Petition for Writ of Certiorari — Cole v. Schlesinger

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

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JURISt: ey ELLEN BAO MED TOOT OER E 1

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CONXSTITUTIONAT AND REGULATORY

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REASONS FOR TRANTING THE WRIT oo... 6

1 Interyrccation Of Air Foree Regulation

30-24 By The Court Of Appeals To Deny

Petitioner A Copy Of An Adverse Report

Constitutes A Denial Of Due Process

And Creates A Conflict With The Deei-

sions Of Other Courts Of Appeals And

Prior Decisions OF This Court 0.000000... 6

2. The Court Of Appeals Erroneously Ap-

plied The ** Basis-In-Faet"’ Standard In

Upholding The Air Foree’s Denial Gf

The VPetitioner’s Application For Dis-

charge As A Conscientious Objeetor ..00.0....... 11

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1. Opinion And Order Of Court Of Appeals........ 25

2. Order Denying Rehearing By Court Of

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3. Order Of The District Court For The

DUG FE III saves ccchnsscatns cake eaceccesains 26

4. Decision Of The Air Force Chief Of Staff ....... 29

CASES:

Bates v.

TABLE OF AUTHORITIES CITED

Commander, 417 F.2d 475 (1st Cir. 1969) ..12, 13

Bohnert v. Faulkner, 438 F.2d 747 (6th Cir. 1971) ...12, 13

Bouthillette v. Commanding Officer, 318 F. Supp.

ee i a 14

INDEX (coxTINVED)

Page

Chernekoff v. U.S., 219 F.2d (21 (9th Cir. 1955) ............ 8

Clay v. United States, 403 U.S. 698 (9 | ees 13

Cohen v. Laird, 315 F. Supp. 12¢5 (D.S.C. 1970) ~........ 13

Crotty v. Kelly, 448 F.2d 214 (1st Cir. 1971) ............ 8, 10

Dickinson v. United States, 346 U.S. 389 (1953) ........ 12, 13

Ehlert v. United States, 402 U.S. 99 (1971) .................. 10

Emerson v. MeKean, 322 F. Supp. 231 (D. Ark. 1971) 18

Friedberg v. Resor, 343 F.2d 935 (2nd Cir. 1971) .......... 8

Gonzales v. United States, 348 U.S. 407 (1955) ....7, 9, 10

Goodwin v. Laird, 317 F. Supp. 863 (N.D. Cal. 1970)... 18

Helwick v. Laird, 488 F.2d 959 (5th Cir. 1971) ............ 12

Kessler v. United States, 406 F.2d 151 (5th Cir. 1969) 12

MeGarva v. United States, 406 U.S. 953 (1972) ............ 10

O’Mara v. Zebrowski, 447 F.2d 1085 (3rd Cir. 1971)... 8

Ptak v. Laird, 335 F. Supp 727 (D. Colo. 1971) .......... 14

Rastin v. Laird, 445 F.2d 645 (9th Cir. 1971) ~............... 12

Rothfuss v. Resor, 443 F.2d 554 (5th Cir. 1971) ............ 12

Sicurella v. United States, 348 U.S. 385 (1954) —......... 13

Simmons v. United States, 348 U.S. 397 (1955) ........ 7,9

Smith v. Laird, 485 F.2d 307 (10th Cir. 1973) ............ 11, 12

United States v. Abbot, 425 F.2d 910 (8th Cir. 1970) 12, 13

United States v. Cabbage, 430 F.2d 1037 (6th Cir.

|, ane EnE Neen Mian aoe

United States v. Cummins, 425 F.2d 646 (8th Cir.

IE picnic ic cetocctnectseicnnentepetenacetinnianrias ennai 8

United States v. Fisher, 442 F.2d 109 (7th Cir. 1971) 8

United States v. Haughton, 413 F.2d 736 (9th Cir.

ee GE ODE CENT ee TE . 12

United States v. Noyd, 18 USCMA 483, 40 CMR

i POR ee ea aes 8

United States v. Owen, 415 F.2d 383 (8th Cir. 1969) 8, 12

United States v. Thompson, 431 F.2d 1265 (3rd

Cs OE cccenminseeconen = S

INDEX (conxtinvep)

Page

United States ex rel. Donham v. Resor, 486 F.2d

Tah CBee Cir. TOTT) cea nec cncsceereiinesnacnnssnenzevoscsnseseveonemsnees 12, 13

United States ex rel. Tobias vy. Laird, 413 F.2d

936 (4th Cir. 1969)

Orner AUTHORITIES:

Air Foree Regulation 35-24

prppaewgaer @

IN THE

SUPREME COURT OF THE

UNITED STATES

Ocronen Trem, 1974

WILLIAM BATES COLE, JR. Petitioner,

v.

WILLIAM T. CLEMENTS, JR. et al, Respondent

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE TENTH CIRCUIT

The petitioner William Bates Cole, Jr. respectfully

prays that a writ of certiorari issue to review the judg-

ment and opinion of the United States Court of Appeals

for the Tenth Cireuit entered in this proveeding on

Mareh 6, 1974.

OPINION BELOW

The opinions of the Court of Appeals, the District

Court for the District of Colorado, and the findings of

the Air Foree, not reported, appear in the Appendix

hereto.

JURISDICTION

The judgment of the Court of Appeals for the Ninth

Cirenit was entered on March 6, 1974. A timely Petition

for Rehearing en banc was denied on May 138, 1974. A

Motion for Enlargement of Time to File Writ of Cer-

tiorari was granted by Mr. Justice White on July 26,

1974 and as required, this Petition is filed before Sep-

tember 10, 1974. This Court's jurisdiction is invoked un-

der 28 U.S.C., Seetion 1254 and under the provisions of

Article I, Sections 8 and 9 of the United States Con-

stitution.

QUESTIONS PRESENTED

1. Whether a conscientious objector applicant is

guaranteed by the provisions of the Due Process clause

of the Fifth Amendment a right to review and rebut an

adverse report prepared by the Staff Judge Advocate

determining the legal sufficiency of the claim.

2. Whether the Court of Appeals correctiy found a

‘*basis-in-fact"’ for the denial by the Air Foree of Pe-

titioner’s applicatien for discharge as a conscientious

objector on grounds of insincerity where all those persons

who interviewed and had personal contact with the ap-

plicant judged him sincere.

CONSTITUTIONAL AND REGULATORY

PROVISIONS INVOLVED

United States Constitution:

Fifth Amendment. No person shall be held to

answer for a eapital, or otherwise infamous crime,

unless on a presentment or indictment of a Grand

Jury, exeept in cases arising in the land or naval

forces, or in the Militia, when in actual service in

time of War or public danger; nor shall any person

be subject for the same offense to be twice put in

jeopardy of life or limb; nor shall be compelled in

any criminal ease to be a witness against himself,

3

ner be deprived of life, liberty, or property, without

due process of law; ner shall private property be

taken for public use, without just compensation,

Air Force Regulation 30-24

Paragraph 13. Aetion at Decision Level. A final

decision based on the entire reeord will be made by

the Seeretary of the Air Foree (offieers) and HQ

USAF (airmen). Any additional information other

than the official service record of the applicant con-

sidered by the Seeresary of the Air Foree or HQ

"SAF which is adverse to the applicant, and which

the applicant lias wot had ai opportunity to comment

upon or refute, will be made a part of the record

and the applieant will be given a 15 day opportunity

from date of receipt of the additional information to

comment upon or refute the material before a final

decision is made. The reasons for an adverse decision

will be made a part of the reeord and will be pro-

vided to the individual.

STATEMENT OF THE CASE

Petitioner voluntarily enlisted in the United States

Air Foree Reserve on April 21, 1972, (Supplemental Ap-

pellate Record, Vol. I, hereinafter “SR, p. 48.) and

began a four year tour of duty in June, 1972 (SR 37).

He completed basie training at Lackland Air Force Base,

Texas, in August, 1972. Petitioner was then ordered to

Lowrs Technical Training Center, Lowry Air Foree Base,

Csiorado for training as a bomb navigation system me-

ehanie. During this course of training l’etitioner first be-

came aware of eontliets between his duties and his de-

veloping beliefs. A point came when Petitioner realized

4

he could not reasonably assume that the planes on which

he was working would be exempt from combat (SR 19-20).

This realization, its ramifications and its impact upon

Petitioner struck him with such foree that he began to

question his ability to perform: his duties. Upon imme-

diately bringing this to the attention of his instructor,

Petitioner was taken out of his training course and in-

structed to take time ‘o think about his convictions and

beliefs (SR 19-20). It was through this period of intro-

spection and soul-searching that Petitioner’s beliefs erys-

tallized into the deep convictions of a conscientious ob-

jector (SR 19-20). In accordance with Air Force Regu-

lation 35-24 Petitioner submitted his written application

for discharge on December 19, 1972 (SR 23).

Following the submission of his written application,

Petitioner was interviewed by a psychiatrist, a chaplain

on three occasions, his commanding officer and an in-

vestigating officer. In summation, these officers found

that Petitioner was a sincere conscientious objector (SR

33), that his convictions were rooted in his early religious

training and experience (SR 34), and that he should be

discharged as a conscientious objector (SR 6). After

hearings on February 1, 2 and 6, 1973, the Investigating

Officer concluded:

Although I did not personally believe there could be

a truly conscientious objector, this investiga‘ion has

led me to believe otherwise. I truly believe that Air-

man Cole is sincere in his beliefs. (SR 14)

It was only at this point that P- titioner was given

an opportunity to submit rebuttal to the documents in-

cluded in his file as of that date. Because the file con-

tained only positive findings, Petitioner made no rebuttal

(SR 12).

4)

The file was then forwarded to the office of the

Staff Judge Advoeate at Lowry Air Force Base, Colo-

rado for the standard review of procedural sufficiency.

After reviewing the file, and without consultation with

any of the participants in the evaluative process, the

Staff Judge Advocate opined that Petitioner’s request

should be denied. Although noting the strongly positive

reports from all those who spoke directly with Petitioner,

he based his recommendation on the following analysis:

... His willingness to work on an aircraft carrying

nuclear weapons is incompatible with a belief in

opposition to all wars: certainly it is an unreasonable

belief to think that nuclear weapons are not for the

purpose of waging war. It seems that Airman Cole’s

wife was very influential in his decision to request

discharge as a CO and that this may have been more

important than his stated moral convictions. He states

he attends chureh occasionally; that he tried to quit

smoking and in the future would like to become a

vegetarian. These action are not consistent, as deeply

held moral beliefs would require a way of life con-

sistent with one’s stated beliefs (SR 11). (Emphasis

in original.)

The Staff Judge Advocate concluded, based upon con-

jecture and surmise, that the Petitioner was, as a matter

of law, not a conscientious objector (SR 11).

Although a copy of this review was never provided

to the Petitioner to enable rebuttal or clarification, it was

forwarded up the chain of command. Based upon this

recommendation Petitioner's request was denied at every

level (SR 2-5). Petitioner finally received a letter denying

6

his application dated May 23, 19738 (SR 2). He then filed

a Petition for Writ of Habeas Corpus in the District

Court for the District of Colorado, pursuant to 28 US.C.,

Sections 2241 and 2242, on June 7, 1973 requesting, inter

alia, that the Court order Respondents to honorably dis-

charge him from the Air Force (Appellate Record, Vol I,

hereinafter ‘“‘R’’, p. 1). This Petition was denied on

August 21, 1973 (R 37). Petitioner then filed a Notice of

Appeal with the Court of Appeals for the Tenth Circuit.

The case was submitted on briefs, and an opinion affirm-

ing the lower court’s ruling was entered on March 6,

1974, a copy of which is appended hereto. A Petition for

Rehearing with a Suggestion for Rehearing en banc was

denied by the Court of Appeals on May 13, 1974.

REASONS FOR GRANTING THE WRIT

1. INTERPRETATION OF AIR FORCE REGU-

LATION 35-24 BY THE COURT OF APPEALS

TO DENY PETITIONER A COPY OF AN AD-

VERSE REPORT CONSTITUTES A DENIAL

OF DUE PROCESS AND CREATES A CON-

FLICT WITH THE DECISIONS OF OTHER

COURTS OF APPEALS AND PRIOR DECI

SIONS OF THIS COURT.

The recommendation and review of the Staff Judge

Advocate, the contents of which constituted the alleged

basis for this denial of Petitioner’s claim, was never

afforded to him for rebuttal or comment. Air Force Regu-

lation 35-24, paragraph 13 provides in its entirety:

13. Action at Decision Level. A final decision based

on the entire record will be made by the Secretary

7

of the Air Force (officers) and HQ USAF (airmen).

Any additional information other than the official

service record of the applicant considered by the

Seeretary of the Air Foree or HQ USAF which is

adverse to the applicant, and which the applicant

has not had an opportunity to comment upon or

refute, will be made a part of the record and the

applicant will be given a 15 day opportunity from

date of receipt of the additional information to com-

ment upon or refute the material before a final deci-

sion is made. The reasons for an adverse decision will

be made a part of the record and will be provided to

the individual.

The Court of Appeals held that the regulation requires

only that new factual information which ix adverse to the

applicant be afforded to him. Petitioner submits that this

interpretation of AFR 35-24 constitutes a denial of Due

Process as defined by this Court’s prior decisions and a

substantial number of sister Courts of Appeals.

As this Court has previously held, the refusal to

disclose adverse information is not an incidental infringe-

ment of technical rights but is an important requirement

of a fair hearing, a fundamental safeguard afforded by

traditional notions of Due Process. Simmons v U.S., 348

U.S. 397 (1955). This Court, and numerous Courts of

Appeals, have faced the issue presented here as applied

to selective service procedures for evaluation of regis-

trants for classification as conscientious objectors. Uni-

formly the decisions have required that applicants be in-

formed of the facts presented to the Appeal Board as

well as the arguments and overall position of the Depart-

ment of Justice. Gonzales v. U.S., 348 U.S. 407 (1955) ;

8

U.S. v. Fisher, 442 F.2d 109 (7th Cir. 1971); U.S. v.

Thompson, 431 F.2d 1265 (3rd Cir. 1970); U.S. v. Cabbage,

430 F.2d 1037 (6th Cir. 1970); U.S. v. Cummins, 425 F.2d

646 (8th Cir. 1970); U.S. v. Owen, 415 F.2d 383 (8th Cir.

1969) ; Chernekoff v. U.S., 219 F.2d 721 (9th Cir. 1955).

Fewer courts have had the opportunity to apply this

proposition to standards as applied to in-service admin-

istrative procedures.

The United States Court of Military Appeals in

United States v. Noyd, 18 LUSCMA 483, 40 CMR 195

(1969), has held that because the in-service conscientious

objector application is forwarded to the Secretary of the

service concerned through the applicant’s chain of com-

mand and the regulation does not confine the intermediate

commander to the information contained in the applica-

tion, it is possible that a recommendation may be based

on new information. ‘‘Fairness of procedure would in-

dicate that, at least before the final decision by the

Secretary, the applicant be apprised of unfavorable in-

formation not previously known to him and be accorded

the oppor‘unity to file rebuttal or explanation of the

adverse matters.’’ 40 CMR 195, 206.

Consistent with the Court of Military Appeals, in

the cases of Friedberg v. Resor, 348 F.2d 935 (2nd Cir.

1971) and Crotty v. Kelly, 448 F.2d 214 (1st Cir. 1971),

both Circuit Courts required that the applicant be af-

forded access to all documents which are forwarded to the

Review Board and an opportunity to reply. Yet in the

ease of O'Mara v. Zebrowski, 447 F.2d 1085 (3rd Cir.

1971), as in the instant ease, the Court of Appeals held

that due process did not require that the serviceman be

afforded a copy of an adverse recommendation accom-

9

panying his appeal. Clearly a conflict among the Courts of

Appeals exists, and it is imperative that this Court de-

lineate the specifie standards required by the due process

clause of the Fifth Amendment.

More significantly, this Court must not allow the

decision below to stand without further definition less the

strength and spirit of its prior decisions in Simmons v.

U.S., B48 U.S. 397 (1955) and Gonzales v. U.S., 348 U.S.

407 (1955) be eroded. Noting that the Appeal Board in

Gonzales, supra, as in the instant ease, is the only deci-

sion making body to pass on the entire file, this Court

held:

An opportunity for the registrant to reply is there-

fore the only means of insuring that this Board will

have all the relevant data. Furthermore, if the regis-

trant is to present his ease effectively to the Appeal

Board he must be cognizant of all the facts before the

Board as well as the over-all position of the Depart-

ment of Justice ....

The petitioner was entitled to know the thrast of

the Department’s recommendation so he could muster

his facts and arguments to meet its contention... .

Just as the right to a hearing means the right to

a meaningful hearing . . . (Citations ommitted) so

the right to file a statement before the Appeal Board

includes the right to file a meaningful statement, one

based on all the facts in the file and made with the

awareness of the recommendations and arguments to

be countered. (Emphasis in original). Gonzales v.

U.S., 348 U.S. 407, 419-415.

This Court would have had the oceasion to define the

10

necessary standards of Due Process in the case of Me-

Garva v. U.S., 406 U.S. 953 (1972), Petition for Writ of

Certiorari granted, which again raised these issuer with

respect to the Selective Service System. The Solizitor

General in that case confessed error, depriving the Court

of that opportunity. The instant case again offers the

Court this opportunity to more clearly define the Due

Process standards and determine the extent to which

they apply to in-service conscientious objector adminis-

trative procedures.

In the ease of Crotty v. Kelly, 443 F.2d 214 (1st Cir.

1971) the Court held this Court’s decision in Gonzales v.

U.S., supra to be applicable to in-service claims, finding

that Gonzales was not based upon the intricacies of par-

ticular regulations but upon underlying concepts of pro-

cedvral regularity and fair play. This Court must seize

this occasion to not only further delineate Due Process

standards required by its decision in Gonzales, bat to

apply these standards to in-service administrative pro-

cedures. Allowing this decision to stand will afford con-

scientious objector claimants in the military procedures

which are subject to less stringent Due Process standards

than required for pre-induction claimants. This is an

sssue of constitutional magnitude not yet determined by

this Court. See Ehlert v. U.S., 402 U.S. 99 (1971).

11

bo

THE COURT OF APPEALS ERRONEOUSLY

APPLIED THE “‘BASIS-IN-FACT’’? STAND-

ARD IN UPHOLDING THE AIR FORCE’S

DENIAL OF THE PETITIONER’S APPLICA-

TION FOR DISCHARGE AS A CONSCIEN-

TIOUS OBJECTOR.

The Court of Appeals for the Tenth Cireuit concluded

that the Air Force had a ‘‘basis-in-fact”’ in denying the

Petitioner’s application for discharge as a conscientious

objector. The Court thereby affirmed the conclusion of

the Air Force that the Petitioner’s beliefs were not

‘‘deeply and sincerely held.” The apparent basis for this

finding was that Petitioner’s beliefs were only ‘‘transi-

tory in nature’ and ‘‘more a passing result of his wife’s

influence, rather than being the result of any fundamental

and permanent change in his own thinking.’’ (Slip Opinion,

page 11.)

It is only after an applicant has presented a prima

facie case that the burden shifts to the Air Force to show

the Petitioner should not have been granted conscientious

objector status. Smith v. Laird, 486 F.2d 307 (10th Cir.,

1973). By inference then, the Court of Appeals must have

found that the Petitioner had presented such a case.

But it is the contention of the Petitioner that the

Tenth Cireuit Court of Appeals erred in its interpretation

of the ‘‘basis-in-fact’’ standard and its application in this

ease, More importantly, the Court’s decision has created

a split in the cireuits in finding a ‘‘basis-in-faet’’ for the

denial of Petitioner’s conscientious objector claim where

al! those persons who had personal contact with the

ae |

12

applicant found that he was sincere in his beliefs and

recommended discharge.

It is well established that mere disbelief or surmise

will not rise to a ‘‘basis-in-fact’? to justify a denial of

an application for discharge by a military service mem-

ber. Rather, there is needed hard, provable facts. Dickin-

son v. United States, 346 U.S. 389 (1953) ; Smith v.

Laird, supra; Helwick v. Laird, 438 F. 2d 959 (5th Cir.

1971); Rothfuss v. Resor, 443 F.2d 504 (5th Cir. 1971);

Bates v. Commander, 417 F.2d 475 (1st Cir. 1969) ;

Kessler v. United States, 406 F.2d 151 (Sth Cir. 1969).

Nor will suspicions suffice as a_basis-in-fact. Dickinson

v. United States, supra; United States v. Owen, 415 F.2d

383 (Sth Cir. 1969); United States v. Haughton, 413 F.2d

736 (9th Cir. 1969). Although the Tenth Circuit Court of

Appeals cites approvingly Smith v. Laird, supra, it goes

on to raise suspicion, surmise and disbelief, with no hard

provable facts, to a ‘*basis-in-fact”’.

More significantly, the Tenth Circuit Court of Appeals

has created a split in the circuits over a second issue re-

garding ‘‘basis-in-fact’’. Numerous Courts of Appeal have

held that great weight must be given to the findings of

those persons who had personal contact and interviewed

an applicant for discharge. Rastin v. Laird, 445 F.2d 645

(9th Cir. 1971); United States ex rel. Donham v. Resor,

436 F.2d 751 (2nd Cir. 1971); United States ex rel. Tobias

v. Laird, 413 F.2d 936 (4th Cir. 1969). There is no sub-

stitute for personal contact with an applicant. See for

example, Bohnert v. Faulkner, 438 F.2d 747 (6th Cir.

1971); United States v. Abbot, 425 F.2d 910 (8th Cir.

1970). Thus, no basis-in-fact can be found to exist for an

assertion by the service branch that a person is insincere

13

in his beliefs where all those persons who have inter-

viewed the applicant and have had personal contact with

him state that he is sineere in his beliefs. United States

ex rel. Tobias v. Laird, supra; United States ex rel. Don-

ham v. Resor, supra.

In this ease, all those persons who had personal con-

-taet with the applicant and interviewed him reported that

he was sincere in his belief that he could not participate

in war in any form. Nonetheless, the Tenth Cireuit Court

of Appeals gives no weight whatever to those individuals

who so reported.

In opposition to the requirements outlined by all other

cireuits facing this issue, the Tenth Cireuit Court has

given yo weight whatever to those persons who inter-

viewed the applicant and had personal contact with him.

As a matter of law, there is no basis-in-fact ’o justify

the findings of the Air Force that the Petitione:’s beliefs

were not deeply and sincerely held.

The Court of Appeals further erred in supporting

the Air Foree’s finding of insincerity since the Air Force

relied upon illegal grounds. Sicurella v. United States,

348 U.S. 385 (1954); Clay v. United States, 403 U.S. 698

(1971). Each of the grounds put forth by the Staff Judge

Advoeate and relied upon by the Air Foree were consid-

ered and found illegal in Ptak v. Laird, 335 F. Supp. 727

(D. Colo. 1971), a ease not appealed by the government.

Additionally, see as to a wife’s influence, Cohen v. Laird,

315 F. Supp. 1265 (D.S.C. 1970) and Emerson v. McKean

322 F. Supp. 231 (D.Ark. 1971); timing of application,

Dickinson v. United States, supra; Bohnert v. Faulkner,

supra; United States v. Abbot, supra; Bates v. Commander,

Reg, NEPA Se ote |

Brn on eed Maa

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ay ey

vey

CYT QQW OVA? ea SR AW MTEL IMT BITE

14

supra: Goodwin v, Laird, 317 F. Supp. 863 (N.D.Cal. 1976)

and Bouthillette v.

Commanding Officer, 318 F. Supp.

1143 (D.R.1. 1970) ; reasonableness of the applicant’s con-

cept of use of weapons, Ptak v. Laird, supra.

CONCLUSION

For these reasons, a Writ of Certiorari should issue

to the judgment and opinion of the Tenth Circuit.

September 1, 1974

errr

5701 S701 East ~f bey Avenue

Denver, Colorado 80222

JOAN TEMKO

JEFFREY a

1026 Bannock Stree

Denver, Colorado $0204

W. ROBERT MONTGOMERY

WILLARD B. —

720 Kipling, Suite

Lakewood, 1. Fy 80215

MARVIN M. KARPATKIN

1345 Avenue of the Americas

New York, New York 10019

MELVIN L. WULF

22 East 40th

New York, New York 10016

Attorneys for Petitioner-A: t and

the American. Civil Tete a

Foundation on behalf of the Petitioner-

Appellant.

APPENDIX

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

—

No. 73-1724

WILLIAM BATES COLE, JR., |

e Petitioner-Appellant, | Appeal from the United States

. District Court for the District

wastes T. CLEMENTS, JR. | of Colorado (D.C. No. C-5072)

Respondents-Appellees. /

Submitted on the briefs: February 2, 1974

W. Robert Montgomery and Willard B. Hardesty, for

Petitioner-Appellant.

James L. Treece, United States Attorney, and of Counsel,

Lt. Col. Wayne E. Robinson, Office of Staff Judge Advo-

eate, Lowry AFB, Colorado, for Respondents-Appellees.

Before LEWIS, Chief Judge, and SETH and MecWIL-

LIAMS, Circuit Judges.

MeWILLIAMS, Circuit Judge.

Airman First Class William Bates Cole, Jr., assigned

to Lowry Air Force Base, Denver, Colorado, made appli-

eation for discharge as a conscientious objector from the

Regular United States Air Force. This application was

ultimately denied by the Air Force, whereupon Cole insti-

tuted habeas corpus proceedings in the United States

District Court for the District of Colorado. The named

respondents filed their answer to Cole’s petition, and

pstatrmesctFte RUE:

SS ee

ah OLE PE EE

16

the matter was then tried upon the reeord as thus made,

At the conelusion of the hearing on this matter, the trial

court found that the proeedure followed by the Air

Foree met the requirements of Air Foree regulations

35-24 and that Cole had aveordingly been afforded due

process. Additionally, the trial court found from the

record before it that there was a basis in faet for the

denial of Cole's application and aecordingly denied the

petition. Cole now appeals. We affirm.

Before considering the applicable Air Foree regu-

lations, referenee should first be made to the chronology

of proceedings. Cole enlisted in the Regular Air Foree

on June 21, 1972, for a period of four years’ active duty.

Upon completion of his basie training at Lackland Air

Foree Base, Cole was transferred on August 16, 1972, to

Lowry Air Foree Base at Denver, Colorado, for training

as a bomb-navigation systems meehanie. On or about

January 23, 1973, Cole formally submitted his application

for discharge as a conscientious objector. In connection

with his application for discharge, Cole was interviewed

and evaluated by a chaplain, a psychiatrist and a hearings

or investigative officer, each of whom made a written re-

port which was made a part of Cole's official file. The

chaplain, incidentally, believed Cole to be sineere in his

beliefs; the psychiatrist recommended that **serious con-

sideration’ be given Cole’s application, and the inves-

tigative officer thought Cole to be sincere and reeom-

mended approval of his application for discharge.

It was at this point that the file as thus made was

given Cole in aceord with the provisions of regulation

35-24, paragraph 11f. That particular paragraph provides

that a copy of the reeord shall be given the applicant and

17

further provides that the applicant may submit a rebuttal

to any and all material in the file, including the investi-

gative officer's report. Cole responded in writing that he

did not desire to file a rebuttal.

Thereafter, Cole’s commanding officer, a Captain

Farrell, also recommended approval of Cole’s application

for discharge. As has been above indicated, up to this

time Cole's application appeared to be proceeding quite

smoothly, from his standpoint at least. From that point

on, however, matters took a turn for the worse.

It was at this juncture that the matter, pursuant to

regulation 35-24, paragraph 12, was referred to the Staff

Judge Advocate at Lowry Air Foree Base for review.

The Staff Judge Advocate reviewed the file as thus made,

taking no ‘*new’’ evidence of any kind, and made a recom-

mendation that the application be denied. The basis of

this recommendation was in essence that Cole had failed

to sustain his burden of proving that his application for

discharge as a conscientious objector was founded on

deeply and sincerely held beliefs. The foregoing was but

the gist of the recommendation, which was detailed in

considerable particularity.

The Staff Judge Advoecate’s recommendation, along

with Cole’s file, was then forwarded to the Commander

of the Lowry Technical Training Center. Cole, however,

was not given a copy of the negative recommendation

made by the Staff Judge Advocate, and counsel argues

here, as he did in the trial court, that the failure to give

Cole a copy of the recommendation of the Staff Judge

Advocate denied him an opportunity to file a rebuttal

thereto, and was not in compliance with the provisions

of regulation 35-24, paragraph 13.

18

Without going into further detail, the Commander

of the Lowry Technical Training Center recommended

disapproval of Cole’s application. Thereafter, Cole’s ap-

plicaiion proceeded upward in the chain of command with

several additional recommendations of disapproval, until

the application was finally and formally denied by the

Air Force HQ. This petition for habeas corpus then fol-

lowed the final denial of Cole’s application.

In this court, Cole presents essentially two questions:

(1) Was Cole entitled, under the provisions of regulation

35-24, paragraph 13, to receive a copy of the negative

recommendation of the Staff Judge Advocate and to have

fifteen days thereafter to comment on or refute such

recommendation, and did such failure of the Air Force to

comply with the regulation constitute a violation of pro-

cedural due process; and (2) is there a basis in fact for

the denial of the application for discharge? In our view,

there was compliance with the regulations here involved,

and there was a basis in fact for the denial of Cole’s ap-

plication for discharge. It is on these grounds that we

affirm.

Paragraph 11f of regulation 35-24 provides that the

investigating officer’s report and recommendation, along

with the individual’s application, all interviews with

chaplains or doctors, and any other item submitted by the

applicant in support of his case shall constitute the

‘‘record’’ and that a copy of this record shall be furnished

the applicant at the time the record is forwarded to the

commander who had appointed the investigating officer.

Under the provisions of this particular paragraph, the

applicant then has fifteen days within which to submit

a ‘rebuttal’? to such report. As indicated, Cole was

19

furnished such report, and in connection therewith indi-

cated that he did not desire to file a rebuttal. So, there

was full compliance with paragraph 11f.

Paragraph 12 goes on to provide that fifteen days

after a copy of the aforesaid report has been furnished

the applicant, or upon receipt of his rebuttal thereto,

whichever is sooner, the record is to be forwarded to the

local Staff Judge Advocate for legai review and that

when the record is complete it will in turn be forwarded

to the commander who appointed the investigating officer.

Following through, then, the commander in turn for-

wards the record with his recommendation, and reasons,

‘‘through each level in the chain of command,’’ with

recommendations being attached ‘‘at each level.’

Paragraph 13 is the particular paragraph with which

we are here concerned and it reads in its entirety as

follows:

13. Action at Decision Level. <A final decision based

on the entire record will be made by the Secretary

of the Air Force (officers) and HQ USAF (airmen).

Any additional information other than the official

service record of the applicant considered by the

Secretary of the Air Force or HQ USAF which is

adverse to the applicant, and which the applicant has

not had an opportunity to comment upon or refute,

will be made a part of the record and the applicant

wil’ be given a 15 day opportunity from date of

receipt of the additional information to comment

upon or refute the material before a final decision

is made. The reasons for an adverse decision will be

made a part of the record and will be provided to

the individual.

‘s

20

In ruling that the Air Foree had complied with its

regulations, and more particularly paragraph 13, the

trial court made the following pertinent comment:

The petitioner's argument of the first issue is that

under the dietates of Air Force Regulation 35-24,

paragraph 13, he is to be given an opportunity to

rebut all reports and recommendations ineluded in the

conscientious objector file. The government argues

that the regulation is not to be construed so broadly

and that the Air Foree has properly interpreted and

complied with the regulation by giving the airman

an opportunity to examine and comment on all fae-

tual material in the file. The factual input was com-

plete when given to the petitioner. The controversy

centers on the subsequent adverse ereommndations

added by the command level reviewers. The relevant

part of the regulation reads ** Any additional informa-

tion... Which is adverse to the applicant... .’’ The

last sentence of the regulation provides ‘*The reasons

for an adverse decision will be made a part of the ree-

ord and will be provided to the individual.’’ This dif-

ference in semanties demonstrates that the choice of

terms is not accidental. Juformation is certainly dif-

ferent from reasons, and therefore the Court finds

that the petitioner should be and was afforded an

opportunity to rebut any factual matter im the file

but does not have the right to comment on and rebut

the reasoning giving rise to each conclusion made at

varicus levels of command. The Court finds that the

Air Force has complied with its own regulations in

processing the applicant's file; that these regulations

comport with due process and that therefore the re-

quirements for due process have been met. In re

21

Kanewshe. 260 F.Supp. 521, 524 (N.D.Calif. 1966) ;

Minasian v. Eagle, 292 F.Supp. 543 (C.D.Calif. 1967)

aff’d. 400 F.2d 137 (9th Cir. 1967). (Emphasis by

the trial court).

We generally agree with the trial court’s analysis of

this matter. In our view, Gonzales v. United States, 348

U.S. 407 (1955), and Crotty v. Kelly, 443 F.2d 214 (1st

Cir. 1971), relied on by counsel, are not really in point.

Gonzales was concerned with the failure to give the

would-be conscientious objector a copy of a report and

recommendation made by an investigative body charged

with checking into and generally making an investiga-

tion of the entire matter. In Gonzales, the Supreme Cour.

held that the particular military regulations there under

consideration implicitly required that the registrant be

supplied with ‘‘adverse evidence”’ and the adverse recom-

mendation based thereon. So, Gonzales was concerned with

an investigative report and recommendation upon which

the final decision was, in part, based. Here, we are con-

cerned with a recommendation made in the course of

the decisional process, and not as a part of any further

and additional investigative efforts. In the instant case,

the recommendation of the local Staff Judge Advocate

was made on the record as theretofore compiled, with no

further factual matter being added to the file. We deem

the report under consideration in Gonzales to be akin to

the report and recommendation made in the instant case

by the investigating officer, a copy of which was given

Cole, and to which he had the opportunity to respond.

Nor do we believe that Croffy suggests a different

result. In Crotty, the applicant was not given a copy of

the chaplain’s report, the psychiatrist's report, or the

22

hearing officer's report, each of which, in the instant

ease, was furnished Cole and to which he was given op-

portunity to respond. All of which suggests the inap-

plieahility of Croffty to the present ease. In sum, then, we

conclude, as did the trial court, that there was substantial

compliance by the Air Force with its regulations and that

there was no violation of due process.

The other matter here urged is that there was no

basis in fact for the denial by the Air Force of Cole’s

application for discharge. Our study of the reeord con-

vinees us that there was. In this general connection we

recognize that our scope of review is a very narrow one.

Smith v. Laird, 486 F.2d 307 (10th Cir. 1973). The seope

of judicial review in a ease of this kind has indeed been

characterized as being ‘‘the narrowest known to the law.*’

Bishop v. United States, 412 F.2d 1064 (9th Cir. 1969).

It is not within our provinee to draw the inferences, nor

are we of course permitted to simply substitute our hest

judgment on the matter for that of the Air Foree. At

the same time, we have stated that once the applicant

makes a prima facie case for classification as a con-

scientions objector, the Government must either show

some “hard, reliable, provable facts’? which would pro-

vide a basis fer disbelieving applicant's sincerity, or, it

must show ‘‘something conerete in the reeord which sub-

stantially blurs the pieture painted by the applieant.’’

Smith v. Laird, supra. With these general principles in

mind, let us examine Cole's file.

It is apparent that the basis for the denial of Cole's

application was that his claim for conscientious objector

status was not founded on deeply and sincerely held

beliefs. As indieated, Cole voluntarily enlisted in the

23

Regular Air Foree for a four-year period of duty, and,

at the time of his enlistment, Cole indicated that he was

not a conscientious objector. Cole had been recently mar-

ried, and certainly one reason for his enlistment was his

desire to earn a livelihood. As a condition of his enlist-

ment, Cole requested, and his request was honored, that

he be trained as a bomb-navigation systems mechanic

and he was accordingly assigned to Lowry Air Force

Base for such training. It was Cole’s contention that he

became a conscientious objector to all war while in the

course of such training.

According to Cole, the ‘‘ineident’’ that triggered his

change of heart was when he realized that he was learn-

ing to equip aircraft with conventional weapons, and not

just nuclear weapons. In this regard, Cole stated that he

had not objected to equipping aircraft with nuclear wea-

pons, beeause in his own mind he doubted that nuclear

bombs would ever be dropped, but that he could not

bring himself to placing conventional weapons on aircraft,

knowing that such might some day be put in actual use.

The Air Foree attached significance to this attempted

distinction on the part of Cole and felt that it was not

truly indicative of an across-the-board objection to war.

Certainly such is a permissible inference and, in our view,

does tend to ‘‘blur’’ Cole’s present declaration that he is

now opposed to war in all forms.

Cole's avowed present objection to war is not, as such,

religiously motivated, which, of course, it need not neces-

sarily be. Welsh v. United States, 398 U.S. 333 (1970),

and United States v. Seeger, 380 U.S. 163 (1965). But

if his objections be not religiously oriented, Cole must

then demonstrate that his beliefs are held with the strength

24

of traditional religious convictions. This burden the Air

Foree held Cole had not met. And in our view the record,

and the permissible inferences that may be drawn there-

from, support such conclusion. In this general connection,

the Air Force indicated that Cole’s avowed present aver-

sion to war was not deeply and sincerely held, but was

only transitory in nature, and was more a passing result

of his wife’s influence, rather than being the result of

any fundamental and permanent change in his own think-

ing. Overall, then, we conclude that the action of the Air

Force finds a basis in fact in the reeord.

Judgment affirmed.

20

MAY TERM — MAY 13, 1974

Before Honorable David T. Lewis, Chief Judge, Honor-

able Delmas C. Hill, Honorable Oliver Seth, Honorable

William J. Holloway, Jr., Honorable Robert H. MeWil-

liams, Honorable James E. Barrett, and Honorable Wil-

liam E. Doyle, Cireuit Judges.

IN THE MATTER OF THE

APPLICATION OF AIRMAN FIRST

CLASS WILLIAM BATES COLE, JR.,

Petitioner-Appellant,

v. » No. 73-1724

WILLIAM T. CLEMENTS, JR., Acting

Secretary of Defense, et al.,

Respondents-A ppellees. |

This matter comes on for consideration of the petition

for rehearing and suggestion for rehearing en bane filed

by the petitioner in the captioned cause.

Upon consideration whereof, the petition for rehear-

ing is denied by Cireuit Judges Lewis, Seth and MeWil-

liams to whom the matter was submitted.

The petition for rehearing having been denied by the

original panel to whom the matter was submitted anu no

member of the panel nor judge in regular active service

on the Court having requested that the Court be polled

on rehearing en bane, Rule 35, Federal Rules of Appellate

Procedure, the suggestion for rehearing en bane is denied.

HOWARD K. PHILLIPS

Clerk

26

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

IN THE MATTER OF THE

APPLICATION OF AIRMAN FIRST

CLASS WILLIAM BATES COLE, JR.,

Petitioner,

vs. » ORDER

WILLIAM T. CLEMENTS, JR., et al,

Respondents.

C-5072 :

This matter is before the Court on a petition for a

Writ of Habeas Corpus filed by Airman First Class

William Bates Cole. The petitioner alleges that he is

presently illegally restrained of his liberty in the United

States Air Foree by the respondents. The government

filed a response to the petition. The petitioner replied

+n a memorandum brief and the government filed a reply

brief. There are three issues to be resolved as stated by

the petitioner.

1. Did the oportunity afforded the petitioner for

rebuttal satisfy the requirements of pertinent Air Force

regulations and afford him due process of law as guar-

anteed by the United States Constitution?

2. Did the petitioner sustain his burden of presenting

a prima facie case of conscientious objection on his part

to the United States Air Force?

*% Does there exist a basis in faet for denying peti-

tioner a discharge from the United States Air Force

pursuant to its regulations as a conscientious objector?

The petitioner’s argument of the first issue is that

under the dictates of Air Force Regulation 35-24, para-

27

graph 13, he is to be given an opportunity to rebut all

reports and recommendations included in the conscientious

objector file. The government argues that the regulation

is not to be construed so broadly and that the Air Force

has properly interpreted and complied with the regulation

by giving the airman an opportunity to examine and

comment on all factual material in the file. The factual

input was complete when given to the petitioner. The

controversy centers ou the subsequent adverse recom-

mendations added by the command level reviewers. The

relevant part of the regulation reads ‘‘Any additional

information . . . which is adverse to the applicant. . . ag

The last sentence of the regulation provides ‘‘The reasons

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

and will be provided to the individual.’’ This difference in

semantics démonstrates that the choiee of terms is not

accidental. Information is certainly different from reasons,

and therefore the Court finds that the petitioner should

be and was afforded an opportunity to rebut any factual

matter in the file but does not have the right to comment

on and rebut the reasoning giving rise to each conclusion

made at various levels of command. The Court finds that

the Air Force has complied with its own regulations in

processing the applicant’s file; that these regulations com-

port with due process and that therefore the requirements

for due process have been met. In re Kanewshe, 260 F.

Supp. 521, 524 (N.D. Calif. 1966); Minasian v. Eagle,

292 F. Supp. 543 (C.D. Calif. 1967) aff’d. 400 F.2d 137

(9th Cir. 1967).

The second issue in this case is closely connected

with the third issue and it may be fair to state that they

are to some degree intertwined. The Court considers the

question somewhat differently from its formulation by

G82 Ra RELI OLY A ERNE

ENE ENS OTP Fe

LLL TN EN ee TT PERE LATA LLNS

Preeseserasrser sara eT

28

the petitioncr. The question of whether the petitioner pre-

sented a prima facie case has already been resolved in the

negative by the Seeretary of the Air Foree, by exercise of

his diseretion. The Ccurt’s review is narrowly limited to

ascertaining whether there is any basis in fact for the

finding of the Seeretary. Helwick v. Laird 438 F. 2d 959

(Sth Cir. 1971). The reeord in this ease reflects that the

issue of sincerity was resolved against the petitioner on

the basis of the f

not whether the Court could reach a different conclusion

than the Seeretary, or if there were inconsistent facts

which were not completely resolved, but whether there is

‘ndeed a basis fer the Secretary's decision. The petitioner

acts presented, The criteria on review is

has not shown that thre was no basis in faet, but has

merely argued a different interpretation of these facts.

This is plainly not sufficient to entitle him to relief.

The Petition for Writ of Habeas Corpus is denied.

p

Dated at Denver, Colorado, this 21st day of August,

1973.

FRED W. WINNER

United States District Judge

wea

29

DECISION OF THE AIR FORCE CHIEF OF STAFF

DPMAKE 23 May 1973

Classification as a Conscientious Objector — Amn William

B. Cole, FR 263-08-2677.

Lowry Tech Tng Cen/DPMQS

1. Application for classification as a conscientious ob-

jector submitted by Airman Cole is disapproved. The

application does not contain sufficient proof to establish

his claim.

9. Airman Cole has failed to substantiate that he was

opposed to all wars, or that his beliefs were so deeply

held as to allow no rest or peace if he remains a member

of the Air Force. In this regard, he has failed to provide

information that would serve to establish when, where,

how and who or what caused his beliefs, or to demonstrate

a belief in opposition to all wars so deeply held as to be

a primary controlling force in his life.

3. The application has been retained for file in airman’s

master personnel records.

FOR THE CHIEF OF STAFF

DENNIS R. MILLER, Captain, USAF

Directorate of Pers Program Actions

oer eee ca |

PRATT PETE

FREAD PTE FOI

A) xe

IN THE

SUPREME COURT OF THE UNITED STATES

Ocroper Term, 1974

WILLIAM BATES COLE, JR., Petitioner

v.

WILLIAM T. CLEMENTS, JR., et al., Respondent.

CERTIFICATE OF SERVICE

I hereby certify that on this 7th day of September,

1974, three copies of the Petition for Writ of Certiorari

were mailed, postage prepaid, to:

Honorable Robert H: Bork

Solicitor General of the United States

James Treece, Esquire

U.S. Attorney

U.S. Ccurthouse

19th and Stout Streets

Denver, Colorado 80202

Lt. Col. Wayne E. Robinson

Offiee of the Staff Judge Advocate

Lowry Air Force Base

Denver, Colorado

Clerk, United States Court of Appeals

for the Tenth Cireuit

1 further certify that all partjes | required, to be served

have been served. 4 rR eu /, a

/ UDO ARE

701 East Avenue

Denver

3 lorado

Attorney for Petitioner-Appellant