Respondents Brief — Parisi v. Davidson

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No, 70-91

—

Is the Susireme Court of the Mnited States a

OCTOBER. TERM, 1971 :

° .

«JOSEPH PARISI, PETITIONER

MaJoR GENERAL PHILLIP B. DAVIDSON, ET AL.

ON WRIT OF. . CERTIORARI TO THE UNITED STATES

COURT. OF APPEALS FOR THE NINTH CIRCUIT

pe a

oo ae

BRIEF FOR THE RESPONDENTS

ERWIN N. GRISWOLD,

Solicitor General,

RoBERT C. MARDIAN, .

Assistant Attorney General,

WM. BRADFORD REYNOLDS;

: Assistant to the Solicitor General,

ROBERT L. KEUCH,

ROBERT A. CRANDALL,

‘Attorneys, |

| Department of @ustice,

hens” _. Washington, D. C. 205380.

- Opinions below

Jurisdiction

Question presented | a

Statutes and regulations invélved

Statement’...

} Summary of “argument

| Argument: Cie | 7

; _ A serviceman should be denied access to théscivil

courts for extraordinary réli¢f until final dispodi-,

tion of his claims on related issues pending. before ;

military tribunals

A. The’civil courts. oni the military =~ pea

B. - Applying the exhaustion requirement, in the -

instant case ..... One Saree

C... The military tribunals can afford appropriate

- relief .. :

D. The factor of delay.

Conclusion

Appendix A.

Appendix _

| Appendix C.

Appendix D

y ue |

‘ Anderson V. Laird, 487 F. 2a 912, petition for cer-

_ tiorari pending, No. 70-240, this Term ..

Anderson Vv. MacKenzie, 306 F. 2d 248 ......2.........4S 16

_ Beard v. Stahr, 370.8. 41 Lees 16, 17, 31

Bidlock Vv. United 3 :

Cases:

“¢ . _ Il : ».

| | Cases—Continued ate Fg eee sy

DoS Be. ~ Brateher.v. McNamara, 416 F.2d 760 .......%.... ... 18, 19

_i 4). +. Broqon v. McNamara, 387 F. ‘2d 150, meee de-

. a nied, 390 UB. BaOs ...2.2...-00-4 Rept .-- ror er 13

- 7 —~__ 2 Burns v. Wilson, 346 U.S, BT... 2, 18, 14,.17, 27

ev. Resor, 412 F. 20.774 .......--------------reep

par” #.. Commanding General, W.D. La., Civ.

ra a No. 16.573, decidett August 21, 1971 ...-2.----- 26

.- & - Cooper Vv. Barker,:-291 F>Supp- 952(......-. b cwenas ee eoestcas 25

4. Crane Vv. Hedrick, 284 F. Supp. seams een Pe eee 22,28 . :

‘ Craycroft V. Ferrall, 408 FY 2d 587, vacated_and re-

~* wmanded,-897 U.S. 335 «.:.2.....--<2 een 18, 19; 24, 31.

Dale v. United States, 19 U.S.C A. 254, 41 C. MR.

RS ee ep ee EC LIE EO RED en 48

; _ Davies V. Clifford. 308 F. 2d 196 Pe ee

* 4 Dombrowski v."Pfister, 380 U.S. 479 -2..------------------ 30.

: Doyle %. Koelbl; 434 F. 2d 1014, certiorari denied, ,

BO TT hn DO ac coca nek secon cn tecten 16, 17

* Drifka v. Brainard, 294 F. Supp. 425 cn ee oe eee — 40

: Dynes V. Hooter, 20. How "66. .......0--.:..... niger Scaet 13:

ae - .. Ehlert v.. United States, 402 U.S. 99 Fn enn ee 3838

/ gs. _ Eagles v. Samuels, 329 US. MO ee ota ctcnccess nee 11, 4 i

3 Fay V.Noia;: S72 U.S. 891 «2 -2---ienen eee «11, 15, 20

~ Gale V. United States, 17 US. C. M. A. 40, 87 C. M.R.

SR Se eens oka eee 10,42, 45

n VOWilson, 289 F. Supp. oe ae Sessa 25

Gillette v. United States, OU AO rca «48

~ Goquen Vv. Clifford, 304 F. BONE BO ic 0G eases 85

Gorko v. Commanding Officer, 314 F. 2d 858 eee Rice |

Grimley, Fn ré, 187 U.S. VAT -22.02- paneer _ 44

Gusik V. Schilder, 340 U.S. 128°. Saas “14, 17, 25, 31, 41,46, 47 |

‘Hamilton v. Regents, 293 U. Sy | a Rarer 48

Hammond V. — sie F. 2d 706 “..,..... 11, 13, 17, 22, 23,

»» 24, 25

oe ae Hemet 4, nike 935 ‘US. 479 pee ae ~ 16

_* & ° Horner v. Resor, 19 U.S.C.M.A. "285 41 CMR. ..

‘ cps. Cia TSC ene ea. OC Er one On OA Tae eee Te 43

j Johnson Vv. United States, 19 USC. MA. 407, 42 :

—CMER TAD nee eeeeecceren Neeeercnan 4g.

Jones V. Cunningham, 871 U.S. 286 -2...-:.-----.------- eae * |

wi ‘Kauffman v. Secretary. 4! the Air Foree, 415 F. 2d

- 991 CO RE COTE SRC ORIEN Utena S ae

= 7 ae sie :

ma | | NSM RAEEEUNNER HRS oo

€

| mM : 2

Canes—Continued Sh - . _ Page

Kelly, In re,’ 401 F. 24 211 BEAR caer DE bf 25, 40

Kennedy v. Commandant, 377 F. 2d 339... 12

King Vv. Moseley, 430 F. 2d 782 ............... i mere! 12

Kré@per Vv. Terry, 418 F.2d 78 _.....2.2.....2..2 18, 19

‘i Lee v. Peterson, 18. US.C.M.A. 545, 40 C.M.R.

ST ae oe a ae

. Levyv: Resor, 17 U.S.C.M.A. 135, 37 CMR, 399. 43

. Locks v. Laird, 449 F.2d 479 oe. &......26, 30, 40

McCurdy v. Zuckert, 359 F. 2d: 491, certiorari de- a

nied sub nom. McCurdy v. Brown, 385 US. 903 .. 16 --

McElroy v. Guagliardo, 361 U.S. 281 .¢.......... Perera 16

McFadden v.. Selective Service System, 415 F. 2d.

UA ES Se COCR TAA aN DAT aT? Sai, Pik eee > 41

McGee v. United. States, 402.U.S. 479 ............ 16, 26, 30, 31

McKart v. United States, 395 Ue: SOO pes: 8, 16, 26, 28, .

80, 31, 46

Michaelson V. ‘Herren, 242 Pi od 693 ee,

Minasian Vv. Engle, 400 F. 2d 137 -...0.-.--.-ceccccco-e--- oe |

Mueller v. Brown, 18 US.C.M-A.’ 534, 40 C.M.R. a

i EPO LEON BMY ey EEL OR ts REET OE 23, 45

Noyd v. Bond, 395°U.S. 683 ........ 8, 15,17; 25, 27, 31, 43, 47

Noyd v: McNamara, 378 F. 2d 538 DED Seen moor oe |!

O'Callahan v. Parker, 05 2 9, 12, 16, 29

Oestereich v. Selective Service Board, 393 U.S. 233.. 11, 29

‘Orloff y. Willoughby, 345 U.S. 83 _..... sea 12, 13, 17, 27

.Parisi v. Davidson, 396 U.S.+1233 +....:... we Ei errs 5 rae - 20.

Patterson Vv. Lamb, 329 U.S. 589: 2... Spend et

Polsky v. Wetherhil, No. 1656, October Term 1970,

certiorari granted and cause remanded; 403 U. S. :

i LO ARIEL EE CEE LANL EE ATE 24

Raderman v. Kaine, 411 F. 2a" 1102, certiorari dis- -

* misse@P S96 U.S. 976 sian ence selec ecec cee ceteceecdenenee eee

Reaves Vv. Ainsworth, 219 U.S. 296 . Ce reas FS |

‘Reid v. Covert, 354 vat eed. MRNA: 16, 27

Relford v. Commaridant, 401 U.S..355 eae are 12

Sanford v. United States, 399 F.2d 693 _..... Sw SD

_Schlanger ‘v. Seamans, 401 U.S. 487 ............. Pace ee - il

Smith v. Resor, 406 F. 2d 141 0.

Sohm V..Fowler, 365 F. 2d 915. 0. 16, 17

Sommers, In re, 325 U.S. 561 elon era ater ieee Danae 48 .

a A uh R A BORMLALSa SUBDIR PAB SAS Ae At ceils Ae

b) - '

, ar eam

" Cases—Continlued Page

Swisher w. United States, 237 F. Supp. e2t. af- |

firmed; 854 F.2d 472. 22> SOtceaae |

—Talford ¥. Seaman, 306 F. Supp. 941... ------n---- 22, 28

_ Taylor, In.re, 12 U.S.C.M.A. 42731 C.M.R. 18 -....- 42

: Thompson v, Wetherill, W.D. Okla., Civ. No. 70- °~ . *

' 167, decided April 21, 1970 -..:....-----.s---------------- a, aes

: Toth v. Quarles, 350 U:S. 11 -...-.-- CePR hele a ree gran 16, 27

United States v. Abilene & So. Ry. Co., 265 U.S. 7

5 |, RAS Ae AIROS ED Bie CRI CPE, eemnireerneres wee net coos oe 20

United States v. “Atigenblick, 393 USS. 348 | REGS A em, 12,43.

_ United States v. Avila, 41. C.M.LR. 654 1... 86

United States v. — 18 U.S.C.M.A: 10, 39 |

COMLR. 10 22 ,p-c--ta-cnenendeneneeetgenr Ee! 43, 45

United States V. Bo 88 C.M.R2917, 0.2... chs) 33 -

United. States v. Eliason, 16 Pet. 5 eee DOC REEEEE aes +

United. States Vv. Frischholz, 16 U. S. C:M.A. 150, 36

C.M.R. 806 ....-----2p22i---n-cnsn--eennintp ore 43 .

United States v. Goguen, No. ADT. 998 (A.C.M.R.,

eptember 2, 1970), reversed, 20 U.S.C. WA. .--

527, 43 C.M.R. 367 .......-...------------------- 3" 35, 36, 38, 40 |

United States v. hea te 19 U.S.C.M.A. 8, 41

+ C.M.R. 88 ......-- font aanaecienden-nnsdencsensevinsceeoesbcnwegtenbawensen 43

United S States Vv. } ee 40 CMR. 404, review ‘de-

. ned, 89 C.M.R.. 298 ~..2-2-cg:cs:--—nsnencceeeceee 3

United States v. Larson, 20 US.CM.A. 565, a

CWE 406. 2.

United States v. MacIntosh, 283 U3. 006 ...... cre 7

United States v. May, 41 C.M.R. 663 eg Sen SR ae

United States. v. Noyd, 18 US.C.M.A. 483, 40 -

aN +5 FBG. aie eae renee ene J eeeenee 9, 33, 34, 36, 37, 38.

5 United States v. Quirk, 39 OUR BR eS 33

United States V. Rinehart, 8 US.C.M.A. 9402, 24. .

a ee Fe en ee ee AQ -

‘United States V. Sigmon— CM. 416,356-(decided i

‘January 2, 1968) .......,--------------/---- 33

United States Vv. Snyder, 18 U: S.C.M.A. 480, 40

CWP 302. ow 2 -44

United States v. Stewart, 20 US.C.M.A. 272, 43

“UD Sy | fe AieL niasntspeeed ate UNGER Soe 9, 36, 37,38,41

Liat States Vv. heal OT 4 a Oe ee a 33

om 4

- Vv

*Cases—Continued ere oe = \" .Page

United States v. Wilson, 19 U:S.C.M.A. 100, 41

C.M.R. 100 - ELIE IOS Rete OR Ace SOO LT 85

ov United States ex » rel. Berry Vv. Commanding General,

Ae Oe Ue 16

‘United States ex rel. ikea; V. Chfford, 409. F. 2d °

Oe ear te ce rn rae an es he ea a ry 19

_ United States ex ‘rel. Mankiewicz V. Ray, Q9 F.2d-

So a: Se TS te nae Ms BRAC LA are -. 25

‘Vidal, In re, 179 U.S..126 SEN ac Atae te ae RD NOE "48

‘Wales’ v. Whitney, 114 U.S. 564. STEP ee OE | Uy

| Welsh v. United States, 398 U.S. 333 ELS ioe 48

‘ Wills v. United States, 384. F. 2d 943, certiorari ;

* denied, 392. U.S. 825 ........... PURE e | 630

Witmer v. United States, 348 U.S. 375. eeeeenre eet

Wolff v: Selective Service, 372 U.S. 817 -2....../n2.----- 26, 30

Younger V. Harris, 401 U. 8. Oe ee 15,30 -

“Constitution, statutes and Pepulneitne

: US. Constitution : : " :

Set SR ee ee oe 1G oT

Act of May 5, 1950, ch. 169, 64 Stat. 107 0... . - 18°

» All Writs Act, 28 U.S.C. 1651 (a) _.... 2,10, 28, a 45, 54

Articles of War, 62 Stat. (1946 ed. ) 627 Art: 53 ..:' 18 |

Art. 58, 62 Stat. 639, 10 U.S.C. (Supp. TIT) 1525 . 14_

Legislative Reorganization Act, amended, 70A Stat. |

116, § 207, 10 U.S.C. ( (1952 ea.) Supp. ‘ye 1552,

an | Seen cE a PE OS aE 18

Military Justice Act, 10 U. S.C. (Supp. V) “g19 ae 13

Military. Selective Service Act of 1967, 81 Stat.

3 | parent ene Nadneees, See SC Ret eee ne ORT Ie eT ere ae ea 32.

50 U.S.C. (1964. ed.) 456 (j) ee pone ee ieee ‘48

’ Selective Service Draft Law of 1917, 40 Stat. 76.. 32

Selective Training and Service Act ¢ of eal) 54 .

Cee HO ee Se aRNnRO a ee Le TU ., .82

Uniform Code of Military Justice: ee .

10. U.S.C. 138 .....:.. ee eR

IO Ue See ae” AD

Arts. 16-21, 65, ‘10 U.S.C. St 865. 27

oe Constitution, statutes and regillations—continued -Page

aoe ° Art 10 UEC. a a

7 Art. 64, 10 U.S.C.. 864 La TR NTT EE ese. 28

Art. ia), 10 USS. 06)

Ast 66. 10 11S. 666 2. so nans Dy Bly BOy OZ

; 66(a), 10 U.S.C. 866(a). -..-....-.----------------- - §2

| "66(b), 10 U.S.C, 866(b) -..........,--------------- 28; 52

fe 66(c), 10 U.S.C. BG {e) bang neu tc aber wenn cece 40, 52

/ Art..67, 10 U.S.C. 867 \-2,.-2+---..-:-----2) 27, 28, 84, 42, 58

— -6T(a), 10 U.S.C. Cy AC) 15,483,538" *

y * 6T(b); 10 U.S.C. 867(b) 2-18, 438, BB

sO . 87(d); 10 U.S.C. 867(d) >... See eae | 3

mart, 0090-06 C600 0k ee oe

| MD USe i) os

\ Universal Military eta | and Service ‘Act of a

1900> GI Stat. 604 <6. ee $2

28.U.S.C.. 2241° Spesnene PETE Soy RO ne eee i 11

Air Force “Regulation. AFR: 35-24. (March 25,

~1969) _-.- en mein cmt eer 6 eres: es oe 33.

_ Army. Regulations: ; ah | > Ne

ABIES OO eee Eines eee 18.

AR 135-25 ita Si eee ir

AR 612-2 rr ata sR 1969) De gee ee ee a

40 ea

2, 3, 5, 33, 35, 48, 56

- para. 8b .........- ae ao Re eee eerste 3, 48

pire: 618) Pie eres ee eee . 20.

para. 6(d) -...... (eae Foote en 20

AR 635-20 (August 15, GIO) ee ee a Oe

_ AR 665.200 2, 9, 44, 58

Sy, ie Coast Guard. COMDTINST3p002_(October 7

OMe, |: (aetna al che re Ee TS eT

Department of Defense -Directive:

No. 1200.6 (August 21, 1962) . Ep ret i errs Oe 32

2 : o,

a Ras :

VII

Constitutioft=statutes and regulations—continued Coe Page 3

No. 1300.6 (May 10, 1968) AOE 2, 33, 47, 48, 54

para. IV(B) (1) 3 a-w-r---- 48, 54

para. IV(B) (2) ..... : ESO Pasar 48, 56°

- para. IV(B)(3) _..... eee cecal nleadaneateaiees 48, 55

‘para. VI(B) (2) 2 . ‘56

OI ee a Merete 56

Marine Corps Order MCO 1306. 16B. (June 18, .

\ > 1969) Saniesikc fie am sei eomsepalinii as aed eee sa

. Navy Department BUPERINST 1900-5 edead : Se

1968) . + =< pease eee enna olen t 33

Miscellaneous : a .

Barker, Military | Separate System of poe

ispradence, 36 U. Cin. L. Rev: 223 (1967) ....... 13

Bishop, Civilian Judges and Military Justice: Col. E .

latefal Review of Court Martial Convictions, 61 |

: Colum. .L. Rev. 40 (1961) ........... Stet ne Sh ote ae LD 42

° Dept. of Justice: Mem. No. 652 2... 19, 61-. aes

Warren, The Bill of Rights and the Miers, 31 ———

- - N.Y. ULL. Rev. 181 ORS - conseneesnsehamsieseenoccuscinnen 42:

aoe aoe »

I ‘ brissiome Court tof the Site States

OcTORBE TERM, 1971. 2

ei) ae NonOOl 7

Of, - JosePH PARisip PETITIONER |

3 mM oy ee

-Masor GENERAL PHILLIP B. Davison, ET AL.

- | oF . a

ON WRIT OF CERTIORARI 0 THE’ UNITED STATES

. COURT OF APPEALS FOR: THE NINTH CIRCUIT |”

s |

) mare FOR THE RESPONDENTS i

(OPINIONS BELOW ‘

ne eg

The opinion of the court: of appeals (App. 61-94) 3

“ is. reported. at: 435 F. 2d 299. The separate orders -

Of the district court: partially denying ‘a: preliminary

| injunction (App. 29-31) and staying further proceed- |

ings periding exhaustion of military judicial reme- -

eS dies Fed 52-55) are not reported... |

J URISDICTION .

oe ee eaeaett of the court of eppenie (App. 95-96)

_ was entered on- December 3, 1970. The petition for

. 1" Ann. ig er re are to the joint appendix on file: with

_ the Clerk of this Court. : \

(1)

. . 2

“a writ of certiorari was filed’ on March 4 1971; it

was granted on May 3, 1971 (App. 97; 402 U.S. 942).

| The jurisdiction of this Court rests on 28 U.S.C.

OS) cee

QUESTION PRESENTED -

Whether the , district court’ properly stayed this ~<.

habeas ‘corpus action, to review the Department. of _

'. -. .the ‘Army’s denial of petitioner’s conscientious ob-"

jector claim, until a ‘final adjudication of the claim

‘in -pending court-martial proceedings. 2

. STATUTES AND REGULATIONS INVOLVED

+ The pertinent portions of the Uniform : Code of

~ Military Justice (Arts. 66 and 67, 10 U.S.C. 866 and _

67); The All Writs Act (28 U.S.C. 1651(a)); rele-

vant portions of Department of Defense Directive "

No.: 1300.6; and relevant portions of Army Regula-_

pendix A, infra, at pp. 52-58. > ee

ee STATEMENT |

The essential facts are set forth in the margin of

the court of appeals’ opinion (App. 75-84, n. 1), and

are not here in. dispute. ae en

~ Petitioner was inducted into the Army as a draftee «

on August 22, 1968. Nine months later. he applied -

for discharge as a conscientious objector, claiming that

many of the doubts he had initially had about mili-:

tary service had developed through his Army experi-

ences into a firm. conviction that participation in any

Se *

paligay

‘Hons AR 635-20 and 635-200, are set forth in Ap- =

e’

i rooted in religious training, had become ‘fixed prior

to induction into the militawy,. ‘and, moreover, failed .:.

ition. &

Shortly thereafter, on November 28, 1969, he also, . :

eth Se ae ee

ee eg!

: form: of military activity conflicted ticgnosksiahil

\ with his” ‘Christian, beliefs." He was interviéwed by _

-\ the? fase. Chaplain, the base psychiatrist, a special

>.’ hearing -officer and his immediate supervisor, as re~

quired by Army Regulation AR 635-20;.and they all

attested. to petitioner’s- sincerity and. the religifus

‘content of his professed beliefs. In addition, the Com-

-manding General of petitioner’ s Army training cen-

ter and the Commander of the. Army. hospital, al-

‘though they conducted .no personal interview, recom- ,

* mended that. petitioner be discharged as a conscien- *

tious objector. Petitioner’s inimediate commanding i

officer” disagreed; he recommended disapproval of the —,

” applicatidn on the ground that. _ petitioner’ s beliefs ©

were “baggd on. essentially political, sociological, ° or

-philosophical views, or on a. merely personal sn

code. ” AR 635-20; ,para. 3b(3).° ye

In November 1969, the Department of the hae

-denied petitioner conscientious objector status on

grounds that his professed beliefs, although perhaps

to’ demonstrate that he was truly. opposed to partici- —

pation in all war. On November 24, 1969, petitioner

applied to the Army Board for Correction of Military

Records: for administrative review of that. determina- .

commenced: the present habeas corpus. proceeding in

the’ United States District Court for the Northern

District of California. -Clgiming - -that the’ Foone i oe

eS .

STD

: es : oie

“ ne

s <i sees 4 en op

. : , :

e «CO f «

denial of his conscientious objector application was

without basis in fact. He sought discharge from the .

Army, and requested a preliminary injunction to pre- ,

vent his transfer from @e. jurisdiction of the. district .

court and to prohibit fur er training: preparatory \ —

to being transferred to Vietnam, Following: a hear-.

te ging, the district court (Ap 29-31F° declined at that

time ‘to éntertain the Habeas ‘corpus petition, but it’

_etainéd jurisdiction of the case pending a decision

on petitioner’s conscientious objector application by

_ the Army Board, for Correction of Military ‘Records. | |

; The Army was: ordered -to refrain from requiring”

- petitioner to participate in activity or rons be-

ond his current noncombatant duties; ‘however, the

e. | istrict court refused to enjoin the Army “from trans- -

- ferring-petitioner outside the judicial district: —

On December 4, 1969, petitioner appealed that parts

of the. order denying .a stay-ef transfer; at about the

same’ time, he received orders to report, on December

31; 1969, to the Overseas Replacement Station at

Oakland, California. . This ‘was later changed to the.

_- United States jArmy Pers6nnel Center, Fort Lewis,>

. Washington. titioner then sought an. order staying

his’ deployment outside the court’s jurisdiction pend-

ing disposition of his appeal. The stay was denied

Appeals on December 10, 1969, on condigion that the -

_ Army praduce petitioner if the appeal should result

" sashis favor (App. 32-83). On December 29, ‘1969,

a similar application for stay was denied by Mr.

“Justice Douglas (App. 34-37; 396 U.S. 1288).

+ py-a two-judge panel of the Ninth Gircuit Court of

: Petitioner reported to his. duty station at Fort |

Lewis,- Washington, on December 31, 1969. At that’

time, he requested an opportunity. to file a second

application for discharge as a conscientious objector

‘and, as-required- under AR 635-20, he was given

”

seven days to complete/and. file such an application. i

On January 6, 1970, he informed the Personnel Cen-

"ter that he no longer wished to subntit the applica-

tion. He was then booked for transportation over-

. seas, where he was’ to perform noncombatant duties .

similar to those which had been. assigned to him and

- which,he had _performed in this country. He refused,

- however, to obey a. military order to board the’ plane

_ for Vietnam; As 4 result, petitioner was charged |

with violatién of Article 90 of the Uniform Code of .

; .-Military Justice, 10 U. S.C. 890,?.and was corifined to

the post stockade periding» disposition of the charge

against him.

On March 2, 1970, ffile the part ertial Ee

pending, the Arm ard for Correction of Military

Records notified petitioner that it had rejected his —

"application: for relief from the denial: of his conscien- ~

2'The provision OES in pecunert part that:

"Any person subject to this chapter who—

.@ 2 a ‘s

=(2) wilfully disobeys a lawful e a of his supérior

commissioned officer;

shall be punished, if thé offense is committed in time ae:

war, by death or such other punishment as a court-

martial may direct, and if the offense is committed at

any other time, by such punishment, other than death,

as a court-martial may direct.

Ste Cae

aa!

° i :

;

Sg MARS LG a I tte BOBS

a ee

, ? :

tious objector claim.’ The district ‘court, on March

6, 1970, issued an order to the Army,to show cause .

why petitioner’s pending writ of habeas corpus should

not now issue. On the government's motion’ (App.

45-50), the.district court, on March.31, 1970, entered

an-order staying consideration of petitioner’s habeas

corpus petition until final judgment in the military

courts on thé court-martial charges (App. 52-55).

Petitioner took an appeal from that order.’ . |

On April 8; 1970, the court-martial convicted. peti-

-tioner on the charge of refusing to obey a lawful

military order (App. 58-60). The military . judge

found ‘that the denial of ‘petitioner’s conscientious

claint had not been arbitrary,- capricious, unreason-

- able, or an ‘abuse of. discretion; he declined, however,

to apply. the “basis in fact” standard of review that |

would be applied on habeas corpus in a district court

(App. 89-91, n. 11). Petitioner is presently confined

- in the United States Army Disciplinary. Barracks, ©

Fort Leavenworth, Kansas, serving a s¢fitence of two

years at hard labor, with dishonorable discharge. His

appeal from the court-martial conviction is currently

‘pending before the Court of Military Review... _ -

3’ The letter, a copy of which was filed in the district court: ~~

| and has been reproduced “in Appendix B, infra,. pp. 59-60,

‘stated: “Following examination and consideration of your

Army records together with such facts as presented by you,

the Army Board for Correction of Military Records .on 11

February 1970 determined that insufficient evidence has been

presented to indicate| probable material error or injustice.”

+ At petitioner’s request, the district court, on March 17,

1970, dismissed the first interlocutory ‘appeal of that court’s

denial of a stay of transfer, initiated by petitioner on Decem-.

ber 4; 1969. Bee 2 ae : 7

—

Aatt es |

On’ December 3, | 1970, the court of appeals (App.

61-94) affirmed the ‘district court’s stay order. It

held that “[a] serviceman facing court-martial should.

. not be permitted habeas relief in a federal, éourt’ dur-

ing the pendency of his military trial and ‘appéllls

therefrom, except, perhaps, when it might appear

that. nb military tribunal to which he has ‘recourse is —

capable of granting an appropriate remedy” (App. |

71). Looking to the military judicial system, the

court found that/ petitioner could, and, indeed did,

-raise the denial of his conscientious objector claim as

a: defense to his court-martial ; if that defense ulti-

mately succeeds, the court suggested, the military -

courts had ample power under the All Writs Act, 28

U.S.C. 1651(a), to grant petitioner brea from.

the Army (App. 72-74, 94, n. 18).

; . SUMMARY or? "ARGUMENT

‘A. “The military constitutes a t anecialiced commu- |

‘nity governed by’ a: separate -discifiline from: that of |

the civilian.” Orloff v. Willoughby, 345 U. S. 83, 94: _

To maintain more rigid standards of order and con- |

7 trol within the. armed services, Congress, in. the exer-

cise of its War Powers, has constructed an autono--

mous military judicial system. ‘That system is no less

responsible to the Constitution and the laws of the

United States than its civilian counterpart. Conse-

strated a marked rehictance to intervene precipi-

tately in matters before military tribunals, either to

obyiate. exposure to court-martial or to ‘anticipate the

Pe quently, federal courts have traditionally demon- =

results of a court-martial. They have, instead, -in-

7 im

e. ° ; | a) : ae oe

\ | voked the doctrine of exhaustion of military remedies

oo in the interest of avoiding “[n]eedless friction” be-

Eg tween federal courts and the military system. Noyd

; v. Bond, 395 U.S. 683, 696. | mee

| - “IB. The court below properly applied the ‘exhaus-

| principle in the present case. At.the time that gn

| petitioner’s in-service conscientious objector applica- -

\ | tion had been processed through the Army’s adminis-

| trative cktthnels and ultimately denied by. the Army -

| Board for Correction of Military Records, petitioner

H was already facing court-martial eharges for refusal

| to obey, military orde¥s, the ‘military tribunal had

r , been convened and the trial itself was imminent.’ In ©

| these circumstances, .requiring him to exhaust avail-

i able judicial remedies’ within the Army would not

. force him “* * * to commit a*further military ‘crime’

| - in order to provide himself with a forum. He had

already done the act alleged to be unlawful” (App.

2 BB). oe a Ce ee

Just as in-a Selective Service context, “the exhaus- _

‘ ,

Fe TEIN RIO SITS

tion doctrine must be tailored to fit the peculiarities

SP. of the administrative system Congress has created”

-(McKart v. United States, 395. U.S. 185, 195), so too

in the present context, it must ‘be adapted to the

_-. special features of the internal review machinery that.

os has been set up for the military. Responsibility for

_ maintaining order and discipline. within the armed

“services has been vested by Congress in military tri-

bunals; it is not a function of the civil courts. Where,

as here, a serviceman ‘chooses, “with all attendant —

~ risks, to. disobey a military order to enplane for Viet-.

~ nam” (App. 63), the statutory: scheme calls for civil-

jan Fee to judicial review by ine ney which i |

- “has a proper’ concern in. keeping “its own house. in ©

_ order” (O'Callahan Vv. Parker, 395 US. - 258, 282; -

Harlan, J., dissenting). | e.5 8

C. Nor a we agree with petitioner’s assertion that =

the military tribunals to which he has recourse are ~

incapable of granting an appropriate remedy. ‘The

Court of. Military Appeals has recently held in United

States v. Noyd, 18 U.S.C.M.A. 483, 40°C.M.R. 195,

_ ‘that the administrative: denial of conscientious objec- ..

tor status can be challenged in court-martial proceed- _

ings for refusal to obey military orders similar to

those involved here."Phat decision, though not without _

its detractors on the highest military tribunal, re-

. mains inviolate today and is followed ‘by the lower —

+ military courts. Indged, petitioner’s court-martial-en-

-tertained his affirmative defense of wrongful denial of ——

discharge by_the-Seeretary, but decided against him —

~ on the merits. The argument, however, is still avail- —

E able to him,in the Court of Military Review. |

it petitioner _ should ultimately succeed with his ~

affirmative defense, the Secretary “has no practical ~

; alternative except to discharge [him].” United States

v. Stewart, 20 U.S.C.M.A. 272, 276, 43 C.M.R. 112,”

~116. In such circumstances, the Judge Advocate Gen- a

eral is required by regulation to follow the same pro- ~

cedures that apply when “[t]he discharge or release’

of an individual from the Army [is] ordered by a —

U.S. Court or judge thereof.” Army Regulation AR

635-200. Moreover, petitioner has an available rem-

edy by way of habeas corpus in the Court of Military .

' Appeals. That tribunal, established by Act of Con- -

‘

gress, has power ‘finder the All Writs ‘Act to grant

extraordinary relief in| cases, like the present one,

.. which are. subject to its. jurisdiction. Where a mili- © oo

‘ tary court over which the: Court of Military Appeals. ha,

, concededly has jurisdiction, or the Court of Military. ;

Appeals itself, determines that a serviceman was ~

- wrongfully denied discharge as a conscientious ob-

jector, there seems every reason to assume that the

highest military tribunal, although it has not yet been

_ ealled upon to do so, will entertain a habeas petition .

| seeking to effectuate that discharge as a legitimate

exercise: of: its “supervisory power over the adminis- —

‘tration of military justice.” Gale v. United ‘States,

17 U.S.C.M.A. 40, 42, 37 C.M.R. 304, 306. ./—

DD: Resort to these military tribunals does not fore-

- close civilian review; it merely delays co ideration.

by the federal courts until it becomes’ dear that a

final determination of the issues has been made within ~

the military , judicial system and a live controversy

still remains. If such delay seems unduly harsh to

- petitioner, that is the necessary consequence “of his.

own action. Had he bided his time for approximately

one ‘month, it appears now that he would have ob- - @

; tained the relief he sought from the district court.

: | Having deliberately elected, instead, to. defy a mili-

mm tary order to report for » “psychol@ical counseling”

duty in Vietnam, he is in no position’ to complain of -

the delay occasioned by permitting the military to

prosecute — him for such disobedience. Moreover, in

the present case, thedelay: of which petitioner com-

plains is substantially of his own making. Through |

no less than seven requests for “enlargement of time,”

eh cOdRtaAeaPoe a SGOT ELON! PRY AAI PT ALENT PRION PM RTE PTI TIT I

aw. .

a bi Meee

8 _ he has succeeded in bringing the proceedings in the

ae Court of, Military Review to. a grinding halt for a

. period of some. nine months. In these circumstances, —

. his pbjection to an application of the exhaustion doc-

trine on the ground of “unconscionable delay” is not

well taken. a. 0

ARGUMENT

eee

A SERVICEMA ULD BE DENIED ACCESS TO ;

THE_ ‘COURTS FOR EXTRAORDINARY RE-. ~—

-LIEF UNTIL FINAL DISPOSITION, OF HiS CLAIMS

ee ON RELATED ISSUES PENDING BEFORE: MILI. .

_ TARY TRIBUNALS ee

Ss A. The Civil Courts and the Military ‘

While the law. of habeas corpus generally: has ap-

plication in the context of prisoners’ seekiny: release

from incarceration under criminal convictions (e.g.,.

Fay v. Noia; ‘372 U.S. 391), “there are other re-

straints on a man’s liberty, restraints not shared by

the public generally, which have been thought suffi-

_- cient in the English-speaking world to support the «

issuance of habeas corpus.” Jones vo “Cunningham, —

371 U.S. 236, 240. Thus, the writ has long been ‘rec-

ognized as the- appropriate remedy — for servicemen , -

who claim to be unlawfully detained in the Armed

. Forces. See, ¢.g., Eagles v. Samuels, 329 U.S. 804,

312; Oestereich v. Selective Service Board, 393 U.S.

= 283, 235; Schlanger v. Seamans, 401 U.S. 487, 489.

5’ Such perséns are Siinigeted to be “in custody” as that.

term is used in 28 U.S.C. 2241, in the sense that they are sub- :

ject to military orders and control which act as a restraint on

their,freedom of movement} See Jones v. Cunningham, supra,

371 U.S. at 240; Ham v. Lenfest, 398 F. 2d 705, 710-712

(C.A. 2).-

a be

; e-

1. But “the scope of matters open for review” on ‘

_ inilitary habeas corpus applications is “more narrow” .

than when similar relief is sought by civilians. Burns

v. Wilson, 346 U.S. 187, 189. “The military consti-

tutes a specialized community governed by_a sepa- ‘

- rate discipline from that of the civilian. Orderly gov-

ernment requires that the judiciary be as scrupulous

- not-to interfere with legitimate Army matters’.as the

Army must be scrupulous not to intervene in: judicial _ 7

matters.” Orloff v. Willoughby, 345 U.S. 83, 94. é

| + Thus, in Burns this Court stated (346 U.S. at 142)

. that, “when a military [judicial] decision has-dealt ._

fully and fairly with an allegation raised in [the ha- —

“beas corpus] application, it is not open to a federal

eivil court to grant the writ simply to re-evaluate :

> the evidence.” See United States v. Augenblick, 393

U.S. 348, 351-352.’ And in Orloff, the Court .reaf-

“firmed the general*principle . (United States v. Elia-

son; 16 Pet. 291, 301-302; Reaves v. Ainsworth, 219

‘The “fully and fairly” test has generally Been interpreted ‘_ +.)

as confining collateral attacks on tourt-martial judgments to boat

questions of the court-martial’s jurisdiction over the person :

tried and the offense charged (see O’Callahan’v. Parker, 395 ©

U.S. 258; compare Relford v. Commandant, 401 U.S. 355), to

alleged denials of substantive due process which, although

perhaps raised, were not considered by the military tribunal,

and to claims that .the convicted serviceman was not afforded

all procedural safeguards necessary to a fair trial under mili-

tary law. Seé Gorko v. Commanding Officer, 314 F. 2d 858,

859 (C.A. 10) ; Kennedy v. Commandant, 377 F. 2d 339 (C.A.

10): Davies v. Clifford, 393 F. 2d 496 (C.A. 1); King v. Mose-

ley, 430 F. 24732 (C.A. 10); Swisher v. United States, 237

F. Supp. 921, 924-929 (W.D. Mo.), affirmed,\354 F. 2d 472, ~~

AT5 (C.A. 8); but see Kauffman v. Secretary of the Air Force,

415, F, 2d 991, 996-997 (C.A.‘D.C:): ioe, peed ot

| | 13 | |

US. 296, 306; Peco Lamb, 329 US. 539, 542)

that routine administrative determinations by the

military, such as-duty assignments or officers’ com- .

missions, are matters “not within. the power” (345

. _ U.S. at 93) of civil courts to review ‘by habeas corpus.

- See Brown v. McNamara, 387 F. 2d 150 A. 3),

- certiorari denied, 390 U.S. 1005. . —- ,’

This policy of judicial abstention in matters | ch-

_ ing on military affairs is rooted: in “the doctrine of

separation. of powers and the responsibility for na-'.

tional defense which the Constitution, Art I, §8, d..1

and Art. II; §2, places ‘upon the Congress and. the

President.” Hammond v. Leinfest, supra, 398 F. 2d |

at 710 (C.A. 2). As observed in Burns v. Wilson,

supra, 846. U.S. at 140, “*.* * Congress has taken

. great. care both to define the rights of those subject |

to military law, and provide. a complete system of .

review within the military system to secure those

rights.” * Within the confines of this statutory frame-

7 Military courts are legislative courts created by Congress .

under U.S. Const., Art. I, § 8; their jurisdiction is independent

of Article III judicig] power. Im re Vidal, 179 U.S. 126, 127;

Dynes Vv. Hoover, 20 How. 65, 79. See generally Barker, Mili-

tary Law—A. Separate System of JuFisprudence, 36 U. Cin.

L. Rev. 223 (1967). Following World War II, Congress, in “an

" effort to reform and modernize the system—from top to ‘bot-

tom” (Burns v. Wilson, supra, 346 U.S. at 141), extensively

revised the Articles of War (62 Stat. 627) and by the Act of

May 5, 1950, ch. 169, 64 Stat. 107, created thé Uniform Code of

Ras Military Justice. Under the new Code, a Court of Military Ap-

peals was created with automatic jurisdiction to review all

capital cases and discretionary jurisdiction over non-capital

cases. U.C.M.J., Art. 67(b), 10 U.S.C. 867(b). In 1968, the ;

Code was amended by’ the Military Justice Act ,(10 U.S.

(Supp. V) 819) to improve court-martial and ‘teview proced-

“ures. See discussion infra, pp. 42-44.

work, civil. courts. have traditionally exercised ‘no ’

power" of supervision or review. See In re, Grimley, ;

-137-US8. 147,.150.- Deference to military jurispru-

., dence is therefore. grounded on considerations of au-

tonomy, on judicial recognition that “the rights of

"men in the armed forces _must’ perforce be cordi-

. tioned to meet certain wverriding demands of disci-

pline and duty, and the civil courtS are not the agen

cies* which must determine the precise balance’ to ‘be

struck in this adjustment.” Burns v. Wilson, supra,

346 U.S. at 140. oe |

2. This is essentially the same rationale that sus- -

tains the exhaustion requirement in military habeas

corpus proceedings. Some twenty years ago, this

Court, in Gusik v. Schilder, 340 U.S. 428, declined to.

“tear a serviceman’s challenge to his court-martial

- conviction of murder on the ground that he had failed _

first to apply to the Judge Advocate General for a.

new trial.’ Analogizing the situation to a state. pris-

oner petitioning for federal relief, the Court stated

(340 YS. at 181182)6 5

| If the state procedure provides a remedy, which -

. though available, has not been exhausted, the fed-

8 This remedy was added to the Articles of War, Art. 53, 62

Stat. 639, 10 U.S.C. (1946 ed. Supp. IIT) 1525, after the:

district court had granted the petitioner’s writ of. habeas

corpus and ordered hirn released on bond. The court of appeals .

reversed (180 F. 2d 662 (G.A. 6) ) _on the ground that, Gusik

had failed to exhaust all his military remedies and this Court —

- affirmed, stating that the policy of non-interferencé prior fo

exhaustion “is as well served whether the remedy which is .

available was existent at the time resort was had to the fed- —

- eral courts of’was subsequently created * *-*.” 340° U.S. at

182... ° ee Bele See: ; oe

Oy,

-15

eral courts will ee inelone: $6.0 ‘The ae

underlyirig that rule ‘is as pertinent to the .col-

lateral. attack of military judgments as it is to

“collateral attack’ of judgments rendered in state |

courts: If an-available procedure has not been

- employed to rectify. the: alleged error which the

federal. court is asked to correct, any interfer-

ence by the federal court.may be wholly need-

‘less. .The procedure established to police the er-

rors of the tribunal: whose - ‘Judgment is chal-

is, any friction between the federal court and:

. the military or state tribunal is saved. * * *

Such a principle ‘of judicial administration jis in ©

no ‘sense ‘a suspension. ofthe writ of habeas

corpus. It is merely a> deferment of resort to

the writ until other corrective pesierE ae are.

shown to be futile. ,

To be sure, principles of federalism that discourage

"precipitous jadicial intervention in state proceedings

in. the interest of comity (see Fay v. Noia, 372 USS.

less, ‘Congress,. in the exercise of its power to: “make.

Rules for the Government and Regulation of the land

and ‘naval Forces” (U.S. Const., Art. I, §8,.cl. 14),

- has. ‘cliosen to entrust fe protection of the rights of

servicemen in the first instance to military tribunals,

‘with direct review to, a. Court ‘of. Military Appeals,

composed of disinterested civilian judges. 'U.C. M.J.,:

Axt;°67 (a) (1); 10 U.S.C. 867 (a) (1).: These military.

courts are no less responsible to the Constitution and*

Jenged . may be adequate for the occasion.. If it | i

~ 391, 418; Younger v*Harris, 401 U.S. 37, 43-45) do |.

_notcome into play when military .custody is chal- °

~ Jenged. Noyd v. Bond, 395 U.S.-683, 694. Neverthe-

laws of the a a than ime civilian counter-_ Reo

; / 16 .

parts (see Harmon v.- BAUcRer, 355 U.S. 579; Burns

v. Wilson, supra, 346 U.S. at 142)...

7 The. efficient functioning of our federal ‘legal. sys-

. fem thus suggests that civil courts. should: stay their,

. ‘hand: as Igng as there remain appropriate military °

channels to provide full and fair consideration of the

claims. See Beard v. Stahr, 370 US. 41; Doyle v.

- Koelbl, 434 F. 24-1014 (C.A. 5), certiorari denied,

402 U.S. 908; and ef. United States ex rel. Berry v.

Commanding General; 411 F.2d. 822 (C.A. 5).

Peet Wes military, no less. than. other “federal adminis-

-, ° . trative agencies (see, ¢.9., McGee v. United States,

+ 402 U.S. 479; compare McKart v.. United States, 395-

U.S. 185) should be allowed the opportunity to cor-

rect -errors—whether ‘they be administrative or ju-

dicial—through its own internal review processes. Cf.. ae

ee: Sohm v. Fowler, 365 F. 2d 915 (C.A.D.C.) ; McCurdy

q v. Zuckert, 359 F. 2d 491 (C.A. 5), certiorari denied

P } sub n@n. McCurdy v. Brown, 385 US.'903; Anderson

v. MacKenzie, 306 F. 2d 248 (C.4. 9); Michaelson v.

Herren, 242 F. 2d 693 (C.A. 2). In the absence of ©

any jurisdictional dispute,” it is plainly not the func-

tion of the federal judiciary to intervene precipitately «

in matters pending before military tribunals either

' to obviate exposure to court-martial or to anticipate

the results of a court-martial. See Wales v. Whitney,

- *The requirement of exhaustion of military remedies has

_ been relaxed by this Court where persons, unlike petityoner

in the instant case, are not in the service and contest ife on

~ derlying: jurisdiction of the military to apply military law to

them. See Toth v. Quarles, 350 U.S. 11; Reid v. Covert, 354

U.S. 1; McElroy v. Guagliardo, 361 U.S. 281. And cf. O’Cal-

lahan V. Parker, supra. See also n. 25 infra. ’.

oe : 17

114 U.87564; Gusik v. Schilder, supra. Indeed, “the

ever-present and . ‘urgent need for discipline in the

armed services” (Hammond v. Lenfest, supra, 398 F. .

2d at 710) is itself strong reason for civilian defer-

‘ence to this carefully constructed military court sys-

tem that Congress has created. Cf. Burns v. Wilson,

sidpra, 346 U.S. at 140. a

Federal courts have accordingly declined 1) ae .

tain habeas corpus applications of servicemen chal-

lenging either administrative (see, e.g., Beard v.

_ Stahr, 370 U.S. 41; Minasian v. Engle, 400. F. 2d

137 (CA, 9); Sohm - -v. ¥owler, supra) or. judicial

. (see, e.9., Gusik v. Schilder, 340 U.S.. 128; Noyd v.

Bond, 395 U.S. 683; In re Kelly, 401 F. 2d 211. (C.A.

5); Doyle v. Koelbl, supra) determinations by the

military while appropriate channels for review re--

main open withty the axmed services. Unlike Burns, :

Orloff, and their progeny, the focus of these decisions — |

is on the timeliness of judicial review by: civil courts, a

~ not on its ultimate. availability ; and the doctrine of

exhaustion of military remedies is invoked in the in-

terest of avoiding “[n] éedless friction” between féd-

eral courts and the military Belle ” Noyd v. Bond, -

395 U.S. 683; 696. ) : ? ‘

iB. Aeptving the Exhaustion Requirement i in the

Instant Case °

‘The question presented here does not fit comfort-

- ably into either the line of authorities requiring. ex-

haustion of military administrative remedies or those

decisions calling for exhaustion of military judicial

remedies. It falls, Instead; somewhere ,in between

;

‘

;

U.S.C. 1552(a). | |

and is in large measure obscured by the procedural

context in which it arises. —)

1. Prior to filing his habeas corpus application in -

the district court challenging the Army’s. administra-

‘tive denial of his conscientious objector claim, peti-

tioner elected to apply for review to the Army Board

for Correction of Military Records (“ABCMR”).”

‘The Army board, unlike its counterpart in the De-

| partment of the Navy (see Craycroft v: Ferrall, 408

F, 2d 587 (C.A. 9), vacated and remanded, 397 US.

335), does take cognizance of in-service conscientious

*_ objector claims (cf. Krieger v. Terry, 413 F. 2d 73

~(C.A. 9); Bratcher v. McNamara, 415 F. 2d 760

(C.A. 9)), and, as evidenced by the present case, re-

views the administrative record to ascertain if the de*

nial of the claim by ‘the Adjutant General is in any —

respect erroneous or unjust. See -n. 3. supra.”

. 10Tn 1946, Congress enacted legislation (60 Stat. 812, 837)

empowering the service secretaries, acting through boards of

civilian officers of their respectivegdepartments, to alter mili-

tary records when necessary to prevent injustice. . Legisla-

tive Reorganization Act § 207, amended, 70A Stat. 116, 10

U.S.C. (1952 ed., Supp: IV), 1552. Pursuant to. this legis-

lation, each service established a” board for correction of

military records, see e.g., Army Regulation AR 15-185; the

board’s function is, on application by a’ serviceman, to review -

the military record and intervene where it finds it necessary

to do so “to. correct an error or remove an injustice.” 10

11 Because the Board for the. Correction of Naval Recor’

does not take cognizance of conscientious objector claims,

‘’ government advised this Court in -Craycroft Vv. Ferrall, supra

(see Gov’t Mem., No, 718 Misc., October Term 1969, p. 5) that

it could not agree with the Ninth Circuit’s insistence that

Craycroft first ‘apply to the Navy correction board “[s]ince

the remedy envisaged by the court below would thus clearly

19°

Although the government at one » time ae the a

sition that recourse to ABCMR. was an available ad-

ministrative remedy within the military that had to

be exhausted before servicemen were entitled to resort. -

to th civilian courts. for extraordinary relief (see -

| Krieger. v. Terry, supra; Bratcher v. McNamara,

supra; compare United States ex rel, Brooks v. Clif-

ford, 409 F. 2d 700,701 (C. A. 4), it is now the policy

of the Department of Justice, as set forth in Mem. —

No. 652 which appears in Appendix C, infra, at pp.

61-62, to treat the action taken by the Adjutant Gen-—

eral as the final administrative. determination that is

“ripe fo judicial review” (Appendix C, infra, p. 61).

_ We do not believe, howéver, that this new policy

precludes a district. court from electing to defer con-—

. sideration of the factual basis for denial of an in-

service conscientious objector claim where the identi-

cal question is already pending before the. adminis- -

trative correction board at the. time that the habeas

corpus petition is filed. Nor has petitioner raised any

| objection to such a procedure. a It is well recognized

have been futile.” This Court vacated ‘the judgme and, re-

manded the cause to the Ninth Circuit (397 U.S. 335), noting

especially the Solicitor General’s concession that “the admin-

istrative remedies * * * have. either been’ exhaustec or are:

nonexistent.” .

2 Petitioner initially ‘took an appeal only from _ district

court’s denial of his request for an injunction against

1. +h.

peal was dismissed by the Ninth Circuit on petitioner’s re

quest. .In the, subsequent appeal from the district court’s

order staying further proceedings, petitioner did not contest —

the earlier stay pending a decision by the Army ‘correction

board, and he has not done so before this Court.

that application of the rule of exhaustion of adminis-

trative remedies requires the exercise of judicial. dis-

cretion. See United States v. Abilene. & So: Ry. Co.,

265 U.S. 274, 282. That discretionary power has not

- been,abused, in our viewwhere its exercise merely .

results in a postponement of judicial review until it

is known whether petitioner’s recourse to “competent”

administrative channels (Parisi v. Davidson, 396 U.S.

1233, 1234 (opinion of Douglas, J.)) will moot the

controversy." Moreover, in the instant ease the dis-

trict court (App. 30); having decided to “retain jur-

isdiction * * * until decision * * * by the [Army cor-

rection board],”- took the additional precaution of

ordering that petitioner not be assigned in. the in- .

terim “to any duties which require materially greater.

_ participation. in combat activities or combat training

than is required in his present duties.” ** In these cir-

cumstances, we think that the court cannot be faulted

. 43 This is not a case in which an application of the exhaus-

tion. doctrine would foreclose all access to the federal courts.

In. such situations, this Court has indicated, in the context of

‘a state prisoner seeking habeas corpus relief in federal courts,

that judicial discretion should be more narrowly defined to _

permit its exercise only where it is clear that there has been

a “deliberate by-passing of state procedures.”. Fay v. Noia,

supra, 372°U.S. at 439. aa

4 Army Regulation AR 635-20, paras. 6(a) and (d), re-

quires assignment of servicemen claiming conscientious objec-

tor status.to “duties providing the minimum practical eonflict

“41 4hate accerted beliefs” pending a final decision on their

provides that they may “be assigned to any autie:

quired to participate in any type of training” even t!

they seek further review by the Army Board for Correction

of Military Records. Appendix A, infra, p. 57.

- oe its initial refusal to entertain petitioner's, habeas

application. .

'. 2.° Not long after’this ee by the district

court, but over a month before ABCMR rendered its

decision, petitioner received orders to report to a West

Coast departure station for assignment to noncombat-

ant military service in Vietnam (supra, p..4). On

his ensuing applications ‘for a stay of deployment, e

these orders came under the close scrutiny of two .

Ninth Circuit judges (App. 32-83) and Mr. Justice ©

Douglas (App. 34-37), respectively; in each instance,

‘they were upheld. -As Mr, Justice “SS am pointed

out (App. 36-37; 396 U.S. at 1234):

Applicant i is at present pained to duties of

“psychological counseling.’”? It would seem off-.

hand that “psychological counseling” in Vietnam

would .be no différent from “psychological coun-

seling” in army posts here. He would, of course, |

_ be closer to the combat zones than he is at home;

and he says that he could end up az ying com-

bat weapons, =~ Ss

I heretofore granted like stays * * * * involving

' deployment of alleged conscientious objectors to —

Vietnam. * * * But this case js different because |

of the protective orders issued by the District

Court and the assurance given the Court of Ap-: -

peals that the applicant will be delivered in. the

- Northern District if he wins his habeas corpus

case, * * *

“wilfully disobey[ing] a lawful command of his su-

perior commissioned officer” (U.C.M.J., 10 U.S.C.

890) and confined to the post stockade

| gS BB

Approximately one month later, ' ABCMR ‘upheld

the denial of petitioner’s conscientious objector claim

(see A. 3 supra) and thus. eliminated the prior bar to.

" habeas corpus; the district court then issued its show

cause Order as to why it ‘shouid-net-entertain the ap-

plication for extraordinary. relief. But, as noted by

thecourt below (App. 67-68), “charges had then al-._

ready been filed against Parisi by the military autho-

rities, the tribunal that was to judge him had already

been convened, and the trial itself was imminent.”

3. In light of this turn of events, the issue now

- before the. Court is not, as petitioner would have us”

believe, identical to the question that confronted. the.

Second Circuit in Hammond v. Lenfest, 398 F. 2d

705 (C.A. 2). There, at the time that the service-

man’s conscientious objector claim was denied by the. ~

final administrative authority (the Chief of the Bu-

reau of Naval Personnel), no court-martial charges.

were pending.’® The court of appeals, carefully limit-

| 15 Ag already noted (supra, n. 11), the Board for Correc-

tion of Navy Records does not take cognizance of in-service

conscientious objector claims. ,

16 This was also the situation in Crane Vv. Hedrick, 284 F.

Supp. 250 (N.D. Cal), and Talford v. Seaman, 306 F. Supp.

“, 941 (D. Md.), two cases on which petitioner places heavy reli-

. ance. In Crane, although the applicant had jumped ship prior

‘to filing his habeas corpus ‘application, the Navy declined to

prefer court-martial charges against him (284 F. Supp. at’ _

251, 252-253). In Talford, the applicant was similarly subject ~

‘to court-martial, but the Army decided not to press charges —

against him until after the civil court had disposed of his

request for extraordinary relief, and, if he prevailed in the

- district court, to abandon court-martial proceedings alto-. —-

gether (306 F. Supp. at 944). :

ing its holding to “the precise contentions and factual

situation presented” (398 F. 2d.at 710), rejected the

argument that in, such circumstances Hammond’s

claims were not ripe for judicial review because he

could still diso opay a lawful military order and raise

his claims as a defense to the ensuing court-martial.

Compare Noyd v. McNamara, 378 F: 2d 538 (C.A..

10). To “require that Hammond await the outcome

ofa yet to be convened ‘court martial before’ petition-

ing for a writ of habeas corpus” (398 F. 2d at 713),

and thus force him to “risk * * * the imposition of ad-

ditional sanctions” (398 F. 2d at.714). was, in the.

-court’s view, too harsh a condition to juflicial review

of ‘a final administrative determination by the mili-

tary with respect to conscientious objector status.

Moreover, as the- Second Circuit pointed out, Ham-

-mong-was without “power to convene the court mar-

tial that is supposedly to judge him” (ibid.) ; accord-

ingly, compelling him to await such further enforc- -

_ing procedure as the agency might or might not choose

to initiate offered no ‘real remedy.” And see Crane v.

Hedrick, supra; Talford v. Seaman, supra.

7 Hammond could not, at that time, have initiated’ habeas a

corpus proceedings in the Court of Military Appeals to test

the lawfulness of the Secretary’s action. Under the All Writs

Act, 28 U.S.C. 1651, that court is empowered to grarit extra-

ordinary relief only in appropriate cases that fall within its

Article 67 jurisdiction (see pp. 42; 45, infra). Accordingly,

before the Court of Military Appeals could have properly

entertained . a habeas corpus application in Hammond’s case,

the issue of wrongful-denial-of-discharge would first have had

to be litigated in court-martial proceeding for disobedience

of military orders, and the decision reviewed by the Court of .

Military Review. See Mueller v. Brown, 18 U.S.C.M.A. 534, -

40.C.M.R. 246.

ae 24

In response to Hammond, the Department of Jus-

tice has abandoned the position it took in that case

- and in Noyd v. McNamara, supra. Following the

lead of the Second Circuit, it now supports review by

the civil courts in comparable situations: “If court-

martial charges have not been preferred, a service- _

man need not commit an offense and: exhaust military :

judicial ‘remedies as a prerequisite to relief by way

of habeas corpus proceedings in the District Courts.”

See Appendix C, infra, p. 61." ore

But the instant case does not: fit that. category.

Here, as earlier indicated, by the time ABCMR

had decided that petitioner was not entitled to con-

- geientious objector status, and thus eliminated the

prior bar to habeas corpus, court-martial gharges

_had already’ been preferred.. An application of the ex-

haustion principle in these circumstances would there-

fore not require petitioner “* * * to commit a fur-

¥’We ‘first informed the Court of this new ‘policy in pur

memorandum ia Craycroft v.\Ferrall, No. 718 Misc., October

Term, 1969, certiorari granted’ and cause remanded to the.

Ninth Circuit, 397 U.S. 335. More recently, we took the same

position in Polsky V. Wetherhill, No: 1656, October Term,

1970, certiorari granted and cause remanded to the Tenth

Circuit for consideration on merits, 403 U.S. 916. In Polsky,

the Tenth Circuit sitting en bane, despite the fact that the

government, had intentionally acquiesced in habeas corpus

jurisdiction, decided sua.sponte, to adhere to its earlier ruling

“in Noyd Vv. McNamara, supra, by ‘requiring exhaustion of not

yet convened court-martial proceedings as a condition to its

consideration of Polsky’s conscientious objector claim. We >

disagreed with that determination and recommended that

the case be remanded for consideration or the merits of

Polsky’s claim (Memorandim for the United States, No.

1656, October Term, 1970).

ther military ‘ crime’ ‘in. order to provide himself with

a forum. He had already done. the act alleged to be

unlawful” (App. 68).. Whatever the ‘risk Ot <5 >) >

_ imposition of additional sanctions” (Hammond vy. Len- -

fest, 398 F:-2d at 714), petitioner has already under-

taken. that risk by failing to comply with a military

order, Having traversed that route, and military ju-

‘dicial proceedings being commenced; before a final

administrative ruling on his. conscientious objector

application, it was, we think . (see Appendix C, infra,

. p. 61), incumbent upon him to. exhaust his military

judicial remedies before gaining access to the civilian

courts by way of habeas corpus See Gusik v. Schilder,

340 U.S. 128; Noyd v. Bond, 895 U.S. 683; and ¢f.

Hammond v. Lenfest, supra, 398 F. 2d at 713, *° And,

. context have so held.” mee In re Kelley, 401 F. ae

._ indeed, the: only two circuit courts that have: yet had ~

occasion to rule on the exhaustion question in this .

19 Following Hammond? the Second Circuit was presented re

with the question that is now before the Court in this case

in United States ex rel. Mankiewicz v. Ray, 399 F. 2d 900

(C.A. 2); but found it unnecessary to decide the issue. As

pointed out by J udge Friendly, concurring (399 F. 2d at 902),

Hammond has not yet been extended “to a case wheré a court-

martial had already been convened and there was no adequate

tele that it would not consider Mankiewicz’ defense.”

°° The two district court decisions that. seemingly take a

contrary view are Gann v. Wilson, 289 F.. Supp. 191 (N. D.

Cal.) and:Cooper v. Barker, 291 F. Supp. 952 (D. Md.), both -

‘cited by petitioner. Those cases, however, each involved the

situation where an already convened court-martial was trying

the serviceman for disobeying an order to wear his uniform;

as to that. offense, the contention that the. Secretary’ s-

‘administrative denial of conscientious objector —— was

. Z 26 i - <a ; .

211 (C.A. 5); Locks v. Laird, 441 F.2d 479. (CA.

ee ome - ee

4. The reason for such a rule is admittedly not

grounded on. the. same consideration that this Court’

viewed as “pivotal” in a separate context in McGee

v. United States, 402 U.S. 479:.i.e,, to allow the ad-

~ ministrative’ agency “to make a factual record, or

- to exercise its discretion or apply its expertise” 402

‘US. at 485. Compare McKart v.: United States, 395 —

‘US. 185.” Plainly, judicial review: of the factual

~/pasis for the Army’s denial of petitioner’s conscien-

_|tious objector claim does not require an interpreta--

> without basis in fact is concededly no defense (see: Coombs V.

—- Commanding General, W.D. La., Civ. No. 16,573, decided

— August 21, 1971, slip’ op. p..2; and see infra p. 35 n. 34) ..Con-

sequently, the court-martial proceedings offered no oppor-

: tunity for further consideration within the military of the ~

_ @laims raised in ‘the habeas corpus applications; the district

courts’ refusal to Gann and Cooper to require exhaustion of

pending judicial remedies in such circumstances was proper. |

Cf. Wolff v. Selective Service, 372 F..2d 817, 825 (C.A. 2).

Here, by contrast, the claim raised in the habeas corpus appli-

‘cation is considered an available defense to the court-martial

charge of refusal to obey an order of deployment to Vietnam. :

_ See discussion infra, pp. 32-38.

| 21 Qnly one of the four petitioners ‘in Locks.'was facing.

a _ egurt-martial. proceedings at the timé that the habeas corpus

- application was filed. As.to that petitioner, we are of the view

that the Ninth Circuit’s application ‘of the exhaustion doc-

trine was correct. The other three petitioners in that case —

stood on a different footing, however. Whether or not it was

proper also to defer consideration of. their identfcal claims

because “a declaratory judgment of unconstitutionality would —

for gl aes purposes terminate the criminal case against” |

- the éfe who had failed to exhaust (441 F. 2d at 480), is a

question we need not. reach at this time.

tion of “extremely technical provisions of the Uni- |

form Code which have fo, analogs in civilian juris- ..

. “ prudence” (Noyd v. Bond, supra, 395 U.S. at 696).

- The underlying rationale rests, instead, on other —

considerations which, we submit, require “civilian: :

deference to military tribunals in the ciréumstances oe

of this case. :

‘Those in the armed services are necessarily’ sub- -

ject.to stricter standards of discipline and duty than |

are civilians. _ See. generally Burns*v. Wilson, supra,

346._U.S. at 140 Orloff v. Willoughby, 345 US.. at.

_/ 96; ‘Reid v. Covert, supra, 354 U.S. at. 38-89. Long —

' ago, our Founding Fathers granted to the Congress

“authority to regulate the armed forces in érder to.”

enforce obedience by members of the military estab-, |

lishment. to military ‘regulation during their service

to the end that order may be ensured.” Toth v.

Quarles, supra, 350 U.S. at 31 (Reed, J., dissent--

ing).” Pursuant thereto, Congress has devised a

separate, autonomous military. judicial system (see

n. 7 supra) to maintain. control, morale and disci-

pline. See U.C.M.J., Arts. 16-21, 65, 66,.67, 10

U.S.C. 816-821, 865, 866, 867. As this Court de- -

clared in .Toth (350. U.S. at 22): “Court-martial

jurisdiction sprang from the belief that within ‘the

wilitary ranks there is-need for a prompt, ready-at--

hand means of compelling obedience ‘and order.”

After trial by court-martial, review is available in

38 In addition to its power “Tg raise’ and support Armies”

and “To provide and maintain a Navy” (Art. I, Sec. 8, cls. 12

and 13), Congress is expressly given power “To make’ Rules

‘for the Government and Regulation of the land and naval

Forces” (id. at hese

most cases by a court of. Military Review, ence ae

of a panel of three military judges (see U.C.MJ., . 0 “=

Art. 66, 10 U.S.C. 866). And, “[w]hen, after the

second World War, Congress became convinced of the

. need to assure direct civilian review over military

justice, it deliberately chose to. confide this power to

‘a specialized Court of Military Appeals, .so that dis-

__interested civilian. judges could gain over. time a ful-

- ly developed understanding of the distinctive po

lenis and -legal traditions of the Armed Forces.”

- Noyd v. Bond, supra, 395 U.S. at 694.™

Just*as in. a Selective Service context “the exhaus-

tion doctrine must be tailored to fit the peculiarities

| of the administrative - system . Congress has created”

iN (McKart v. United States, 395 U.S. at 195), so too

. in the present context, it must be adapted to the

.. Special features of this internal review machinery

- &

e Court of Military Recew: the members of which

ie must be: admitted to the bar of a federal court or the highest

court of a state, is empowered to review all court-martials

. _in which the sem ce “affects a general or flag officer, or

cae extends to death, atone a commissioned officer, cadet

. or midshipman, -dishonora or bad-conduct discharge, or

- confinement. for one year or more. ” U.C.M.J.; Art. 66(b)

10 U.S.C. 866(b). Prior to review. of such’ court-martials,

“the sentence must have been approved by the convening

authority, -with the advice of thé staff judge advocate

(U.C.M.J., Arts. 64, 65(a), 10 U.S.C. 864, 865(a)). ‘The

record is then sent to The Judge Advoeate General who réfers |

it to the Court of Military Review if ‘the sentence is within

the jurisdiction of that body. . See U.C.M.J., ‘Art. 66(b), 10 -

“U.S.C. 866 (b). :

> 4 See U.C.M.J.,. ‘Art. 67, 10 Che 867. And see discussion |

a infra, PP. 42-45. ‘

“$9

e that has been set up for the military. Responsibility

for maintaining order and discipline within the arm-

ed services has been vested by Congress-in military

tribunals; it is not a function of the civil courts.

Where, as here, a serviceman chooses, “with all at-

tendant risks, to disobey a military order to enplane

for Vietnam” (App.:'63), the statutory scheme calls

for civilian deference to judicial review by. the agen-

cy which “has a proper concern in keeping its own

house in order” (O’Callahan v. Parker, supra, 395

U.S. at 282; Harlan, J., dissenting).

Whether or not petitioner’ s wilful disobedience of.

a » lawful order of deployment (see:p. 21 supra) can -

be justified on grounds of -wrongful denial by the

Army of conscientious objector status is, accordingly,

a matter to be considered: and resolved in the first in-

Stance by the military.” Perhaps the various tri-

25 The present situation is to be distinguished from those

cases involving servicemen.who have been denied conscientious

objector status by the Selective Service System, and who then

submit to induction and immediately file a petition for habeas

- corpus to test the legality of induction. See Eagles v. Samuels,

329 U.S..304; Oestereich v. Selective Service Board, 393 U.S.

233, 235-236 n. 5. In such cases, the claim is that the mili-

tary has no authority:over the applicant due to an error by

the civilian agency; recourse to the military courts is thus.

- not required (supra n. 9). Here, by contrast, the assertion

-is that the military authorities—who concededly have’ juris-

diction over petitioner—erred in their application of military

law. That is properly a question to be resolved in the first

' instance by the tribunals: established exclusively to rule on

military. matters—especially where, as here, the issue is

’ “already pending before the military courts at the time that

petitioner has finally exhausted his — administrative ee

“remedies.

ee 30

bunals within the armed services can. bring

er expertise to the question of the validity

tioner’s claim than can the civil courts, bu'

they are no less competent to pass on the

basis for the administrative refusal of dis

‘Compare McKart v. United States, supra, 3!

at 198-199; and see Wills v. United States,

2d 948, 945 (C.A. 9), certiorari denied, 3:

_ 908: Wolff v. Selective Service, supra, 372 |

-825.% Permitting them first to do. so does

_ 2 Petitioner contends that the Army’s denial of

scientious objector claim presents an issue “of ¢

with: constitutional due process standards by the

(Pet. Br. 47, n. 15) ;. he suggests that because he h:

his claim in constitutional terms; civilian courts ma)

immediately, fnder the authority of Dombrowski \

380 U.S. 479, and succeeding cases, without regard to the

-petence of the military tribunals to pass on the question. But

Dombrowski involved federal intervention in state prosecu-

tions brought in bad faith under an overly-broad state statute.

regulating free expression. ‘Because the’ activity challenged

there hada “chilling effect” on First Amendment frgedoms

_ (380 U.S: at 486-487), and also inyolved harassing

‘that were conducted by state officials in bad faith (Bounger .

vy. Harris; 401 U.S. 37, 50), the federal courts intervened. ~

Here, by contrast, we are concerned neither with an asserted ~

chill on First Amendment rights, nor with any evidence that

the Army has acted. in, bad faith (see p. 21 supra). See

- Locks Vv. Laird, supra, 441 F. 2d at 480-481. The analogy to

Dombrowski and related cases is, therefore, imperfect.

Whether petitioner challenges the Arm\’s refusal to discharge

him in terms of violating constitutional due process or, alter-

natively, as in conflict with its own régulations, the issue pre-

sented here is in the final analysis simply whether ‘the denial

of petitioner’s conscientious‘ objector claim is without factual

basis. Resolution of that essentially fact-question (see McGee

v. United States, supra, 402 U.S. at 486) is well within the

competence of the military tribunals. — |

See Beard v. Stahr, 370 U.S. 41; In re Kelly, supra.

_ And cf. Craycroft vy. Ferrall, supra, 408 F. 2d at

596. ae

ober

‘

2* A serviceman who elects to. disobey the orders of his- 4

commanding officer’ on grounds ef conscientious objection |

should: not thereafter be permitted to delay, and perhaps |

avoid, court-martial proceedings by presenting his claim to.

the civilian. courts by way of habeas corpus. As pointed aut

by the court below (App. 70-71): “While Parisi may honestly

have disagreed [with his redeployment orders], that ‘disagree-

. ment’ cannot be held to have justified his unilateral deter-

: mination to defy his military superiors, not to mention the .

e federal judges who had considered. and rejected his claim. \

: Were every soldier dissatisfied with some phase of national

- policy or military effort allowed to exercise similar discre-

’ tion, . necessary. military discipline would oe “

of exemption from combatant training and Servict

for civilians conscientiously opposed to participation

in war in any form,” no provision for discharge from

the military of the in-service conscientious objector -

existed until 1962. In that year, a change in mili-

tary regulations® permitted servicemen, whose op-

28 See, e.g., Selective Service Draft Law of 1917, 40 Stat.

- 76, 78; Selective Training and Service Act of 1940, 54 Stat. .

885, 889; Universal Military Training and Service Act of 1948,

62-Stat. 604; Military Selective Service Act of 1967, 81 Stat.

100, 104. .

22 Department of Defense (DOD). Directive No. 1200.6

(August 21, 1962) was issued by the Secretary of Defense

pursuant to his authority in 10 U.S.C. 133. Its purpose was

stated ds providing “uniform procedures for the ultilization

of conscientious objéctors in the Armed Forces and consid-

eration. of requests for discharge on the grounds:of conscien-

tious objection.” The directive was replaced by DOD Directive

ete

regulations which provided for an elaborate administrative

review machinery of conscientious objector applications. The

applicant: is to be interviewed separately by a chaplain and

psychiatrist (or medical officer), and each is ,to prepare a

written report of the interview. He is also afforded an oppor-

_tunity to appear before a hearing officer knowledgeable in

‘policies and procedures relating’ to conscientious objector

‘methods. The applicant’s file is then forwarded to Depart- .

mental headquarters and reviewed by a special Conscientious

' Objector. Review Board. See generally Army Regulation

AR.635-20 (January 1, 1970); Navy Department BUPERINST

1900-5 (July 18, 1968); Air Force Regulation AFR: 35-24

(March 25, 1969) ; Marine Corps Order MCO 1306.16B (June

18, 1969) ;. Coast Guard COMDTINST ‘1900.2 (October ‘6

1968).

as Compare, e.g.,; United States V. Dunn, 38 C.M:R. 917,

‘and United States v. Taylor, 37 C.M:R. 547—-considering the

defense to be unavailable—with, e.g., United States v. Quirk, .

39 C.M.R. 528, and United States v. Sigmon, C.M. 416,356

(decided January 2, 1968) —recognizing such a defense.

. 84.

C.M.R. 195, and explicitly recognized the claim of

wrongful administrative-refusal-of-discharge as an 7”

available defense. Noyd iwvolved an officer in the

Air Force who, after being denied conscientious {ob- _

jector status, refused’ to obey an order to instruct

student pilots how to fly an F-100 aircraft, “a fight- _

er plane used in Vietnam by the Air Force” (18 .

U.S.CM.A. at 486, 40 C.M.R. at 198). Then Chief

Judge Quinn, in an opinion coneurred in by Judges

Darden and Fergusen,” stated (18 U.S.C.M.A. at

492, 40 C.M.R. at 204): a. :

Obviously mindful of the conflict between the .. |

needs of the service and the plight of the con-

scientioug objector, the regulation directs that,

pending consideration of an application by the

Secretary, the conscientious objector be assigned _

_ duties providing ‘minimum conflict with his pro-

- fessed beliefs’ * * * Colonel Hansen testified he

gave the accused the order to fly an F-100_ in-.

structor only after he had been informed the

application for separation had been denied. The

validity of the order, therefore, depended upon

the validity of the Secretary’s decision. * * * If

the Secretary’s ‘decision was illegal, the order .

it generated was also illegal. * * * |

- On this reasoning, an attack on the lawfulness of

the Secrétary’s action can now properly be enter-

tained in court-martial proceedings, either on the —

s: These three judges have been appointed to the Court of

Military Appeals for terms of fifteen years, respectively. See.

U.C.MJ., Art. 67, 10 U.S.C. 867. Senior Judge Ferguson's

term recently expired and he is presently sitting until a new

judge is appointed.” a ;

35 ?

ground that it is without factual basis, or that it is -

premised on-an erroneous legal standard, or that it

‘involves a matter outside the scope of the. Secre-

tary’ s authority. See United States. v. Goguen, No.

421,998 (A.C.M.R., September 2, 1970), a copy of

which is annexed hereto as Sd D, ee Pp.

63-81.

It: has been ae clear, however, that Noyd is not

of unlimited scope. WKere the legality of the ques-

tioned military order remains unaffected by the law=

fulness of the administrative refusal of discharge—

as where a soldier disobeys an order to wear his

uniform—the Noyd defense is unavailable. See -

United States v.. Wilson, 19 U.S.C.M.A. 100, 41

C.M.R.: 100; United States v. Goguen, supra, at Ap-

- pendix D infra, pp.. 16-77. Met can. the claim of -

—— nie was subsequently reversed and the charges dis-

- missed by the Court of Military. Appeals (20 U.S.C.M.A. 527,

43 C. M.R: 367) on the ground that Goguen had been released

from the custod¥.of the Army pursuant to an order of dis- -

charge by-the United States District Court for the District |

of New Jersey (Goguen Vv. Clifford, 304 F. Supp. 958).

** The: military has put those claiming an in-service con-

. Scientious ‘objection on notice: that they need not perform

“duty assignments” directly in conflict: with their - asserted

beliefs while their applications for discharge are being proc-

essed through administrative channels. AR 635-20. Thus, °

the refusal to obey a specific “duty assignment” which is

deemed to present such a.conflict—whether it be to fly as an’ -

_F-100 instructor or to report for noncombatant duty in Viet-

nam—can, consistent with announced military policy, be ex-

.cved on a showing of wrongful denial of conscientious ob-

jector status. But, as a practical matter, the military cannot

permit servicemen claiming discharge because of opposition

_ to war to ignore with impunity the more general obligations

of military life, such as wearing a uniform. While this require-

conscientious objection be raised in the military tri-

bunals where no application for discharge has yet

been processed through the appropriate administra-

tive channels. Unitéd States v. Avila, 41 C.M.R.

654; United States v. Kent, supra, 40 C.MR. at 405-

- 406. And the military courts have refused to enter-

tain the claim of ‘wrongful refusal on a preliminary |

application to stay. court-martial proceedings, leav-

ing the question to be resolved at the court-martial.

Lee v. Peterson, 18 U.S.C.M.A. 545, 40 C.M.R. 257.

The instant case, however, does not fall within the

Wilson, Avila or Peterson exceptions; itis in all: *

material respects, essentially indistinguishable from

United States v. Noyd, supra. Petitioner does not

dispute this; instead, he points to the recent decision .

by the Court of Military Appeals in United States v.

ment might conceivably, to some, be as repugnant to conscience ,

’ asa specific duty assignment, the orderly functioning of the

. military necessitates compliance with such orders until actual

ira from military service. As stated in Goguen: (Appendix

D, infra, p. 76): “Obviously, it’ is impracticable in the

military ‘environment to permit the applicant to cast off his

uniform.” The claim of conscientious objection is, therefore,

no defense to disobedience of a genera] order to wear a

military uniform; the overriding need for discipline and con- .

trol within military ranks puts such orders on a different .

- footing from the order to report to a new duty assignment, -

such as was involved in Noyd and is involved here. See United

States v. Stewart, 20 U.S.C.M.A. 272, 277, 43 C.M.R. 112,

119 (Quinn, C.J., concurring in part) ; cf. United. States v.

Kent, supra, 40 C. M:R. 404, 406; review denied, 39 C.M.R..

293. Even if petitioner had prevailed .on his’ claim, he would

have been required to wear his uniform during the -short.

period of time that it would have taken the military to process |

his application for discharge; but the Army could not give

a new duty assignment to someone found by the military to be

entitled to discharge.

Stewart, 20 U.S.C.M.A. 272, 43 C.M.R. 112, as cast-

ing doubt on the continuing vitality of Noyd. Judge

Dardin (now Chief Judge) wrote the opinion of the. t

court in Stewart, and he appears to have adopted the

view that Noyd-should be limited to the situation

where there exists a “conflict between an order given

the accused while his [conscientious objector] -appli-

| cation [is] pending [before military administrative

channels] and the regulatory provision prohibiting »

the accused’s assignment to duties inconsistent with

his professed beliefs’ (20 U.S.C.M.A. 276 n..1). —

Even within these limits, it would seem that Noyd -

requires that petitioner’s court-martial entertain the

claimed defense in the present circumstances.™

We need not speculate about the effect of Judge

Dardin’s opinion on the instant case, however. - Sig-

nificantly, the other two members of the court ex-

" ’ pressly deélined to follow his lead in this regard and

reaffirmed the_b broader position they took in Noyd. .

Then Chief Judge Quinn declared (20 U.S.C. M. A. at

277, 48 C.M.R. at 117):

I disagreé. with the repudiation of United

States v.-Noyd * * *, In my opinion an order

by a subordinate military authority, which has

its origin in, and takes its content from, an il-

legal" action by a service Secretary is not a law-.. |

‘36 Petitioner’ ‘3 pea is that his order of dearer to -

_ Vietnam, issued while his application was ‘before the ABCMR, | ;

is in direct conflict with the regulation. Whatever the merit

to that: contention—and we think there is little (see n. 14

supra) —it is essentially no different from the claim involved

in N oyd.

ful: order, yon es be the feendation for a

charge of disobedience of a “lawful command”

s 8 e. es ; -

Because he eonciuied that the ‘court-martial pro-

ceeding in Stewart, involved only the disobedience of '

an order to’ wear a military uniform,” he was able to

concur in the result. reached by Judge Dardin—.e.,

that the lawfulnes of the Secretary’s denial of dis-

charge was not a question to be considered in assess-

_ ing the validity of this type of military order. See

United States. v. Goguen,. supra; and see n. 34 supra.

Judge Fer guson, however, disagreed with the Chief -

Judge on this ‘point, and, because he read the order |

as one of deplayment for overseas Foes (see n, e

‘of only one judge. The. ‘majority of the Court of

Military | Appeals still adheres to the position that

the..claim . of wrongful refusal of discharge is an

-_ available affirmative defense to court-martial charges

of wilful disobedience of an order of deployment to

Vietnam. See United States v. Larson, 20 U.S.C.

M.A. 565, 43 C.M.R. 405. And this view is shared

by the Army Court of Military Review. See United -

States v. Goguen, supra, United States v. seek 41 ~

C.M.R: 663.

36 Stewart was ordered to “pat on your. uniform to continue

your movement to your overseas destination.in compliance

with your written overseas movement orders” (20 U.S.C.M.A.

at 277, 43 C.M.R. at 117). : |

39)

Moreover, as noted by the court below (App. 91 n.

. 12), “Parisi himself argued at his court-martial —

‘that United States v. Noyd * * * had''settled that.

review of the basis.in fact for administrative denial

‘of a conscientious objector discharge.was proper on

. the issue of lawfulness of the order alleged to have

_ been disobeyed.” The military judge took cognizance

ie of the affirmative defense, examined ‘“‘the entire file

and the entire record” (App. 89 n. 11) and held that.

- (App. 90-91 n. 11): “There has been no deprivation

of administrative due process and I-find from the ex- -

amination of this record that the ruling of the Sec-

retary of the Army was not arbitrary, capricious,

unreasonable, or an abusive [sic] discretion.” Ac- —

knowledging that use of the “arbitrary, capricious”

standard. “may be saying in different words that I am |

- ruling on the basis in fact,” the military judge added

" (App. 90 n. 11): “But:I do not consider that to be

—and I want the record.to soreflect, so you may have .

an opportunity to get a definite ruling on it * * *.”

Of course, if a different standard has in. fact been ~

invoked,” that is a matter to be. remedied by the. —

Army Court of Military Review, which already, has

ruled “* * * that the same judicial review should be

afforded in-service conscientious objection determina-

ae 87 We are inclined to the view that the standard invoked in _

u ' _. petitioner’s court-martial is fundamentally no different —

| the “basis in fact”°standard. In any event, since the ‘

basis in fact” test is generally considered the- ptrasnng

~ known to law” (Blalock v.. United States, 247 F. 2d 615, 619°

(C.A. 4)), any: difference is probably not to petitioner’s dis-

- advantage.. Cf. Sanford Vv. United States, 399 F... 2d “693

. (CA. 9).

3 tions ¢ as are e provided 4 in the ¢ case of pre-induction deci-

sions.” United States v. Goguen,-eupre, Appendix oe

infra, ». TE".

‘At all events,, it seems dea that ’ the affirmative

-defense of wrongful refusal of discharge is: one, that

the: military. tribunals will entertain - when reviewing :

the type. of order. that is involved here; petitioner’ s

own court-martial is an “example.. It is, therefore, en-

tirely: proper to ‘require him to’ pursue his available

o remedies in that forum before allowing ,him access to |

ae the civil courts to litigate the lawfulness of the Sec-

- > Yetary’s, ‘denial. of his conscientious objector applica="-

ene tion. » ac In re Kelly, ' supra; Locks Ve Laird, supra;

.%8 The ‘Court’ ‘of. Military. Review “mig affirm only. such

findings of guilty, and the sentence or. such part or amount of

the sentence, as it finds correct. in law and fact and deter-—

_mines, on ‘the basis of the entire record, should be: approved.

In: considering the record, it may weizh the evidence, judge.

the credibility of witnesses, and determine controverted ques-

tiotis of fact, recognizing that the trial court saw. and _ heard

the: Avitriesses.” U.C.M.J., Art. 66° (c), 10 U.S. C. 866(c).

8° Petitioner suggests that: because ‘it is. possible for the

Court. of Military Review to acquit him on " separate. grounds,

- without reaching the question of f the lawfulness of the Secre-

tary’s disapproval, he should not be required to exhaust. While

“ < guch a contingency cannot be completely discounted, it seems

exceedingly . remote in the present case—the only other. un-

related grounds ‘asserted. by petitioner before » the military:

tribunal’ are (1) that he was ‘denied due process because he »

“was represented by ilitary, rather: than ‘civilian, counsel at

_* the Article 32 pretrial vestigation (10 U.S.C. 832), and (2) ~

‘that he was improper] dered overseas without first being

given a two-hour “grientation” briefing (a requirement that

once existed under" -Arfny Regulation 612- -35, but had been ~

suspended prior. to petitioner’ s orders by a. superseding regu-

= AR 612-2 Sapient 1, Pit see Drifea Vv. Brainard,

| 41

- Thompson v. Wetherill, W.D. Okla., Civ.. No. 70-167,

decided April 21, 1970; and ef. McFadden v. Selec-

tive Service System, 415 F. 2d 1140, 1141 (C.A. 9).

. 2 Nor is it accurate to suggest that the military

is powerless to order petitioner’s discharge if its

eourts should ultimately acquit him of the pending

court-martial charges on the ground that the Secre-

tary’s disapproval ‘was without basis in fact. Such

- a ruling by the military tribunals amounts to a a de-

‘termination that’ petitioner.is entitled to separation

from the Army as a conscientious objector. It is res

“judicata between the individual and the Army. Thus,

the Secretary “has no practical alternative except.to ~

discharge the member.” United States v. Stewart,.

supra, 20-U.S.C.M.A. at 276. In such circumstances,

the Adjutant General of the Army i is required by reg-

ulation (AR 635-200) to follow’ the same procedures |

that apply when “[t]he discharge or release of.an —

individual from the Army [is] ordered. by a us.

Court or judge thereof.” See Appendix A, infra, p.

58. Specifically, upon proper notification, he is to

a“? > a appropriate action to direct the dis-

charge, release from. active military service, or re-

294 F. ‘Guat 425 (W. D. Wash)). In any event, petitioner

should not now be permitted to deprive the Court of Military

Review of the opportunity to pass on the questions relating to.

his conscienitous objector claim merely because he has raised

additional issues in that court. As this Court observed in

- Gusik v. Schilder, supra, 340 U.S. at 133, if resort to the

military tribunals ° does ultimately prove to be. “futile,”

| _ “ThJabeas corpus will then be available to’test any questions of :

jurisdiction which petitioner may offer.”

lease from te control of the iridividual con-

cerned” (ibid.). : . 7

. Moreover, petitioner has an available remedy by

‘way of habeas corpus in the Court of Military Ap-

peals. It is, of course, upon this court, comprised

solely of civilian judges (U.C.MJ., Art. 67, 10 —

-U:S.C. 867), that Congresss has conferred “a gen-

eral supervisory oe over the administration of

military justice.” ' Gale v. United States, supra, 17

U.S.C.M.A.. at 42, 37 C.M.R. at 306. Its “delicate '

perceptions,” it has been said; “have sniffed out fatal

denials of -due process in situations in which’ their

presence would probably : not have been noticed by

most civilian judges.” Bishop, Civilian Judges and

Military Justice: Collateral Review of Cour t-Martial

Convictions, 61 Colum.L. Rev. 40, 57 n. 87 (1961).”

- Endowed by Congress with appellate jurisdiction ~

over military criminal proceedings (U.C.MJ. Art.

"67, 10 U.S.C. 867), the Court of Military Appeals

also claims “incidental powers” (Jn re Taylor, 12

U.SC.M.A. 427, 430, 31 C.M.R. 18, 16) that enable

it to “[mold] military ‘practice by. way of adjudica-

tion” (United States v. Rinehart, 8 U.S.C. M.A. 402,

. 409, 24 C.M.R. .212, 216) in ‘appropriate circum-

stances. See Gale v. United States, supra, 7

—US.C.M.A. at 42, 87-C.MLR. at 306...

‘It now seems well settled that. this military court

has ample power under the All Writs Act, ‘28 U.S.C.

1651 (a), to issue an emergency , .writ of habeas cor-

. See also Warren, The Bill of Rights and: the Mileary:

37 N.Y.U.L. Rev. 181, 189 (1962).

pus in cases, like the present one, which are subject

to its jurisdiction. See, e.g., Noyd v. Bond, supra,

395 U.S. at 695; United States v. Augenblick, supra,

393 U.S. at 350." Its ability to do so as a function

= of its responsibility for “the protection. and preser-

vation of the Constitutional riglits of - ‘persons in the

armed. ‘forces” was explicitly recognized in United —

- States v. Frischholz, 16 U.S.C.M.A. 150, 152, 36°

C.M.R. 306, 308. As the Court of Military Appeals - -

stated more recently in United States v. Bevilacqua,

18 U.S.C.M.A. 10, 12, 39 C.M.R. 10, 12, “an accused

who has been deprived of his rights need not go out-

-. gide the military justice system to find relief in- the

- civilian courts of the Federal’ judiciary.” See also

Levy v. Resor, 17 U:S.C.M.A. 135, 37 C.M.R. 399.

Accordingly; on numerous occasions, this tribunal has —

entertained habeas corpus applications by servicemen |

seeking releasé from military confinement (see, ¢.9.,

Dale v. United States, 19 U.S.C.M.A. 254, 41 C.M.LR. |

254; Horner v. Resor, 19 U.S.C.M.A. 285, NOME.

285; United States v. Bevilacqua, supra; Levy v.

Resor, supra), and it has not hesitated to grant the

relief requested where it deemed such action to be

appropriate. (see, e.g., United States’ v. Jennings;

19 U.S.C.M.A. 88; 41 C.M.R. 88; Johnson v. United

- States, 19 U.S.C.M.A. 407, 42 C.M.R. 9).

Pet? Court of Military phan has jurisdiction 1 to review

all: cases reviewed by a board of review “which the Judge

- Advocate General orders sent to the Court-of Military Ap-

peals for review” (U.C.M3J., Art. 67(b) (2), 10: U.S.C. 867—

(b) (2)) of “in which, upen petition of the accused and on

good cause shown, the Court of Military Appeals has granted

review” (U.C.M.J., Art, 67(b) (3}, 10 U. S.C. 867 (b) (3)..

44 a

Admittedly, most of the cases in which the highest: |

military tribunal has been called upon to exercise its

- exttaordinary power under the All Writs Act have

involved servicemen seeking release from confinement -

‘within ‘the military pending appeal from court-mar- .

tial conviction. See,-e.g., Noyd v. Bond, supra, 395

U.S: at 695. The Court of Military Appeals has not

yet had occasion to speak to the question whether

_. its habeas corpus jurisdiction also permits issuance |

_ of the writ in favor of a serviceman concededly en-

titled to discharge from the military as a conscien-

* tious objector.” It has, however, discussed its power »

‘ to grant extraordinary relief in broad terms i in “cases

- in which [it has] jurisdiction to-hear appeals or * * *

to which [its] jurisdiction may extend when a sen-

- tence ‘is finally adjudged and approved.” United

States v. Snyder, 18 U.S.C.M.A. 480, 482, 40 C.M.R.

192, 195; Ugited States v. Bevilacqua, supra, 18

—U.S.C.M.A. at}11, 39 C.M.R. at 11. While it has

emphasized Jat “resort to extraordinary [remedies

such as those available] under the All Writs:Act * * *

cannot serve. to enlarge. [its] power to review cases,”

‘the court has hastened to add that habeas corpus re-

. lief is appropriate “to aid [it] in the exercise of the

authority [it] already has.” United States v. Snyder,

supra, 18 U.S.C.M.A,. at 483, °40 C.M.R. at 195.

_ 4 We are advised by the ‘teaeane of the Army that re-

course to the Court of Military Appeals for habeas ‘corpus

_ relief in such circumstances has not been necessary, since -

upon a determination of lack. of. jurisdiction by a military .

_ tribunal the serviceman is administratively. discharged pur-

suant to Army Regulation AR 635-200. Cf. United States v.

le 41 & M.R. 663.

| 45

Consequently, where a military court over which

the Court of Military Appeals concededly has jairis- -

. diction, or the Court of Military. Appeals itself, de-. 7

- termines that a serviceman has been wrongfully de-

nied discharge as a. conscientious objector, there

seems every reason to assume that the highest mili-_

- tary tribunal ‘will entertain a habeas corpus pétition.

seeking to effectuate that discharge as a legitimate

exercise of its “supervisory power over the adminis-

tration -of military justice.” Gale v. United States,

supra, 17 U.S.C.M.A. at 42, 37 C.M.R. at 306.

- It does not thereby enlarge its authority to review

cases; in such circumstances the issue whether the.

Secretary’s disapproval of the application has factual

basis has already been considered and -resolved by —

the military courts. Rather, resort by the Court of

Military Appeals to its power under the All Writs

Act, in order to afford the ‘relief to. which the appli-

~ eant is clearly entitled, serves in a very real sense to

aid the court in the exercise of its jurisdiction. It is *

both “incidental to, and protective of, those [powers]

defined in Article 67.” United States v. Bevilacqua,

supra, 18 U.S.C.M.A. at 11, 39 C.M.R. at 11.

43 This seems implicit in Mueller v. Brown, supra. There,

the Court of Military Appeals declined to entertain a habeas

corpus application for discharge, premising its decision solely

on the ground that the, applicant had not yet litigated -his

claim,in court-martial proceedings (see n. 17 supra). The -

clear implication is that where such claim has been scrutinized

by military tribunals in cases falling within the jurisdiction

of the highest military court, a habeas corpus application for

. release from the Army can properly be entertained.

The slim possibility that the Court of Military

- Appeals might not entertain habeas corpus jurisdic- _ |

tion’ if petitioner should ultimately prevail on the

merits of his claim is not sufficient basis for relaxing

the exhaustion requirement. Gusik ®: Schilder, ;

supra, 340 U.S.-at 183. As this Court stated in

Gusik, supra: “If [that] proves to be, no rights have

been sacrificed. Habeas corpus will then be availa-

ble to test any question of jurisdiction which peti-

~ tioner may offer. |

99 44

| -'D. The Factor of Delay

_ By deferring to the military tribunals before whom

the “basis in fact” question is already pending, civil

courts do not foreclose the habeas corpus applicant

from ever. subjecting his claim to civilian scrutiny.

Compare McKart v: United States, supra, 395 USS.

44 Moreover, whether or not habeas corpus relief is avail-

able in the Court of Military Appeals may well be an aca-

demic question in the circumstances of this case. The dis-

trict court has retained jurisdiction; it stayed: the proceed- -

- ings “until there has been trial and a final judgment in the

military courts on the court martial charges preséntly pend-

ing against petitioner” (App. 53). Thus, if petitioner should .

be acquitted by the Court of Military Review. on: grounds

that. the denial of his conscientious objector application was.

without basis in fact, he could immediatély gain access to the

' district court to seek discharge from service; he would not

_ first be required to request extraordinary relief from the ©

Court of Military Appeals. No longer would recourse to the

civil courts interrupt the military judicial process, interfere

with military discipline, or deprive the military of an oppor-

‘tunity ‘to correct its own. errors. “Exhaustion of remaining

military remedies would thus serve no overriding purpose

and need not be required.

at 197; McGee v. United States, supra, 402 US. at.

489. The effect ofan application of the exhaustion

doctrine in the present context is, instead, merely to

delay consideration by the federal courts until it be-

comes’ clear that a final determination of the issues

has been made within the military. judicial system

and a live ‘controversy still femaine See Noyd v. ;

Bond, supra, 395 -U.S. -at 696; Gusik v. Schilder,

| supra, 340 U.S. at 131-132.

- Petitioner contends that such delay is an aaa

-harsh condition to impose on servicemen seeking dis- ~

charge as conscientious objectors, since. it forces

them to continue serving in the armed services, pend-. .

ing final resolution of court-martial proceedings, con-

trary to their professed religious opposition to war in

any form. It must be remembered, however, ‘that

we ‘are dealing here not with a person who. holds -

| such beliefs at the time he is called upon to serve, —

and thus disputes from the outset the military’s

jurisdiction over him (supra n. 25). Rather, peti-.

tioner voluntarily submitted to induction » and will-

ingly surrendered to the discipline and control that

is an essential element of military life. . If, nine

months later, he declares that the commands of his

eonscience have changed so: that they are no longer

compatable with his duty assignment or the exigen-

cies of service, that alone does not entitle him to sep —

aration from the Army or excuse him from the obli-

gation to obey military orders. ae

The Secretary of Defense has promulgated a di-

rective (DOD Directive No. 1300. 6) which specifies —

the conditions on which conscientious objectors shall |

era

be eligible for discharge. Those: in the service who

profess opposition to war in any form can no more

claim separation as a matter of constitutional right _

than can civilian conscientious objectors seeking an |

‘exemption under statute (50 U.S.C. App. (1964 ed.) —

456(j)). See, e.g., United States v. ‘MacIntosh; 283

U.S. 605, 623-624; Hamilton v. Regents, 293 U.S. 245,

264; In re Sommers, 325 U.S. 561; Welsh v. United .

States, 398 US. 338, 356 (Harlan, J., concurring).

Discharge is a matter of regulatory grace, * and is

afforded only to those members: of the armed forces

‘who can demonstrate. satisfactorily that their oppo- -

_ sition is general and not particular (Gillette v.

United States, 401 U.S. 487), is rooted in conscience

ahd religion (Welsh v. United States, 398 U.S. 333),":

is sincerely held (Witmer y. United States, 348 U. S. +

_ 875, 381),*° and “did not. become fixed until entry

into service”. (DOD Directive 1300.6, para. IV (B)

(2). ee zs

Petitioner was unable 0) convince the Secretary of

the Army and ABCMR that he qualified under the

relevant criteria. Whether or not that determina-

. DOD: Directive No. " 1300.6 (May 10, 1968), ‘ie: IV

(B) (1) states: “No vested right exists for any person to be.

discharged from military Service at his own request even for |

conscientious objection before the expiration of his term of

service, whether he is serving voluntarily or involuntarily.”

.And seé Army Regulation AR 135-25.

4As this Court stated in Gillette (401 U.S. at 442),

«“* * * the standards for measuring claims of in-service ob-

jectors * * * are the same as the statutory tests applicable

in a pre-induction situation.” And see DOD Directive No.

1300.6, para. IV (B) (3) (b) ; see also AR 635-20, = 3b.

‘tion should bé sustained—a question which plainly

cannot, and should not, be answered on the present

record—petitioner remained, of course, subject to the

discipline and control of the Army. In order to as-

sure the minimum possible conflict between his as-

serted beliefs and his continuing obligation. to serve,

- ‘the district court restrained the Army from. assign-

‘ing him “to any duties which require materially

greater participation in combat activities or combat

training than is required in his present duties” (App.

30): The order te-report to noncombatant duty in

Vietnam complied with the court’s mandate. As Mr.

Justice Douglas observed in denying petitioner’s ap-

plication for stay of deployrnent (App. 36; 396 US.

~ at 1234): “It would seem: offhand that ‘psychological f

counseling’ in Vietnam would be rio different than

‘psychological counseling’. int army posts here.”

~ Having deliberately elected to defy that order, pe-

titioner is now in no position to complain of the de-

lay occasioned by permitting the military to prose-

cute him for such disobedience. As the court below

aptly stated (App. 70-71) :

-" We are not blind to the possfle moral dilem-

ma that Parisi faced. We canffot quarrel with

. the. proposition that disobedience based on the

dictates of religious conscience is based on. “an

obligation, superior to that due the state,-of not

_ participating in way [sic] in any form.” United

States v. Seeger, 380 U.S. 163, 172, * * *. How-

_ever, the District Cour't’s injunction was reason-

able and afforded ample protection for Parisi’s

religious scruples. Three [sic] judges of our

' a ‘50

— court.and our Circuit Justice found. that the

~ military order for Parisi’s redeployment did not,

_ in the circumstances, violate the District Court’s -

‘’. protective order. . While Parisi may. honestly —

have disagreed, that disagreement cannot be held.

to have justified his unilateral, determination to ~

defy his military superiors, not to mention the _

federal judges . had considered and rejected

his claim. Were every soldier dissatisfied. with: ©

some phase of national policy or military ‘effort

allowed to exercise [the same] discretion, neces- |

sary military discipline would collapse. Had

Parisi bided his time it appears, on ‘the record

before us now, that he likely would have obtajn-

ed the relief he sought from the: District Court.

If the fruits of his impatience are bitter, he has

only himself to blame for production.

Moreover, the delay of which petitioner now com-

io plains i is substantially of his own making. The order.

- of the district court that is presently being contested

_ was issued on March 31, 1970 (App. 55). Approxi-

mately one week later, on April 8, 1970, petitioner

was found guilty of the court-martial charges against

him, and “ [t}he record of trial [was] forwarded to.

The J udge Advocate General of the Army for review

_ by a, Court: of Military Review” on July’ 2, 1970

(App. 59). ‘In the normal course of events, the ‘re-

viewing court would in all probability have rendered

its’ decision before now. Petitioner, however, through -

no less than seven requests for “enlargement of time,”

postponed filing his brief with the Court of. Military

Reviewsuntil April'27, 1971, some nine months later.

The respondents’ venty. | brief was filed on A ugust 2,

_-- 7

1971. We are advised that. on _Septembér 14, 1971, .

~ petitioner’s counsel informed ‘the military eourt that —

he did not desire oral argument; the court has not

yet acted on the case. In these circumatances, peti-

_ tioner’s objection to an application of the exhaustion

doctrine on the ground of - “unconscionable ‘Gelays” |

| (Pet:. 58) is not well taken.

\S , CONCLUSION

For the reasons stated, the judgment of the court o

of appeals: should ‘be- affirmed. eae

Rhajoealig. submitted.

| ERWIN N. GRISWOLD,

‘ . Solicitor. General.

RoBERT C. MARDIAN, - ,

Assistant Attorney General.:

WM. BAprorD REYNOLDs,

Assistant. to the Solicitor General.

ROBERT L. KEUCH,

RoBERT A. CRANDALL,

Attorneys. oa iy

’ SEPTEMBER 1971. f

it Petitioner’s counsel in the present proceedings: before —

this Court do not represent . him=ni ° the same's§ before. -

the er tribunals.

— tice, 10 U.S.C. 866, provides in relevant art: SS

a Le record, it may weigh the evidence, judge the cred-.

ft Article 66 of the s Uniform Cade of 1 filitary. Jus- ;

: (a) Each Judge ‘Advocate "Gen ral shall e@s-..\.

tablish a ‘Court. of Military Review which shall -

_ be compused of one. or,more panels, and each

_. panel shall be composed ‘df not less than three ap-

pellate military judges..* * * Appellate military

_ judges who are assigned to a Court of Military _

Review may be commissioned officers or civilians, ©

each of whom must be a member of a bar of a

Federal court or of the highest court’ of a State.

3 s.

(b) The J ndge Advocate. General shall. refer to

a Court of Military Review the record in every .

~ case of trial by court-martial in which the sen-.

— tence, as: , affects a general or flag officer

or extends to death, dismissal of a commissioned —

Officer, cadet, or midshipman, dishonorable or.

_bad-conduct discharge, or senfinggndnt for one .

year or more. .

-- (ce) In a-case referred to it, the Court of Mili-

* tary Review may act only with rade to the

-. *- findings and sentence as approved by conven-- ~

- , ing authority, It may ‘affirm. only su findings

‘ .of guilty, and the sentence or such part « or amount —

of the sentence, as it finds corrett in law and

: fact and determines on the basis of the entire

-record, shall be appréved. In considering ‘the

‘ibility of witnesses, and determine controverted ~ :

me questions of fact, recognizing that the =. court ~

geek: reisbinenuctisiatbsercmssaly

e ‘3s s *

ees ‘ y

Qos

2 Ayticle 67 of the Uniform Code of Military Jus-

tice, 1 10 U.S.C. 867, provides in relevant part: |

-(a}(1) There i is a United States Court of Mii-

. itary. Appeals established under article I of the. ,

Constitution of the United States and located for .

administrative purposes only in the Department: __

' of Defense. : The court consists of three judges

appointed from. civil life by the President, by -

_ and’ with the advice and consent of the Senate, “—

- . for a term of fifteen‘years, * *’* Not-more than |

_ two ofthe judges of ‘the court may be appointed ——-- _

-> from the same political party, nor is any person Re

. - eligible for appointment to the court who is not ss; sC

-a-member of the bar of a Federal ae: a eee

highest court of a State.* * *. Sse | : 2,

* =. s .

‘(b) The Cunt’ of Military Pe shall. re- .

view the record in— .

POReeeROG, ¢ 5 sien bi th spatbian'Ga a’

firmed by a Court of Military Review, affects a

general or flag officer or extends to death;

. (2) all cases reviewed by a Court of Mil- -

itary Review whiéh the Judge Advocate General ~

> orders sent to the Court of Military soon for

review; ands

. — (8) all cases reviewed by a Oouirt of Mik

_. itary Review in which, upon petition of the ac- . -

‘cused and on good cause shown, tlie Court of Mil-

itary Appeals has granted a review. et ae

rs * . *) a

rae In any case reviewed by it, the Court of

Military Appeals may.act only with respect to

the findings and sentence as approved by the con-°

378

; as

tir

vening authdrity and as. ‘ alieied-s or set aside as

incorrect in law by the board of review.. In a -

_ case which the Judge Advocate General orders

sent to the Court, of Military Appeals, that action’

need. be taken: only with respect to the issues,

- raised by him, In a case reviewed upon petition :

of the accused, that ‘action need be taken: only

a With respect to issues specified in. the grant of

® review... The Court of Military Appeals‘shall take . _

action only with respect to matters - law. ~°.

. : * * ‘ors:

"8. The All Writs Act, 28 U.S.C. 1681(a) provides:

(a) The Supreme Court and all courts estab-

lished by Act of Congress may ‘issue all writs. .

_ necessary or appropriate in aid of their respec-

- > tive a aap yeaa aie mama” to the usages: and |

— of law.

. _ e - .

4. Desertiniiit of Defense Directive No. 1300. 6 :

(May 10, 1968) provides i in relevant part:

an YTV. Policy ~~ | |

ea a, es Ss oa

B. DoD Policy.—Consistent with this national

policy, bona fide conscientious objection as set

» forth in this Directive by persons who. are mem- .

bers of the Armed: Forces will be recognized to

the extent practicable ‘and equitable. Objection.

to a particular war will not be recognized. This

‘policy will be execyted subject to the following:

1. No vested right exists for any gerson

to be discharged from military Service at his own

-. yequest even for conscientious objection before

_ the expiration of his term of service, — he

_is serving voluntarily or inreohintarily. Adminis,

trative discharge prior: to ‘the completion of an

obligated’ term of service is discretionary with

the military Service concerned, based on judg-

ment of/ the facts and circumstances in the case.

2. A request for discharge after entering:

military ‘Service based solely on conscientious ob-

jection which éxisted but was not claimed prior my

to induction ‘or enlistment cannot be entertained.

_ ‘Similarly, requests for discharge based solely on

_ conscientious objection. claimed and denied by the’

Selective Service System prior to induction can-

* Not be entertained.: This accords with Federal

court holdings that a claim to exemption from

military Service under the Selective Service laws

must be interposed prior to notice of. induction

and failure to make timely ‘claim for exemption

itutes-

“ever, claims based on. conscientious objection

growing out of experiences prior to entering mili-. .

tary service, but which did_not become fixed until

entry into the service, will. ‘be considered. ,

nee) - eee ae [- 8 : =

- [8] b. Since it is in the national interest

to judge all claims of conscientious objection by

~ the same standards, whether made before or after’ =

entering military service, Selective Service Sys- ~~

tem standards used in determining 1-0 or 1-A-0

. classification of draft registrants prior to induc-

tion shall apply to servicemen who claim conscien- .

tious objection after entering military service.

—— omitted. ] ’

rae ae Ae 2

* * : 8.

* .

1 fas

ee ¢ ieee Tiled :

na ) 1By -" ‘Pending decision on the case and to eee

. \: the extent practicable the*Person. will be employed -:

_ +4 \ $n duties which. involve the minimum conflict -

| _ with asserted beliefs.. This paragraph shall not —

. ‘be applicalele where repeat applications are fifed

_ by an individual based upan mabetaiiialy the Sates

same muppets information. s

‘*. * ere i,

E. Determination by the Military Depart- ie

* ment, in accordan with the facts of the case

and the guidelines fi ed herein, shall be final —

‘with respect to the edntinistrative mp of

- be its members.- aoe

* * 2 »., gg En

B. Army Regulation AR 695-20 (August 1 t 15, 1970)

peoviden | in relevant part:

| _ ° -[8] b.. Federal courts have held that a: sdaten

/ * -to-exemption from military service under Selec-

tive Service laws must be interposed prior to no-

| tice of -induction, and failure to make. timely ae

‘+. aim for exemption constitutés, waiver—of the

—————sight to “claim. However, claimns based .on con-

cee _ seientious: objection growing out of experiences —

ones * prior to entering military service, but which did

>». + not beeome fixed until entry into the service, will

“.. . '“je-eonsidered, Requests for discharge after en-

- tering military service | will not be erent con-~

| 7 sidered when—_ ,

? (1). Based poe objection

_ which existed, ae ch was not claimed prior

ecco | notice of indu action, enlistment or ‘appointment.

} System prior :

; (3) Based solely upon considerations. of

policy, pragmatism or expediency.

: Br Based on ra cali’ to a particular

- Se | Rie

; ‘ he

; (2) Based solely on soimitaitiagees: objec-

__. tion-claimed “eh denied by the Selective Service ;

to induction,

war.

* Ie a

have submitted formal applicants (para. 4a) for

discharge based on conscientious objection will be _

«retained in their units and assi signed duties: pro-

. viding the Iginimum practicable conflict with their

. does not preclude the trainees from participating

| - tion to the Army Board for Correction of Mili-

in those aspects of training that do not involve

objector applicants are subject to all eee

— to include those on training. ;

» Serre a

--\ d. When‘ gzrequest for-discharge has been

denied, individual will comply with reassigrtment

_ orders, be assigned to any duties, or’ be required

a 6. ‘Utilization, assignment and training of ap-

plicants for discharge as‘ conscientious objectors.

~~ asserted beliefs pending .a final decision on their :

_- applications. In the case of trainees, this means

_ that they will not be required to: train in the

' study, use, or handling of arms or weapons. It.

the bearing er use. of arms, weapons, or muni- _-

agen eee for this restriction, conscientious

to participate in any type of training, Applica- :

a tary: Records has no effect on such ‘reassignment,

es ane

” we ag ‘ : ; ; i

_ \

_- performance of any duties, or participation ae

any type of training, - ; “¢ SG

appellate agency that an individual is not cur- |

6. Army Regulation AR 635-200 (June 1 12, 1968)

provides in relevant part:

6-12. Lack af Jurisdiction. "The sachinge or * |

release of an individual from the Army may_be~ mee

ordered by a U.S. Court or judge | thereof. The’.

officer upon whom such af_ order or wr writ.is served

will report. immediately to The Judge Advocate

__ General, as - directed’ by MCM 1951, paragraph

| OAT, and AR 27-5, and will notify The Adjutant.

~ General, Department of the Army, ATTN: AGPO-

SS, Washington, D. C., who will take appropriate

_ military service, or release from military control -

of the individual concerned. * * * Authority

* (AR 635-! 00) and SPN 316 for separation will

- be included in directives or orders directing indi-

‘viduals to report to the appropriate transfer ac- .

BS or unit personnel section designated to ac-

gdmplish trarisfer, processing for discharge, or

release from active duty, as appropriate. Simi- —

Jar action will be taken ‘upon the final judicial de-. -

termination of’ a convening authority of a gen-

eral or special court-martial, a law officer, a

president of a special court-martial, or military

* yently a member of the Army.

ee “APPENDIX 5

. ie DEPARTMENT | OF THE*ARMY® -_

Office of the Adjutant: General’ 7

etaig - Washington, DC.208187

-_ “AGPE-RP Parisi, Joseph. ts” an a es

048 34 0713, ‘US52726468 (24. Nov 69), os Sy

p> jase ; f 2, Mar 1970

PFC Joneph Parisi, 048 34 0713

Hospital Company a a oe

_ U.S. Army Hospital ~~ | Sac ee

‘Fort Ord, California 9so4r = ae a

Dear Private Parisi: : eye - -

I have been requested by the Awe Board for Cor-

‘rection of Military Records to make further reply‘to ~ -

your request for.correction.of your Army records. —

- he administrative procedures established by the.

Secretary of the Army for the guidance of the Army

Board for Correction of Military Records provide that

the Board may deny an application where a: sufficient

basis for a review has not been established. -

- Following. exarhination and consideration of your ~~ .

Army records together with such facts as presented by _ os -

you, the Army Board for Correction of Military Rec- =

- ords on 11 February 1970 determined that insufficient |

_ evidence has been presented to indicate probable ma-

terial error or RTE pzroaianinas A your applica-

_ tion was denied. woe

_* In the absence of new and nevees evidence tend-

ing to show the existence of error or injustice in the

Bie ie 60

rie aa bhatt ei

, * military records, further consideration by the Board... *

- - ig not acer seacrecs! Nowe

Sincerely,

oe a KENNETH G. WicKHAM

i : KENNETH G. WickHAM

Major General, USA ;

- | The Adjutant General

Mr. Dick Goff ~

44 Montgomery St.

San Francisco, CA 94104

/ | 7

| .

7 Fr

——-

APPENDIX Cc

. UNITED STATES DEPARTMENT OF Justice,

shar epaicncicaas DL. 20580, October 23, 1969.

Memo. No. 852.

To All. United States Attorneys. ‘ i ie |

Re: Habeas Corpus Relief of Servicemen Denied:

| "After ‘aiid with the Department of Defense

' the following policy respecting review of denials of

a release sought under Department. of Defense Direc-

tive 1300. 6 has been ——- effective ss:

L EXHAUSTION. oF MILITARY JUDICIAL F REMEDIES

1? ccuttsmncital cherie Niven 'nit nin pgibibasly

_* serviceman need not commit an and exhaust -

military judicial remedies as a prerequisite, to relief -

by way of habeas corpus proceedings -in the District

Courts. However, if court-martial charges have been’

preferred military judicial’ remedies must: be ex- .

hausted before:resort to the civil courts. The Govern-

‘ment _acquiesces in the decisions in In re Kelly, 401

_.F, 2d 211 (5th Cir. 1968) and Hammond v, Lenfest, |

398 F. 2d 705 (2d Cir. 1968) and will no longer urge .

the: position taken in Noyd v. en 378 F. 2d-

| 538 (10th Cir. 1967). etree ate

ee 2 EXHAUSTION OF. MELITARY ADMINISTRATIVE |

The decision of the Military will be bunt ripe

for judicial review upon the firal action of the Adju-

- tant General of the iar the Chief of the Bureau -

ind

. f°

. ww °

° . 62 |

of Naval Personnel, the ‘Adjutant General of: the Air

.’ Force or the Commandant’ of the Coast Guard. Appli-.

’ Correction of Military Records will remain an avail.

able procedure but will not be insisted. upon by the .

Government asa precondition to judicial review. The

Board for -the Correction of Naval Records adheres

to its policy of rejecting: applications for: want of

_ jurisdiction.

3. The instructions set forth ‘in tle. United States’

ol. 17, No: 23, pp. 613-14, to |

. . the extent that they . are inconsistent with tk ‘fore-

| Attorneys Bulletin,

goings “re revoked, | oe ne

eile _ WILL WILson,

“Assistant Attorney: General, Crema Division.

ms APPENDIX D - ete

| UNITED ‘STATES ‘COURT OF

~s MILITARY REVIEW

a a Washington, D. C, 20815 @ Te

~~ Before eK

KELSO, NEMROW and TAYLOR .

Military Appellate J mages

rn ae |

‘[ Dated, Entered ant Filed Clerk of Court

_ US Army Court of Military Review]

CM 421998 :

j UNtrEp Sta .

Private (E- 1) PHILIP W. GocuEN, 026-32-0676, U.S.

’ Army, Special Processing Detachment, Special x

Troops, US Army _retning Center, nets Fort .

Dix, New = :

, General Court-Martial Convened by adie —ee

Army Training Center, Infantry and Fort Dix, Fort --

Dix, New Jersey (T. ¥ Nichols, Military Judge) ?

serra adjudged 27 August 1969 Approved sen--

:-Bad-conduct discharge, confinement at hard

‘aber. ‘for six months, Ge forfeiture of $100. 00 per )

month for six months. ,

fos

Appellate Counsel for the Accused:

CPT Libero Marinelli, Jr., JAGC

- CPT Bernard J. Casey, JAGC | : :

» LTC Charles W. Schiesser, JAGC :

_ Appéllate Counsel for the United States: -

CPT John C,:Lenahan, JAGC

_- OPT Benjamin G,.Porter, JAGC

» COL David T. Bryant, J AGC:

_. OPINION OF THE COURT

TAYLOR, J udge: :

Contrary to his pleas, the appellant was convicted,

“on 4 June 1969, by a general court-martial, of an

_ unauthorized absence for a period of.about 18: days.

_ (Charge II) and of disobeying the order of a superior

at.

commissioned officer to put om a proper military uni-

form: (Charge I) in violation of Articles 86 and 90,

~ Yniform Code of Military Justice (UCMJ), 10 USC

88 886 and 890, respectively. He, was sentenced to a

bad-conduct discharge, forfeiture of all. pay and al- ~~~

lowances, and confinement at hard labor for 12

months. The convening authority approved the find- ~

ing of guilty but, because of jan instructional error

at trial, set aside the sentence and ordered a rehear- 7

ing thereon. The rehearing on sentence was held on

27 August 1969, and the appellant was sentenced, by _

a military judge sitting alone as a general court-

martial, to a bad-conduct discharge, forfeiture of |

> $100.00 pay per month for six months, and confine-

ment at hard labor for six months: The’same person

- - who served as law officer [hereafter referred to as

- military judge) at the original trial was the military,

— ee .&

_ judge at the rehearing on sentence. On. 17 October.“

1969, the convening authority approved the sentence

adjudged at the 8

ve 1969, the. United States—District.

On 14°

- Court for the District of New Jersey granted a pe-

tition for writ of habeas corpus and ordered that the

. appellant be discharged from the. custody of the

Army." In compliance therewith, he was released from’

custody and control of the United States Army on 27 |

- October 1969.> |

stem defense counsel assign the following « er-

rors:

‘

1 Effective 1 August 1969, the UCM was amended by the:

Military Justice Act of 1968, 82 Stat. 1885 (1968), Before

the amendment the trial judge at

7 title of law officer. Under the Act, the foes e was changed to

cul conse of nly» mfr Todge If rected hy ar

* cused, See Article 16, UCMJ, 10 USC § 816. . : .

2? Goguen v. Clifford, et al., 304: F. Supp. 958 (D. NJ.

1969). The district court held that the sole test for discharge

_ on the basis of conscientious objection. is the sincerity of the’

objector’s ‘belief thst war is wrong. Subsequently, the Su-

. . preme Court in United States v. Welsh, 90 S.Ct. 1792 (1970),

indicated that this is not a correct statement of the law. -

. Infantry and Fort Dix, New Jersey, dated 27 October 1969,

as amended by SO No. 887, that headquarters, dated 8 De- se

cember 1908, ‘ :

- %

Errondous Disposition By the » Secretary of the

: Army of An Application for Discharge Under

-the Provisions of AR 635-20 Through Employ- ®

ment of Incorrect Decisional.Standards Is a De-

fense To a Ghdrge of Subsequently Disobeying ~

An Order Conflicting With the Conscientious

- Objection Beliefs Providing Basis for r the. Appti-’ |

cation. -

A The Detision of.the United States District |

Court of New Jersey That the Appellant. Is .

a Conscientious Objector Entitled to Dis-

‘charge Under the Provisions of AR 635-20.

and That the.Secretary of+the Army Im-

~ properly Denied the Appellant’s Application

for Such Discharge Through Employment of

_An Incorrect Decisional Standard. Is Res--

Judicata ‘and Binding es the * ued |

Judicial System. a

The Military J udge’s Refusal, Based on His

-Notion That the Court-Martial Was. With-

‘out Jurisdiction To Review the Correctness

of the Secretary of the Army’s Decision on .

"the Appellant’s Application for Discharge

- Under the Provisions of ‘AR 635-20, To Al-

. low Litigation of the Propriety of That _

cision Was Prejudicial, Error.

I -

The Evidence Presented At Trial Is Insufficient

- Asa Matter of Law To Prove Beyond a Reason-

able Doubt That the Order in Question Was Not’.

Given Solely for the Purpose of Tacryanng

Punishment.

_ religious;-conscientious objector and entitled‘to sepa-

. - the administrative. determination connected with” a

: ‘The reason for disapproval was expressed as:.

% \ 2

. = ane | . IIT os @

"The Military J udge in Reconiniesding That the

_ Secretary of the Army At a Later Date Substi-

tute An Administrative Discharge for the Bad ~~

Conduct Discharge Which He Adjudged As Part

. of the Sentence Impeached the Appropriateness

‘of. the Punitive Discharge Portion of the Sen-

“Assigned Errors IA ‘and Il, are without’ merit and a,

do not warrant discussion. “ — |

. 4At the original trial of this case, the deletan thoved

to dismiss the disobedience charge on the ground that -

the order given to the accused, was unlawful because

there was no basis’ in fact for the finding by the De-

partment of the Army that ‘it anaet weet a

ration as such. The military judge denied the motion

on the basis-that he was. not empowered “to review .

“conscientious objector application.” | 7

The record indicates that the appellant filed a first

application ‘for discharge ‘as a conscientious objector

* on 29 January 1968. The application was disap- _

proved by the Secretary of the Army on 10 June 1968."

“Not based upon religious training or belief but |

upon personal philosophical views.” |

At the time of trial, the administrative record of that

application was in evidence before the United States.

District Court in, connection with the appellant’s peti-

tion for writ of habeas corpus. The defense counsel

expressed a.desire to present it in evid -at the’

court-martial. The military judge that the

court was not empowered to to rule on “any ree. of

fact, law, or mixed law and fact” connected with “the

administrative determination.” He also stated that

. . he would rule that the file was inadmissible if it was

offered in. evidence as a defensive matter on the mer-

its, He further advised that it might later be admis- -

sible as a mitigating factor during the sentencing por-

-« tion of the trial. Since the file was never offered in .

' evidence, it is not contained in the record of trial and

the facts discussed i in n this opinion are riot taken there- |

from.

Although the’ motion to dismiss Was - denied . and”

. conscientious: objection. was not. allowed as a defense,

some evidence of the issue was interjected into the Lf

original trial... .

In July 1968, the appellant submitted a second. Xp -

plication which -asserted that new. evidence was at-

_; tached. This. application was marked as a. defense

exhibit for identification and offered in evidence both

on the merits and after findings. Although admission

into evidence was rejected in each instance, the file,

having been marked for identification, is attached to

the record.‘ Qn 24 September 1968, the second appli-

cation was returned to the appellant by. Headquarters

First United States Army, without action, in accord-

- ance with paragraph 5, AR 635-20, 17 August 1968,

because the evidence in the second applicatioggas not

_ $0 substantially different from that in the first as to

warrant favorable consideration. Apparently, some

later.action was taken on this application since it was

not until 14 February 1969 that the unit commander

advised the appellant that his application had been

‘finally disapproved = that he would be ecard

SAE Wa Sokcuictas ‘oa sentinee,. the efitiay judge indi-

“tired ee

eet ee ee Me

time of rendering this advice, the unit commander

noticed: that the appellant was wearing civilian

clothes and issued the order for the appellant to don |

testified that before .

a uniform. .The unit com

this time the appellant had always been dressed in | .

an riate uniform. The appellant testified that

“he had not been wearing-a uniform for two days prior

to this encounter. Pending final action ‘on his -appli-

cation, the appellant had been assigned to limited -

duties that did not ‘conflict with his asserted beliefs,

‘primarily: clerical duties, but had not been excused .

from wearing a uniform.

Immediately after sentencing the appellant at the -

_ rehearing the military judgé stated:

é ys e same time I shall, and I do recommend that

_ <qiltimately the Secretary of the Army substitute

_ an administrative form of discharge. ar

“As to your conscientious objector assertions, ;

I think the record is clear from the original hear-

ing that I did not think that this court has the.

right or authority to redetermine the administra-

_ tive correctness of the administrative decision

concerning your claim. And I certainly adhere

to that. So. that from the legal standpoint the

claim was. denied and I cannot really condone any -

self-help in this area. And I must-say this mat-

ter has been recognized fairly recently by the

Court of Military Appeals. On the other hand,

as.an individual, I must say that had I’ beén in

.@ position to assess your claim of conscientious

objection, I believe that I would have granted that

request and it is for this raeson that, even though

I believe that a bad conduct discharge is appro-

. &»

priate to the offenses under all the circumstances —

_and it is for this. reason I have adjudged it, at

(: "

70 | .

“And finally, just to make myself clear, my |

- @xpressed disagreement with the administrative |

determination as to your conscientious objection

status is on the facts, it is not any bélief on my .

part that there was any arbitrariness or failure

to consider all the matters which’ I believe has —

| been taken ‘up by you in other proceedings i in the*

/; > federal district court.”,.

In Assigned Error IB, appellate defense counsel

urge. this Court ‘to hold that qnilitary judges are em-

powered to rule on the “correctness” and “propriety” -

/ of decisions by the Secretary of.the Army to disap- _

// prove requests for discharge that are based on con-

- seientious objection to participation in war. We can- — ;

not: agree. In our opinion, the military judge wag, cor- -

rect in his post-sentence pronouncement that he was

not empowered to,overrule the Secretary’s determina- __

_ tion simply because he disagreed therewith under the —

- facts. However, United States v. Noyd, 18 USCMA

483, 40 CMR 195 (1969), decided after the original

trial, clearly establishes that the military judge’mis- .

‘construed his powers concerning his authority to act

on the motion to dismiss,‘ For the purpose af future

‘ . guidance; we feel it necessary to express our. views _

- on*this subject.. :

_ In Noyd, a case very diestias to that of this appel-

.: Tant, the United States Court of Military Appeals held _

_., that military judges are empowered to rule on the ~

legality of the Secretarial decision where the validity

of a subsequent order depends upon that decision.

- In ‘Noyd, the accused, like this appellant, was con-

_ victed of disobeying the order of a superior commis- -

sioned officer that was issued shortly after hee was\

- notified that his application for discharge as-a con- \

tious ‘objector had been disapproved, However,

unlike this appellant, Noyd was convicted of disobey-

<,"

ee; |

ing an: order to perform a particular military task, G

- that is, “to fly as a F-100 instructor.”. He had not

been required to perform this duty pending final ac- ‘

tion on his application for discharge. The portion of

‘the Noyd opinion which we consider critical to our

discussion of this case is quoted below: |

' “For reasons which can be readily imagined,

but need not be recited, the Department of De-

- fense determined to help the serviceman. ‘who,

while in service, developed conscientious scruples _

against bearing arms or participating in the mili-

tary mission. The Secretary of Defense promul-

- “gated a directive to authorize. separation of con-

scientious objéectors. Department of Defense Di-

rective, No. 1800-6, August 21, 1962, revised May

10, 1968. [Footnote omitted.]. This directive was.

effectuated in the Air Force by the provisions of

AFR 35-24, March 8, 1963. ‘Paragraph 3 of the .

regulation in effect at the time of the accused’s

_ application provided as follows: : ‘Claims of con-

_ Scientious objection by all persons, whether exist-

ing before or after entering military service, —

should be judged by. the same standards.’ a

“According to appellate defense unsel, the

Secretary of the Air Force erroneously assumed

the regulation included the conscientious objector

opposed to'all war, but excluded the selective ob-

jector opposéd to an ‘unjust’ war such’as the Viet- |

nam conflict. They further contend that this mis-

taken assumption led the Secretary to pony aie a

accused’s application for separation. from the a

service. The Government ‘maintains that, even if

‘wrong as 4 matter of law, the Secretary’s ruling

‘had absolutely nothing to do with the order the

accused chose to disobey.’ The evidence is con-

trary to the Government’s contention.

- 4

72 Se ee ie ‘ers

eo “Obviously mindful of the conflict between the Je

~ needs of the service and the plight of the con- =

- geientious objector, the regulation directs that, == —

pending consideration ‘of an application by the

Secretary, the conscientious objector be assigned °.- -

_” difties providing ‘minimum conflict with his-pro- —

_ fessed beliefs.’ AFR 35-24, paragraph: 7.. Colonel

| Hansen testified he gave the accused the order. to

“fly as an F-100 instructor only after he had been, -

informed the application for separation had been

denied.” The validity of the-order, therefore, de-

wan _pended upon the validity of the Secretary’s deci-

‘sion in much the same way the order to the ac- _

cused in the Voorhees case depended upon. the

validity of the Army’s regulation on review of

manuscripts by service persons which were in-

tended for civilian publication, If the Secretary’s

decision was illegal, the order it generated was

also illegal. See United States v. Gentle, 16

USCMA 437, 87 CMR 57.”: Id. at 491-492, 40

" OMR at ! 208-204.

‘The Court rt carefully ‘pointed out in 1 Noy that con- 7 -

_ seientious objection in and of itself is not a defense Ae

to disobedience of an order by stating:

; “Fundamental to an effective armed force is. -

the obligation of obedience to lawful orders. The —

_ obligation to ohey a lawful order cannot be, and. . |

4 . ig not, as a matter of law, terminated on the -

_-** mere occurrence of a condition or circumstance.

that ‘might justify separation from the sérvice. —

On the contrary, the obligation to obey continues .

‘until ‘the individual is actually discharged in ac- -

is cordance with the provisions of law.” Id. at 491,

‘.. 40 CMR cee re Pa |

“Phe ‘ater opinion’ in United States -v. Wilson, 19 4

-USCMA 100, 41 CMR 100 (1269), reiterates this |

| proposition by’ indicating. that ed

: “If the command was lawful, the dictates of ac

sCused’s conscience, religion, or ‘personal philoso-.

| “phy could not justify or excuse disobedience.”

Qur opinion does not in any way alter that rule of

-In considering the power of the military judge to

entertain a motion of the type involved in this case,

_ ‘we must: ascertain what constitites an “illégal” det ve

—_ sion of a Secretary of a military-department. In our -

"opinion, Noyd holds that such deeisions are illegal if.

“jad Secretary of the military department in reaching,

his decision: :

“() Erman cara andar ried

., tn applicable Wag A de Send oe

fense assertion in Noy |

_@) Applied a standard which is ‘inconsistent

nn | on ,

A - Voorhees, 4 USCMA 509, 16 Guess |

- (1954). |

_ (3) Was acting on a matter which He “was not

_ @uthorized to decide. See United States v.

Gentle, 16 USCMA 437, 37 CMR ae (1966),

which is cited in Noyd. >

Our study of Department of ‘Defense Directive

1300.6, 10 May 1968, particularly. paragraphs [VB3

‘and V thereof, satisfies us that. it establishes a’ re-

quirement. that the military departments may not dis-

° approve a conscientious objector application unless

there is a basis in fact for so doing. Thus, if an ap-

.. plication, is disapproved without any basis in- fact by.

a military department, it constitutes an illegal deci-

sion under (2), in the ‘above paragraph. Thecdirec- .

tive of the Secretary of Defense’ (para IVB8b) - ‘also

- expresses a desire that claims of consciéntious objec-

a tion made. entry into the military service be

Judged by thé same standards that are applied ‘when

_ such claims are asserted before induction. Regarding

judicial review of ‘conscientious “objection ° decisions

- made before induction, Congress provided as follows

- "> in section 10(b) (3), Military Selective Servicé Act

of 1967, 50 USC App § 460(b) (3) (1964), as.amend-

ed (Supp ¥,: 1970) :

“No judicial review shall be made of the classifi-

cation or processing of any registrant by local

boards, appeal boards, or the President, except

_as.a defense to a criminal prosecution instituted

‘under Section 12 of this title, after the registrant

has responded either affirmatively or hegatively

* to an order to report for induction, or for civilian

work in the case of a registrant determined to be

opposed ‘to participation in: war in any form:

: Prowse, That such review shall go to the -ques-

8 - . 75

i tion of the jurisdiction herein reserved to local

; boards, appeal boards, and the President only

‘when there is no basis in fact for the ——-

tion assigned to such registrant.”*

‘Therefore, as to those applications which may be en-

terfained, * we conclude-that the same judicial review

should. be afforded in-service conscientious objection-

determinations as: are provided in the case of pre- ..

induction decisions, However, we hasten to point out

stricted to reviewing only the application file that

was considered by the Secretary and to determining ~

whether that file contains any evidence to support

the disapproval by the Secretary. The military judge

is not empowered to conduct a: trial de novo or to

consider new_evidence. Shaw, . Selective Service

Litigation and the 1067 Stat 48 Military Law Re:

“view . 33, 62-70 (1970), d the authorities cited -

therein. ie

Since the trial defense ccnmmnel asserted in the ‘mo-

tion to dismiss that it was contended that there was

no basis in fact for the Secretary’s disapproval of the. -

application, we conclude that the military judge’s :

reason for denying the motion to dismiss was incor-

rect, However, the denial of the motion by the mili- .— .

- tary judge was proper for another reason which pre- =

of cludes our ene relief td the. aprenaes,

- This provision was upheld by the Sea Court in

Clark v. Gabriel, 393 US 256 (1968).

tT Applications cannot be ‘entertained when based eolety on

-. conscientious objection which existed but was not claimed

prior to induction or enlistment: or when based solely on a —

conscientious objection that was claimed and denied by the

Selective Service System before induction. Department of ~~

- Defense Directive 1800.6, 10 May 1968, paragraph IVB2.

ssn ‘United States -v. Noyd, eupra, the Air Force”

eget Wa

‘76

regulation under consideration provided that a cori-

| Seientious objector was to be assigned duties provid-*

ing. “minimum conflict. with his professed beliefs”

while his application was pending consideration by ~

‘the Secretary. Paragraph VIB2, Department of De-

- fense Directive 1300.6, 10 May 1968, provides that:

“Pending decision on the case and to the extent

- "~—‘practicable, the person will be employed in duties

vhich involve the minimum conflict with his as-

_., serted beliefs.” (Emphasis added.) .

-. The Army regulations in force while. the appellant’s.- 7

| applications were pending contain similar provisions.

See paragraph 6, AR 635-20, 17 August 1968, and

the same paragraph of the same. regulation, dated

16 October 1967, 27 May 1968, 3 December 1968, and

22 January 1969. As we view the ‘regulations, they

. Contemplate relieving an applicant from performing

military tasks, such as training or inffructing, but

do not encompass relief from the duty of wearing the

uniform. Obviously, it is impracticable in the military

-- ,.» .@nvironment to permit the. applicaht to-cast off his

_. uniform. Thus, this case is distinguishable from

-Noyd where the applicant had previously been relieved

.. of serving as an instructor pending action on his ap-

plication. There, the legality of the order to fly as °

an instructor was dependent on whether the Setre-

_tary’s disapproval of the application. was lawful be-.

cause the order would not have been given except: for

ate that disapproval and the applicant was entitled to re-

lief from instructor duties pending the disapproval.

_ Here, the lawfulness of the order to wear a uniform

. did not depend on the legality of the Secretary’s de-

cision because the order was legal even if the Secre-

tary’s determination was illegal, that is, made with

. United States v, Bratcher, 18. USCMA 125,

125 (1969). In. our opinion, the order to

not comply. See United States v. Bagby, —— CMR

" —— (ACMR 1970), where this Court held an order

“to attend training” was a specific mandate and dis-

tinguished it from orders “to train” and “to resume

training.”

Assigned Error III is deemed meritorious. clin

consistent sentence results when a court-martial ad-

judges a punitive discharge and recommends adminis-

trative discharge in lieu thereof on the basis of the

_ game evidence which was available for consideration _

in adjudging the sentence. United States v. Dille-

muth, —— CMR —— (ACMR 1970). Here, as in

_ Dillemuth, the military judge could have recommend-. |

- ed an administrative separation without adjudging a -

bad-conduct discharge. We perceive no valid reason .

for changing the rule when the sentence is adjudged

by a military judge rather than by court members.

rks yi ee nye ea CuR -——- -

(ACMR. 1969). Accordingly, the ‘bad-conduet dis-

labor. for six ‘months and fortitage « of $100.00 pay |

per month for six months,

KELSO, Senior Judge, concurs.

Ire

8&9

NEMROW, J udge, concurring and dissenting:

> I concur with the determination by my brother

_ Judges that the findings of guilty of Charge II and

‘its specification (the unauthorized absence offense)

should be affirmed and that the sentence requires re-

assessment because of Assigned Error IIT.

os I also concur in their conclusion that the military oo,

_jJudge’s reason for denying the motion to dismiss was

' incorrect.. However, I disagree, in view of the special

circumstances in this case, with their holding that the _

order to appellant—“to put on. a proper military uni-

form”—was legal. —.

_ ° My review of the record leads me to conclude that

all the facts and circumstances relevant to the scena-

rio encompassing the giving of the order in question

clearly indicate that it suffered from the deficiency

afflicting the order in the Bratcher case (18 USCMA »

. 125, 839 CMR 125 (1969)).. The order in Bratcher

was “to perform duties as a duty soldier.” Reversing

Bratcher’s conviction, the Court stated the following: .

“The specifications and the stipulation in the

_ case at bar make it crystal clear that the order |

did not contemplate performance or nonperform-

- ance of some special function but rather it was

an order that the accused was to perform his

_ duties as ‘a soldier by obeying his superiors, an

, obligation he was already under by reason: of

his status as a soldier and as 9 subordinate to a

the Captain and the First Sergeant. .

. ‘[T he order, whether it be oral or writ-

tei be a pai mandate The ‘order’ in

, .

ee |

"this ease dealt with no specific subject as such

' but was only an exhortation to the accused to do

his duty as a soldier. No ‘order is needed for _ .

_. . that.” (Emphasis in original) =~ ee:

. This Court applying the principle of Bratcher, re-

'. versed the convictions in the following cases: United .

States v, Oldaker, —— CMR —— (1969); involving

an order to train; United States v. Wohle —_

CMR —— (1970), involving an order “to resume

_ training”; United States v. Orozco, —— CMR —-—

~ . (1970), involving an order “to start training.”

_ The foregoing .cases enjoin us to condemn : orders '

which are “far too general and all-inclusive in scope,”

that is, an order which does not constitute a specific

mandate, but merely exhorts onéto perform an obli-

_ gation that he is already under by reason of his status _

as a soldier. See United States v. Oldaker, supra. a

Here, appellant,.as a soldier on active duty, was

_ required to obey the provisions of AR 670-5,.dated =

12 February 1968, which read, in pertinent part, as

_ follows: e | |

- . “Thé- uniform will be worn when on duty by

all male Army personnel... . .” °

The real basis for the order can be gathered from.

the tenor of Major Rekowski’s testimony.. I note

_- _-“Q. [by defense’ counsel]: Would you please

detail for the court, Major Rekowski, the con- _

. tents of your conversation: with Private ‘Goguen —

__ otthe date the order was given? — 3

“A. Well, as I previously stated, as I can re

- call, the firat point of the discussion was the fact.

that his application had been denied and natural- =a

_ly I was interested in his ‘recent appearance in _

3 | - ‘. ‘80

Bese the federal court, I. think: ie mentioned at that -

time the matter wasn’t resolved in _that“area I~ a

_. then stated, well; however,:as far as the military

- is concerned your application has been denied and

that is a final application and therefore,-you are |

not to be treated as an applicant or potential co

and therefore, this hold status that he was in

to another unit. I then, told him that the first

step along this:direction was to get into proper

military uniform.

~ “Q. What was his reply to that? a

“A. . Well, he stated that his conscience would

not allow him to comply with that order. I again —

tried to explain it in different terms, I’m sure he —

understood the first time, but I wanted him to |

_. have, give him every opportunity to comply, eX- |

plain the dire consequences, the fact that he. wore -

_—a-uniform prior to this, why, now should he sud-

denly say no. He answered that while his appli-. -

cation was: pending he could play the game, so ta

° _ — he could comply with variois rules and , |

| ations, but now that the decision had been —

made he had to just live up to the dictates of his

_ conscience and he just couldn’t comply any more.

“Q: At that time, did he strike you as being

_ sincere in his statement?

. “A. His manner of presenting himself, his

tone of voice, it was sincere, yes.

I do not perceive from the entire testimonial record |

a specific mandate to appellant, but an order so inter-

twined with. appellant’s claim for conscientious ‘ob- —

jector status that it was, as described by ar Re-

-, kowski, merely an end to a ball game: .

- “Q.-Then, you are telling this court then that

after this Cocmeen with Private ; Goguen, know- |

a . - 4 : . 7 . Fi

ao |

ing hia past recied: kngpng hha jot retard | |

- from an absence and‘ owing that he had. also

_ filed a writ of habeas corpus in a.federal- court

and after continuously telling you he wouldn’t

_ put on a uniform, you thought by giving him an

-. order he would change his mind? |

“A. Yes, because he had run out of his alter- |

natives. Up until this time he had applications

.pending and there are, therefore, he had a certain ~

flexibility. Now,:the door had been closed, ‘the any 2

plication had been denied and therefore, this fle

ibility did not exist and I expect as 4 man who

puts in. an application, a man expects either a

yes or no answer. He must expect either.and he -

\ gota no answer, he must exhibit as a ‘man and

“must comply with the regulation. -

““Q. Why is that? : aie

“A. Why? Because we don’t play. in a game

and expect to win. We hope. to win, but it’s pos- -

sible we might lose and if we lose we must accept

. that as well. :

‘ “Q. In other words, because the Department

of the Army says he is not a conscientious od .

jector, does that change his status?

Accordingly, it is my view that the order concern-

ing the wearing of the. uniform was not lawful and

that! appellant’s conviction of Charge I and its speci-

- fication, as a matter of law, cannot stand.

. OFFICIAL:

/s/ William 0, Morris

ee . WILLIAM O. Morris

[SEAL] .. Captain, JAGC

Clerk of Court.

“Su. 's. covennment painrine orrice; 1971 ‘ 448076 212.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.