval. On the record before us, the following observation of Judge Wollenberg in a somewhat similar case seems appropriate:
“To allow an agency to use an isolated fact to override all other proofs advanced by the applicant, no matter how strong, would be to permit the caprice which the due process clause *539 commands us to prevent. Dickinson v. United States, 346 U.S. 389 , 74 S.Ct. 152 , 98 L.Ed. 132 (1953). The ‘basis in fact’ required to uphold the agency finding must therefore vary in strength according to the persuasiveness of the prima, facie case made by the applicant.”
Shirer v. Hackel, 330 F.Supp. 369, 370 (N.D.Cal., Aug. 12, 1970); accord, Adams v. Davidson, 331 F.Supp. 612 (N.D.Cal., Oct. 30, 1970); United States ex rel. Armstrong v. Wheeler, 321 F. Supp. 471, 480 (E.D.Pa.1970).
It would seem that findings of sincerity made by interviewers of in-service conscientious objectors are entitled to special weight. First, the chaplain and hearing officer possess special skills in evaluating such applicants. Second, the chaplain, the psychiatrist, and the hearing officer are all Army personnel, and thus are not likely to be sympathetic to an applicant’s opposition to war and the military. Silberberg v. Willis, 306 F. Supp. 1013 (D.Mass.1969); aff’d in pertinent part, 420 F.2d 662 (1st Cir. 1970). Third, several separate interviews are held and entirely independent opinions reached, unlike the one appearance and collective deliberation of the selective service local board.
Respondent has raised a battery of arguments to justify the review board’s finding of insincerity. I find no merit to any of these claims.
The government first points out that Rosengart’s participation in ROTC enabled him to attend law school. This overlooks the fact that Rosengart would have received a deferment for graduate study under the Selective Service regulations applicable at the time.
Respondent, as well as the review board in several of its decisions, argues that the lateness of Rosengart’s application, coupled with his prior requests for medical discharge and hardship deferment, provide a basis in fact for doubting petitioner’s sincerity. Lateness alone, however, is no basis for concluding that an individual’s conscientious objection is feigned. United States v. Gearey, 368 F.2d 144 (2d Cir. 1968). As recently stated by the Seventh Circuit:
“Tardiness standing alone, however, carries slight weight in light of the subjectivity of the beliefs involved and the fact that aging, as well as external circumstances, may serve to- crystallize sincere beliefs in a young man’s mind long after his initial registration.”
United States v. Joyce, 437 F.2d 740, 745 (7th Cir. 1971).
More important, it is settled that the mere fact that a belated conscientious objection application follows other requests for deferment or exemption does not in itself provide a basis for concluding that an individual is not sincere. Capobianco v. Laird, 424 F.2d 1304 (2d Cir. 1970). The reasons are many and persuasive. A request for other deferments is entirely consistent with late crystallization of conscientious objection. Additionally, it is quite common for a sincere individual with deeply felt beliefs against armies and war continually to reexamine his views to decide whether those beliefs rise to the level of a conscientious objection to war in any form, until necessity forces him to make that decision. Until that point is reached, this sincere individual may submit requests for other deferments to which he feels entitled, not only to avoid the stigma that may attach to a conscientious objector, but also in the hope that the ultimate introspective resolution of a matter of conscience may prove unnecessary. United States v. Rutherford, 437 F.2d 182 (8th Cir. 1971); United States v. Broyles, 423 F.2d 1299 (4th Cir. 1970); Bouthillette v. Commanding Officer, Newport Naval Base, 318 F.Supp. 1143 (D.R.I.1970); Silberberg v. Willis, 306 F.Supp. 1013 (D.Mass.1969), aff’d in pertinent part, 420 F.2d 662 (1st Cir. 1970).
In his application for discharge, Rosen-gart states that his participation in group therapy, when added to his developing humanist conviction, “has in the past year coalesced my belief that I *540 am a conscientious objector.” In its fourth decision, dated October 10, 1969, which was reaffirmed in its final decision, the review board refers to a letter from Rosengart which states: “These ideas have been formulating in my mind for many months.” The board then adds: “Were this statement true, and in consideration of his own chronological description of the sociological events that allegedly led to his conscientious objector stand, he would not have awaited active duty orders to force his hand, or for two hardship applications to be processed and reviewed.” Because this finding ignores the distinction between belief and conscientious objection, as discussed above, it is erroneous as a matter of law. There is no fact in the record which contradicts Rosengart’s assertion that his convictions “coalesced” in the period immediately preceding his application.
Rosengart’s requests for relief on medical and hardship grounds were plainly substantial. There is thus no basis for inferring that they were submitted only for purposes of delay, or that Rosengart was seeking to avoid his military obligations in any way he could (assuming that this fact would be sufficiently probative of an individual’s lack of sincerity in seeking conscientious objection). 12 Regarding the medical request, it is undisputed that Rosengart was under psychiatric care, and had been attending psychotherapy sessions since March, 1966. 13 The hardship request was predicated upon the fact that Rosengart’s mother had multiple sclerosis, and her condition was rapidly deteriorating during the spring of 1968. Petitioner’s continued presence was deemed essential not only to supplement the family income, but also because of the salutary effect of Rosengart’s continual visits in counteracting his mother’s emotional depression.
The government also argues that a letter written by a Rabbi Goldberg in support of Rosengart’s hardship request supports the board’s determination. 14 It is true that the Rabbi wrote that Rosen-gart was “anxious and willing to do his duty for his country,” but there is no indication that Rosengart and Rabbi Goldberg had remained intimate, or that the Rabbi had any knowledge of petitioner’s latest views on war and the armed forces. Indeed, the record supports the contrary conclusion since it is undisputed that Rosengart gradually moved away from Judaism toward Quaker and humanist beliefs, and that he found certain teachings of his former faith to be vindictive and incompatible with concepts of peace and brotherhood.
Finally, I come to that alleged inconsistency which persuades the majority here that there is a factual basis for the board’s action, even though (1) neither the review board nor the judge below ever mentions it in their many opportunities, (2) four Army interviewers *541 attested to Rosengart’s sincerity, and (3) the review board’s stated reasons in all five decisions were erroneous. Having “undertaken our own independent search of the record,” the majority concludes that Rosengart’s second request for a hardship deferment is inconsistent with a statement in his later conscientious objection application, and therefore the board could find “that Rosengart as a matter of expedience had tailored his facts to fit the circumstances.” I disagree.
On May 3, 1968, Rosengart’s first request for a hardship deferment was denied. From August 1, 1967, until May 10, 1968, Rosengart worked as an attorney with a law firm. Commencing May 13, 1968, he was employed with Mobilization For Youth, an antipoverty organization he had worked for as a volunteer student law clerk during his entire last year of law school. This chronology reveals that when Rosengart returned to MFY as a staff attorney, his first hardship request had already been denied. Although a second hardship request was to be submitted, there was essentially no new information to be added so that denial was virtually certain. Accordingly, there is no reason to suppose that Rosengart’s employment with MFY reflected more than a desire to return to work that interested him in the brief period prior to receipt of his active duty orders.
The supposed inconsistency between Rosengart’s statements of June 3, 1968, and August 1, 1968, is superficial. The earlier letter does not state, as the majority believes, that Rosengart anticipated “remunerative association with a patent law firm,” but merely says that he passed the Patent Office bar examination and will be able to contribute about $3,000 per year to his family income. This is not a distinction without substance, for Rosengart could supplement his family income when necessary by part-time patent work and still work with MFY.
Rosengart’s August 1, 1969 statement that he intends to devote his career to public service work as a lawyer for poor people “at enormous sacrifice in earnings” is not inconsistent with the June 3 comment, nor does it merit the majority’s sarcastic parenthetical that Rosengart impliedly intended to sacrifice his family's welfare as well. First, Rosen-gart clearly did not expect to be burdened with supporting his family for the rest of his life, so there is no inconsistency between his request for a temporary hardship delay and his intention to devote his life to public service.
Second, although Rosengart affirmed that he was working at a salary “equal to approximately 60 %” of what he could earn in business law or industry, the record does not bear out the majority’s facile assumption that he would be unable to contribute substantially to his family’s income. Sixty percent may well be $9,000, and Rosengart was paying only $49.34 per month rent for an apartment in New York.
Third, Rosengart’s June 3 remarks concerning income are only a subsidiary reason offered in support of his hardship request. The balance of that affidavit is devoted to how his frequent visits home, his ability to chauffeur his incapacitated mother, and the like were essential to her emotional well-being.
Fourth, as noted earlier, the March 19, 1969, review board agreed that Rosen-gart had made sacrifices for his beliefs. Whatever merit the argument that the interviewers did not have Rosengart’s 201 file before them may have, the review board did study this file and nonetheless credited his “sacrifices.” It seems inappropriate for this court to reexamine that finding. 15
I therefore conclude that the ground advanced by the majority for its deei *542 sion, like the other rationales advanced by respondent, is mere “suspicion and speculation [which] is both contrary to the spirit of the Act and foreign to our concepts of justice.” Dickinson v. United States, 346 U.S. 389, 397 , 74 S.Ct. 152, 158 , 98 L.Ed. 132 (1953).
Oliver Rosengart is entitled to better treatment from the administrative and judicial processes than he has received. I would reverse with direction that petitioner be discharged forthwith from the armed forces.
. “I believe in the fundamental goodness of all men. I believe that, although some men may seem to act with malice toward their fellow men, these men believe their actions to be good and they act with apparent bad motive only because they are ignorant or afraid, not because they are inherently evil. I believe that all men on earth basically want to be kind and loving to their fellow men and that this inherent love and goodness in all men can be brought out by reaching out toward our fellow men with kindness and love. I believe in loving all men under all circumstances as a way of life.
“As a direct outgrowth of the beliefs stated in the preceding paragraph, I also believe in non-violence. I believe that violence employed by one man against another and violence employed by one society against another is fundamentally morally wrong, no matter what the circumstances. I believe that society can obtain the protection it needs by employing restraining force, which can and must be done without violence.”
. The Board also stated:
“c. In reviewing the total of 1 LT Rosengart’s official records, it is a fact that he has tendered several applications in an attempt to avoid further military service * * * Notwithstanding the apparent trend in this case, this request was considered on its own merits and unanimously found to be without qualification or basis for discharge as a conscientious objector.”
As will be seen infra, this “apparent trend” was transformed into a reason for denying Rosengart’s discharge when Judge Pollack correctly concluded that other grounds advanced by the Board were invalid.
. The majority states that the objective evidence which supposedly casts doubt on Rosengart’s sincerity “in all probability was not available” to the interviewing officers. At best, this is only partially true. Captain Koch had before him Rosengart’s supplementary statement explaining bis reasons for submitting the medical and hardship deferment applications. Petitioner’s attorney, who was present at the interview, deposed that Captain Koch read this statement and then questioned Rosengart about these prior requests. Affidavit of Joan Goldberg, August 29, 1969. The government never contested this assertion, and there is no transcript of the hearing before Captain Koch.
. It is not true, as the majority implies, that the recommendations of the chaplain and the psychiatrist may be disregarded freely because these officers were not required to give recommendations. DoD 1300.6, § VI (B) (8) in effect at the time provided:
“In each ease, the Military Department concerned will:
b. include a statement and report of a chaplain based upon an interview *533 with the applicant, to include comments on the sincerity of the applicant in his belief and an opinion as to the source of the belief;
c. include a statement by a psychiatrist, or by a medical officer when a psychiatrist is not available, based upon an interview with the applicant; ”
The most recent Army Regulation, effective August 15, 1970, after all but one of the determinations by the military in this case, now prohibits the chaplain and medical officer from recommending approval or disapproval, but the chaplain still must judge an applicant’s sincerity and the source of his beliefs. AR 135-25(7) (b), (1), (2).
. “a. 1-Iis case is based on sociological experiences, a personal moral code, and philosophical beliefs. In accordance with paragraph 5b, AR 135-25, discharge applications based on these reasons will not be considered.
“b. The Board additionally questioned the sincerity and depth of his alleged religious convictions. His only reference to religious training was limited to childhood training in Judaism. This religious training obviously did not prevent him from entering military status. Further, he is not a practising Jew; but is currently associated with Quakers and Humanists in an unspecified vague manner. 1 LT Rosengart states that the religious training received prior to entering military status was the basis for liis yet unmatured beliefs. Yet experiences that occurred after joining college ROTC were not religious in nature, but simply sociological experiences that no doubt influenced his personal moral code. The portion of his application where he endeavors to depict this maturing of conscientious objector beliefs was unanimously viewed as a crude attempt to align a weakness in his case with the regulatory requirements.
“c. The letters of testimony submitted with his application do not establish any religious training subsequent to entering military status, but do support the Board’s opinion that his case is based on a strong personal moral code that was influenced by sociological experiences.
“d. In summary, 1 LT Rosengart was not considered a conscientious objector because his beliefs are founded solely on a personal moral code, philosophical views, sociological reasons, and the Board did not accept the sincerity of his stated convictions.”
. If it were true, as the government argues and the majority now holds, that “Rosengart as a matter of expedience had tailored his facts to fit the circumstances,” I do not see how the two board members could have conceded that Ros-engart made sacrifices for his beliefs.
. The board stated that the chaplain “correctly passed judgment on the sincerity of [Rosengart’s] beliefs and rendered an opinion as to the source of his beliefs. The chaplain clearly indicated that a ‘humanitarian attitude’ more so than ‘institutionalized religious belief’ was the basis of his claim.” The medical officer “included unsolicited remarks that helped categorize 1 LT Rosengart’s claim as purely sociological experiences, a personal moral code, and philosophical beliefs.”
In view of the psychiatrist’s statement that Rosengart “made a religion out of the importance of human life,” I am completely unable to fathom the board’s meaning, if any.
. In this regard, the board should have consulted DoD 1300.6, § V(C), which provides:
“Evaluation of the sincerity of a claim of conscientious objection requires objective consideration of professed belief not generally shared by persons in the military service. For that reason, particular care must be exercised not to deny bona fide convictions solely on the basis that the professed belief is incompatible with one’s own.”
. The board’s problem appears to have been the fact that Rosengart believes in the use of restraining force in self-defense. As has long been recognized, this is perfectly consistent with conscientious objection to war. Sicurella v. United States, 348 U.S. 385 , 75 S.Ct. 59 , 99 L.Ed. 640 (1955).
. 1. United States ex rel. Conrad v. Hoffman, 435 F.2d 273 (7th Cir. 970) : Applicant sought discharge from the Army Reserve. The review board said application was founded on “philosophical views and a personal moral code,” that they were “the philosophical views of an intelligent individual,” were “poorly grounded in religious training and belief” and did not stem from “adult religious training that would have altered his conscience and values.” The court held this erroneous under Seeger and Walsh, and then discounted a board finding that applicant was not “truthful or sincere in his stated religious beliefs” as reflecting the board’s erroneous view that a traditional religious foundation for beliefs is required. Writ granted.
2. United States ex rel. Armstrong v. Wheeler, 321 F.Supp. 471 (E.D.Pa. 1970): Despite findings of sincerity by a chaplain, psychiatrist, and lieutenant colonel, the review board rejected a reservist’s application for discharge as follows:
“The Board unanimously believed that LT Armstrong’s alleged conscientious objector beliefs are not truly held; are not grounded in religious training and belief; and any objection to war in any form he might truly hold is based solely on sociological experiences, philosophical views and a personal moral code.”
The court, after expressing doubt as to whether the board truly held that petitioner’s beliefs were not sincere, found no facts in the record to support the board, and granted the writ.
3. Decker v. Wheeler, 331 F.Supp. 347 (D.Minn., Sept. 10, 1970) : Two of the three who interviewed petitioner found him to be sincere, but the review board at Fort Benjamin Harrison denied discharge. The board stated: (1) “LT Decker’s alleged conscientious objector beliefs are not truly held”; (2) “are not grounded in religious training and belief”; (3) “Any objection to war in any form he might truly hold is based solely on sociological experiences, philosophical views, a personal moral code, and objection to the current conflict in Vietnam” ;
(4) “LT Decker [is] an opportunist who is attempting to use the machinery of conscientious objection to avoid fulfilling his military obligation.” Held, no basis in fact for these findings; writ granted.
4. Weber v. Inacker, 317 F.Supp. 651 (E.D.Pa.1970) : A chaplain and a major found petitioner sincere, but the review board stated:
“The board unanimously believed that PVT Weber’s alleged conscientious objector beliefs are not truly held; are not well grounded in religious training and belief; and any objection to war in any form he might truly hold is based *537 solely on a personal moral code and philosophical reasons.”
“In summary, the Board believes that PVT Weber is an intelligent opportunist attempting to gain discharge from his voluntarily incurred military obligation under the guise of conscientious objection; and any objection to war in any form he might truly hold is based on grounds other than religious training and proven religious belief.”
The court noted the board’s vacillation, queried whether it found petitioner insincere, held that there was no basis in fact, and granted the writ.
5. Silberberg v. Willis, 306 F.Supp. 1013 (D.llass.1969), aff’d in pertinent part, 420 F.2d 662 (1st Cir. 1970) : All interviewers found petitioner to be sincere, but the review board at Fort Benjamin Harrison:
“believed flint his application was founded on philosophical views and a personal moral code * * * Furthermore, the Board doubted the sincerity of his alleged beliefs and believed his application to be poorly grounded in religious training and belief * * * Further, the Board was unimpressed with the sincerity of the applicant, and unanimously find that his beliefs are not truly held.”
Judge Wyzanski stated “Indeed, the Board’s opinion gives the impression of being composed of clichés regularly used —what lawyers sometimes call ‘boiler plate.’ ” He found no basis in fact for the board’s action, and granted the writ.
. The new AR 135-25 provides that the applicant be given “reasons” for denial. Presumably no substantive change was intended.
. As stated in note 3, supra, Captain Koch knew of Rosengart’s medical and hardship requests and the grounds asserted in support thereof. He nevertheless found petitioner to he sincere.
. Respondent’s contentions that insincerity is shown by the fact that Rosengart stated on his medical form that he was a “chronic underachiever” and that he got “an occasional 24 hour stomach virus” are frivolous. Rosengart was far too intelligent to think that he might be excused from military service on either of these grounds. The humorous touch to these statements, particularly the latter in response to the question “have you treated yourself for illnesses other than minor colds,” is readily perceived. Furthermore, there is no evidence that Rosen-gart’s “chronic underachiever” remark is false. “Underachievement” and “over-achievement” are relative concepts dependent on the specific individual’s innate intelligence and ability. Thus, Rosen-gart’s attendance at City College (with rather mediocre grades) and New York University Law School, and his present employment with the New York University Criminal Law Clinic, are irrelevant.
. This was the only reason stated by Judge Pollack for doubting Rosengart’s sincerity. Although the district judge stated this reason in his first opinion, dated May 13, 1969, the board never referred to this letter even though it described in detail Rosengart’s efforts to delay active duty.
. Since it appears that Captain Koch questioned Rosengart concerning his hardship request, and he could evaluate petitioner’s demeanor, the majority’s “discovery” is especially inappropriate. See Gresham v. Franklin, 315 F.Supp. 850, 853 (NJD.Cal.1970).