# Opinion — Parisi v. Davidson > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0323%3A7 ## Record - **Collection:** Supreme Court brief - **Document type:** Opinion - **Published:** January 1, 1972 - **Citation:** 405 U.S. 34 ## Text 34 OCTOBER TERM, 1971 - >" gytabus ” 405 0.8. PARISI v. DAVIDSON ET AL. CERTIORARI TO THE UNITED STATES COURT oF APPEALS FOR THE NINTH CIRCUIT 7 _ No. 70-91. Argued October 19-20, 19%1—Decided February 23, 1972 ; ‘Petitioner, a member of the armed forces, sacilial unsuccessfully for " discharge ‘as a conscientious objector. After he had exhaustéd all _ his administrative remedies, he filed a habeas corpus petition in a Federal District Court, claiming that the Army’s denial of his _ application was without basis in fact. Thereafter court-martial es 4 ‘charges were brought against him, and the District Court ordered \ { _ consideration of the petition deferred until final determination of a | the court-martial proceedings. The Court of Appeals affirmed. Nee Held: The District Court should not have stayed its hand in this ae ease. Pp. 37-45. ; NON - fey Rah eieanalive wdniniatrative remains Wave let exhausted an by petitioner. -Pp. 37-39. ' (b) Since the military judicial system in its, processing - thé A charge could not provide the discharge sought by ‘ _ petitioner with promptness and certainty, the District Court re to’ determine the habeas corpus. claim or the - _ pendency of fk court-martial proceedings. Pp. ne 435 F. 2d 200, reversed.~ mee en Srewart, J ., delivered the opinion of ike Court, in which ‘Buncze, : C. J’, and BrenNAN, Wuite, MarsHat; and BLackMun, JJ., joined. Dovwe.as, J., filed an opinion concurring in the result, post, p. 46. PowELL ont ReunNauistT, JJ., took no part in the consideration or decision of the case. : = oe Ha Richard L: Gof argued the cause -for petitioner. . With . ee him on the briefs were George A. Blackstone and Stephen - ~V. Bomse. 7 William Terry Bray-argued the cause for respondents. i.» ‘On-the brigf ‘were-Solicitor General’ Griswold, Assistant on ets Attorney General Mardian, William, Bradford Reynolds * Robert L. Keuch, and Robert. A. Crandall. / & e PARISI »v. DAVIDSON 35 34 | Opinion of the Court Mr. Justice STEWART delivered the opinion of the When a member of the armed forces has applied for - a discharge as a conscientious objector and has exhausted .all avenues of administrative relief, it is now settled that” - he’ may seek habeas corpus relief in a federal district court on the ground that the denial of his application had no basis in fact. The question in this case is _ whether the district court must stay. its hand when " court-martial proceedings ‘are pending against the | The petitioner, Joseph Parisi, was inducted into the - Army as a draftee in August 1968. Nine months later ‘he applied for discharge as a’ conscientious objector, — "claiming that earlier doubts about military service had crystallized into a firm conviction that any form of mili- tary activity conflicted irreconcilably with his. religious beliefs. He .was interviewed by the base chaplain, the _- base psychiatrist, and a special hearing officer. ‘They all attested to the petitioner’s sincerity and to the religious content of his professed beliefs. In addition, the com- manding general of the petitioner’s Army training center and the commander of the Army hospital recommended that the petitioner be discharged as a conscientious: objector. His immediate commanding officer, an Army | captain, disagreed, recommending disapproval of the ap- _Plication on the ground that the’ petitioner’s ‘beliefs — were based on essentially political, sociological, or philo- _ ~ Sophical views; or on a merely personal moral code. In November 1969, the Department of the Army de- —~ - nied the petitioner conscientious objector status, on the _ grounds that his professed: beliefs had become fixed prior - ~ to entering the service and that his opposition to war _ was not truly based upon his religious beliefs. On No-'. vember 24, 4969, the petitioner applied. to the Army Board. for Correction of Military Records (hereafter 3 =——S—S. OCTOBER TERM, 1971. Opinion of the Court | , 405 U.8. - sometimes ABCMR). for. administrative review of that ‘ ; determination. _. Four days later the dikitiones seaiiialia the present habeas corpus proceeding in the United States District Court for the Northern District of California, claiming ‘that the Army’s denial of his conscientious objector ap- ‘plication was without basis in fact. He sought dis- injunction to prevent his transfer out of the jurisdiction of the District Court and to prohibit further training preparatory to being transferred to Vietnam. The Dis- trict Court declined at that time to consider the merits 4 of the habeas corpus petition, but it retained jurisdic- tion pending a decision by the ABCMR, and in the charge from the: Army and requested a preliminary meantime enjoined Army duthorities from requiring the - petitioner ‘to. Participate i in activity or training beyond his current nongombatant duties... Shortly thereafter the petitioner received ondate 7 report to Fort. Lewis, Washington, for deployment to. Vietnam, where he was to perform noncombatant duties similar to those that had been assigned to him in‘ this | * gountry. He sought a stay of this.redeployment order : pending appeal of the denial of habeas corpus, but his ‘application was denied by the Court of Appeals, on’ the condition that the Army would produce him if the appeal. should result in his favor. A similar stay appli- . - cation was subsequently denied by Mk. Justice DovGias: as Ninth Circuit Justice, Parisi v. Davidson, 396 U. s. 1233. The petitioner then reported to:Fort Lewis. He : ‘ - refused, however, to obey a military order to-board a plane for Vietnam. As a result, he-was charged with - violating Art. 90 of the Uniform Code of Military‘ Jus- tive, 10 U. S. C. § 890, and; on April 8, 1970, a court- martial convicted him of that. military offense." - "i hn ta ot ea seg le pein ca, on pp tain ie Ks thea ae ° ° mo @. e =f Army Board for Correction of Military Records notified the petitioner that it had rejetted his application for relief from the Army’s denial of his conscientious objector application. The District Court then ordered the Army to show cause why the pending writ of habeas corpus should not issue. On the Government’s motion,. the District Court, on : 31, 1970, entered an order deferring consideration “of habeas corpus petition’ until final determination of the criminal charge then _ pending in the military court system. The Court of Appeals for the Ninth Circuit affirmed this order, con- _ cluding that “habeas proceedings were properly stayed * pending the final conclusion of Parisi’s military trial and his appeals therefrom,” Parisi v. Davidson, 435 F. 2d 299, ‘ 302. We granted certiorari, 402 U. S. 942. “In affirming the stay of the petitioner’s federal habeas corpus proceeding until. completion of the. military courts’ action; the Court of Appeals relied on the related ~ doctrines of. exhaustion of alternative remedies and - comity between.the federal civilian courts and the mili- tary system of justice. We hold today that neither of these doctrines required a stay of the habeas corpus | - proceedings in this case. é With respect to available adninistiotive sila there can be no doubt that the petitioner has fully met the demands of the doctrine of exhaustion—a doctrine _ that must be applied i in each. case with an “understand- -. ing of its purposes and of the particular administrative scheme involved.” McKart v. United States, 395 U. S: _ 185, 193. The basic purpose of the exhaustion doctrine _ is to allow an administrative agency to perform functions within its special competence—to make a factual record, to apply its expertise, and to correct its own errors so ~ as to moot Jodicial controversies. ae at 194-195; Fa ; : ae 38 . OCTOBER TERM, 1971 Opinion of the Court 405 U.8. McGee v. ‘United States, 402 U:. S. 479, 495: K. Devs, Administrative Law Treatise § 20.01 et seg. (Supp. 1970). - In this case the petitioner fully complied with Army .. - Regulation 635-20, which dictates the procedures to bé ~ followed by a serviceman seeking classification as a con- * - scientious objector on the basis of beliefs that develop ~ after induction.’ Moreover, ‘following a rule of . the Ninth Circuit then in effect? he went further’ and ap- ° | -pealed to the Army Board for. Correction, of’ Military . | Records.‘ : The procedures and corrective opportunities ) "The Tight of person in the armed forees to be’ clasified as a _gonscientious objector after induction is bottomed on Department of Defense Directive No. 1300.6 (May 10, 1968), issued by. the . _ Secretary of Defense-pursuant to his authority under, 10 U. 8S. 2 - $133. - The purpose of the directive is to provide “uniform pro-, ‘ cedures for the utilizationef conscientious objectors in the Armed © Forces and consideration of requests for discharge on the grounds of conscientious objection.” Army Regulation 635-20 was issued | to effectuate the broader policies announced in DOD Directive No. 1300.6. 3 Under the’ rule of Craycroft v. Ferrall, 408 F. 2d 587 (CA9 1969), the petitioner was required to ‘appeal the Department of the Army’s decision to the civilian. Army Board for Correction of : Military Records in order to exhaust military administrative reme- dies and have access to federal court. Current governmental policy rejects Craycroft. Compliance with Army Regulation 635-20, not perfection of an ABCMR appeal, marks the point when military administrative procedures have been exhausted. .Department of Justice Memo. No. 652 (Oct. 23, 1969). In Craycroft v. Ferrall, 897 U.S. 335, this Court vacated the judgment of the Ninth Circuit that the petitioner there had to appesl to the Board for the Correction of Naval Records before proceeding in federal court. But our decision’ was announced on March 30, 1970, more than four - months after the present ‘petitioner had appealed to the ABCMR. 4In 1946, Congress enacted legislation empowering the service secretaries, acting through boards of civilian officers of their respec- _ tive departments, to alfer military records when necessary to pre- vent injustice. Legislative Reorganization Act of 1946, § 207, 60 sine 837, se ses, web Aid 116, 10 U. 8. C. § 1552 (1952 ” PARISI». DAVIDSON: =D a4 . oe Opinion of the Court of et Siilieeny administrative apparatus had thus been wholly utilized at the time the- District Court entered ‘its order deferring consideration of the Petitioner's habeas _ corpus application. It is clear, therefore, that, if the court-martial charge had not intervened, the District Court would have- been . wrong in not proceeding to an , expeditious consideration of the merits of the petitioner’s claim. For the writ of habeas corpus has long been recognized as the appro- © priate remedy for servicemen who claim to be unlawfully retained in the armed forces. See,.e. g., Eagles v. Sam- ‘uels, 329 U. S. 304, 312; Oestereich v. Selective Service Board, 393 U. S. 233, 235; Schlanger v. Seamans, 401. U. S. 487, 489. And, as stated at the outSet, that writ - is available to consider the plea of an -in-serviee applicant — for discharge as. a conscientious ‘objector who claims that* exhaustion of. military administrative procedures. has -- led only to a factually baseless denial of his application. In-re Kelly, 401 F. 2d 211 (CAS); : Hammond v. ae, 398 F. 2d 705 (CA2).° But since a court-martial charge was pending against the petitioner when. he sought habeas corpus in March 1970, the respondents submit that the Court of Appeals was correct in sera: that the District’ Court ‘must ed, Supp. They are convened to adjudicate charges of criminal vio- - lations of. military ‘law. It is true that the Court of Military Appeals has held that a soldier charged in a - court-martial with refusal to obey a lawful order may, — | in certain limited circumstances, defend upon the ground _. that the order was not lawful because he had wrongfully ‘been denied an administrative discharge as a conscién- . _ tious objector. United States v. Noyd,18U.S.C.M.A. _ 483, 40 C. M. R. 195.° The scope of the Noyd doctrine __ ., is narrow, United States v. Wilson, 19 U. 8. C. M. A, 100, = ® Army Regulation 635-20 provides that | “individuals who have submitted formal applications [for con- | ‘PARISI ». DAVIDSON tae 4 | rie en Jno _ 41. C. M. R. 100, and its present vitality not wholly clear, ited States v. Stewart, 20 U. S. C.:M. A, 272, 48 Kod R. 112. | A Noyd defense, therefore, would be avail- able, even arguably, in an extremely limited category of | _ court-martial proceedings: - But even though we proceed Qn the assumption that Noyd offered this petitioner a potential affirmative defense to the court-martial charge brought against him,” the fact remains that the Noyd . '. doctrine offers, at ‘best, né more than a defense to a criminal charge. Like any other legal or factual de- ~ fense, it would, if successfully asserted. at trial or on ap- peal, entitle: the defendant to, only an &cquittal *—not to the discharge from military service that he seeks in the habeas corpus proceeding. The respondents acknowledge, as they must, the. lim- . _ ited function of a Noyd defense in the trial and appeal of the court-martial proceeding itself. But they suggest _ that, if the military courts should eventually acquit the petitionet on.the ground of his Noyd defense, then the ‘petitioner. may have “an available remedy by way. of habeas corpus. in the Court ‘Of Military Appeals.”* — In support of this suggestion, the respondents point to © the All Writs Act, 28 U. S. C. § 1651 (a), and to cases _ finding that “the. ruling of the Secréary of the Army was: not _ arbitrary, capricious, unreasonable, or an abusive) [sic] discretion.” = We have been referred to no reported i court decision (including Noyd itself) that has yet acquitted a defendant upon the | ~ If the military courts should ‘ultimately aequit the petitioder ©. on grounds other than wrongful denial of his conscientious objector application, the respondents acknowledge that he could mot seek habeas corpus in the military judicial system. -In this event, there-‘ seeks in the military court system. =, 7 \ “a. OCTOBER TERM, 1971. Opinion of the Court 2 AO « Bh "Opinion of the Court : ment of the Court of Appeals and remand the case to ‘PARISL'»: DAVIDSON = the District Court with directions to give expeditious consideration to the merits of the petitioner’s habeas corpus application. . ; ee] In holding as we do today that the pendency of eourt- martial proceedings must not delay a federal district _° court’s prompt determination ination of the conscientious objec- tor claim of a serviceman who has exhausted all admin- respect in this Nation for valid ‘conscientious objection - tomilitary service. Seé 50 U. 8:C. App. § 456 (j); United States v. Seeger, 380. U. 8. 163.% As the Defense De- partment itself has recognized, “the Congress has . deemed it more essential to respect a man’s religious : - beliefs than to force him to serve in the Armed Forces.” _ Department of Defense Directive No. ‘1800.6 (May 10, 1968); disobedience of a lawful order. 3 could proceed concurrently. See n. 15, infra. Needless fo say, the \ slantisas Objector: Resoyeition in the Usted tietes, 80 Ges. Wash. a ~ plu ™ 4 aera am QCTOBER TERM, 1971 - Dowatas, J, concurring i result. 405 U.S. oe But our decision today should not’ be understood’ ais impinging upon the basic principles of comity that must’ prevail between civilian courts and the military judicial - _ See, e. g., Noyd v. Bond, 395 U: 8. 683; Burns .v. Wilson; 346 US. 137; Orloff v: Willoughby, 345 U.S. - 83; Gusik v. Schilder, 340 U. S. 128. Accordingly, a a _ federal district court, even though upholding the merits . of the conscientious objector claim of a serviceman | against whom court-martial charges are pending, should- ‘give careful consideration to the appropriate demands of — in effectuating its habeas: corpus decree.* —~ . ste. ? The judgwpent: is reversed. — vs MR. Justice ‘Powis: and ‘Ma JUSTICE Rinnai . fay took no part ‘in the corisideration or decision of thig case. - “ = er - 34 pe: . Dovaras, J, condirting in resilt - keeping of. the military. Civil liberty and the military regime have an “antagonism” that. is “irreconcilable.” E; parte Milligan, 4 Wall., at 124, 125. - When the mili- steps over, those bounds, it leaves the area of its | expertise and forsakes its domain.’ The matter then be- , comes one for civilian courts to resolve, consistent with _ the statutes: and with the Constitution. ie Co One ate * Another factor militating against the Court’s reliance on “comity” . a ing the insulation of the military justice’system from civilian review is the enormous power of the military in modern American Sie es pect A “From an initial authorized strength of well under one thousand, _ Our army alone has grown into a behemoth numbering well over _ & million men even in time of ina] peace. No longer does the military lie dormant and unnoticed for! years on end, coming to the un attention. of the typical citizen only in time of war. Today every _ Inale resident is a potential ‘soldier, sailor, or airman; and: it has been estimated that even in time of peace such service occupies ‘at least four percent-of the adult life of thé average American reaching draft _ ., age.’ As Chief Justice Warren recently observed : ‘g,, When the authority of the military has such a sweeping capacity for affecting the lives of our citizenry, the wisdom of treating the =. ‘military establishment as‘an enclave beyond the reach of the ‘civilian © courts almost inevitably is drawn into question.’ [ Warren, The Bill — of Rights. and. the Military, 37.N. Y. U. L. Rev. 181, 188:}” ~~ Comment, God, the Army, and Judicial Review:-The In-Service - Conscientious Objector, 56 Calif. L. Rev. 379, 446-447. PARISI v. DAVIDSON 2 sss ee --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0323%3A7. Public record. Not legal advice.