469 F.2d 773
UNITED STATES of America ex rel. Neil Bruce CHECKMAN,
Hon. Melvin LAIRD, Secretary of Defense, et al.,
No. 822, Docket 72-1361.
United States Court of Appeals,
Argued May 25, 1972.
Decided Oct. 27, 1972.
Donald L. Doernberg, New York City (Jeremiah S. Gutman, Levy, Gutman, Goldberg & Kaplan, New York City, on brief), for petitioner-appellant.
Daniel James Dillon, Asst. U. S. Atty. (Robert A. Morse, U. S. Atty., E. D. N. Y., David G. Trager, Asst. U. S. Atty., on brief), for respondents-appellees.
Before LEVENTHAL, FEINBERG and TIMBERS, Circuit Judges.
LEVENTHAL, Circuit Judge:
On May 6, 1971, appellant Checkman applied for discharge as a conscientious objector from the Reserve Officer's Training Corps (ROTC) at the First United States Army Instructor's Group, Polytechnic Institute in Brooklyn. By a divided vote, the Army's Conscientious Objector Review Board (CORB) denied his application in a memorandum of January 13, 1972. Appellant filed a petition for Habeas Corpus relief. The District Court dismissed his petition, and he appeals. We think dismissal of the petition, on the record as it now stands, was erroneous and we remand for further proceedings not inconsistent with this opinion.
I. FACTUAL BACKGROUND
Mr. Checkman enlisted in the Army ROTC unit at the Polytechnic Institute of Brooklyn in September 1969. At that time he was a full-time second year student at Brooklyn Law School. The preceding summer he had attended a sixweek basic training course at Fort Benning, Georgia. During the course of the next 20 months he satisfactorily completed the remaining requirements for commission as a Second Lieutenant in the U. S. Army Reserve, including attendance at the Advanced Summer Camp training at Indiantown Gap, Pennsylvania.
On May 6, 1971, Checkman filed an application for discharge as a conscientious objector pursuant to the provisions of Department of Defense Directive (DoD) 1300.6 and Army Regulation (AR) 135-25. The application states that at the time of his enlistment, he did not feel that he was, by reason of his religious training and belief, conscientiously opposed to participation in war in any form, within the meaning of 50 U.S.C.App. Sec. 456(j); that significant changes in his life and thinking described in his application, have resulted in such conscientious opposition.
As required by military regulation, DoD 1300.6.VI.C, D; and AR 135-25(6) (b)(1), (2), (3), Checkman was interviewed by the Deputy Staff Chaplain as to the nature and source of his conscientious objection, by Major James Weiss, who had been appointed Hearing Officer, and by a psychiatrist. The Chaplain, Lt. John Steavy, reported as follows:
[Checkman's] position is founded upon his opposition to war as a solution to international problems.
I have no question that he is completely sincere in his convictions.
These interviews were held May 18, 25 and June 1, 1971, and reports were duly filed. On May 26, 1971, the day after his interview with appellant, Major Weiss filed his report recommending the application for concientious objector status be disapproved.
The psychiatrist found him "a sincere sounding young man with no evidence of psychiatric illness or disease." The psychiatrist found no basis on which to recommend disposition of Checkman's application through medical channels.
Checkman's commanding officer, Lt. Col. Clarence Ruff, commented adversely on the application and forwarded it through military channels to the CORB. The CORB, on a 2-1 vote, recommended disapproval of the application in a memorandum dated January 13, 1972. It summarized its reasons as follows:
The Board believed that Cadet Checkman's application was based on grounds of policy, pragmatism and expediency. Moreover, the Board felt that Applicant was objecting to the war in Viet Nam rather than to participation in war in any form.
Since the Review Board gave no reasons for its finding of Rosengart's insincerity of belief, . . . we have understaken our own independent search of the record for facts upon which the Army determination should be appraised.
In Rosengart the court did not focus on the Army regulations requiring reasons. The majority opinion refers to the fact that no reasons were given by the Army Review Board for its finding of insincerity, without any allusion to the requirements of AR 135-25(10), or indication of awareness that this was contrary to law.
When certiorari was sought, the Supreme Court vacated this court's judgment in Rosengart, see 405 U.S. 908, 92 S.Ct. 931, 30 L.Ed.2d 779 (1972), in response to the Solicitor General's concession that the Review Board's decision was not grounded, as this court had supposed, on a finding that Rosengart's opposition to war was not sincere. The Solicitor General put it that it was error for this court to have searched the record for evidence to support the finding of insincerity when that was a ground not taken by the Board itself. Compare Benway v. Barnhill, 300 F. Supp. 483 (D.R.I.1969). The Supreme Court remanded the case to this court "for reconsideration in light of the suggestions of the Solicitor General and upon independent examination of the entire record." 405 U.S. 908, 92 S.Ct. 931 (1972).
We have carefully considered United States ex rel. Zelman v. Carpenter, 457 F.2d 621 (2d Cir. 1972), and Weissman v. Officer of the Day, 444 F.2d 1326 (2d Cir. 1971), but find critical distinctions from those cases, where the court was concerned with the question posed by selective service boards that had not given any reasons for rejecting a "hardship" classification, and expressly relied on the fact that until the change in statute on September 28, 1971 "the draft board was not required to give any reasons for its decisions" (see 457 F.2d at 622, note 1). We need not consider the effect upon those rulings of Joseph v. United States, supra, which was issued the same day as Zelman, and Fein v. Selective Service System, 405 U.S. 365, 92 S.Ct. 1062, 31 L.Ed.2d 298 (1972), discussed above. In any event, the CORB has been and is governed by a regulation expressly requiring a statement of reasons for denial of an inservice conscientious objection claim. Moreover, the issue of review when a draft board gives no statement of reasons, leading the court to explore "the grounds upon which the board might have relied" (457 F.2d at 624, 444 F.2d at 1328) is significantly different from the issue presented in a case like this one, where the board has given reasons that are faulty in law. The latter is the problem underlying the Solicitor General's concession in Rosengart, supra, and the Supreme Court's order vacating the judgment of this court.
The proper focus of a reviewing court is on the reasons given by the CORB and not on reasons that may come to light if and when a court rummages throughout the record in an effort to reconstruct on what basis the board might have decided the matter. With this as our point of departure, we proceed to a consideration of the CORB's adverse decision on Checkman's application and the reasons it gave for that decision.
C. Board determination that appellant's beliefs were based on "policy, pragmatism and expediency."
The main thrust of CORB's memorandum was in support of its finding: "The Board believed that Cadet Checkman's application was based on grounds of policy, pragmatism and expediency." The phrase derives, of course, from the statement in Welsh v. United States, 398 U.S. 333, 342-343, 90 S.Ct. 1792, 26 L. Ed.2d 308 (1970), that conscientious objection status is not intended to be available to
those whose objection to war does not rest at all upon moral, ethical, or religious principle but instead rests solely upon considerations of policy, pragmatism, or expediency.
The Board stated that its recommendation of denial was based on statements in the application, and the recommendation of the hearing officer and the commanding officer. We shall consider these in turn.
Checkman's application prima facie satisfies the requirements for CO status, including the requirement that beliefs derive from moral, ethical or religious, rather than policy or pragmatic sources.
The CORB stated that the application indicates it "is based on policy grounds." We herewith present the passage quoted by the CORB ((AA 56) and-in brackets-the sentences immediately following (AA 13):
After [some] careful thought one is led to recognize that political beliefs cannot be separated from moral beliefs. As each "political" question presents itself, an individual who thinks with his heart as well as his head is let to make decisions that are based upon his own morality. [I am unable to distinguish between a political and a moral question. Before I vote for a particular candidate, I look to his political pronouncements and record. I then automatically examine my sense of right and wrong and choose accordingly. What is morally correct must be what is politically right. When politicas [sic] becomes amoral it must be discarded by a moral person, and therefore political expediency in place of morality is a game in which I cannot play.]
The CORB never identified what it is about that passage that undercuts Checkman's contention that his beliefs have an ethical, moral source. We think the fair implication of the language quoted by the CORB is that, for Checkman, political judgments cannot control if they are not derived from moral beliefs. But if there was a basis of misunderstanding it came from taking the quoted sentence by itself, ripped from context. The entire passage, including the bracketed material, makes it quite clear that the beliefs are rooted in morality and ethics, and are not "based on policy grounds" as the CORB stated.
The only other sources referred to by CORB for this facet of its decision were adverse recommendations by the hearing officer, Major Weiss, and the commanding officer, Col. Ruff, against approval of Checkman's application. But these officers' comments were not in turn supported by reference to factual evidence. The "mere parrotting . . . of a mere ipse dixit," is not enough, see United States v. Corliss, 280 F.2d 808, 814 (2d Cir.), cert. denied, 364 U.S. 884, 81 S.Ct. 167, 5 L.Ed.2d 105 (1960). Here we have only a bare CORB reference to the officers' ultimate conclusion. We cannot sustain the CORB by reference to the statements made by the officers without some indication of their factual basis.
On the record before us, there is no "basis in fact" identified in the CORB's memorandum for a finding of "policy, pragmatism and expediency" short of a finding that his representation as to what his beliefs actually are was not sincere. That, of course, is a separate issue, and will be considered separately.
D. Board finding of selective objection to war
Checkman's application prima facie asserts an objection to all war, in any form. The CORB cites passages showing that (a) during his second year in law school the focus of his concern was on the war in Vietnam rather than on war in general and (b) in his application appellant stated (AA 18): that in the event of an attack on the United States, while he would not join in the defense of the nation, he "would probably take steps to personally defend my family and friends."
Checkman's beliefs during his second year in law school do not relate to the relevant time period. His application describes his beliefs as having evolved from selective objection in his early law school period to total objection by the time of his last semester, the point in time at which his application was filed. This point is given emphasis by the settled law of this circuit concerning a "recently matured conscientious objection"-that the "ascension to conscientious objection" is a change in status, and the point in time when the beliefs form is a circumstance beyond the control of the individual involved. Paszel v. Laird, supra, 426 F.2d at 1172.
As for CORB's reliance on appellant's statement that his opposition to war would not prevent him from personally defending family and friends from aggressive attack, the government has forthrightly conceded in its brief, as it must, that such reliance was patently improper and does not afford a basis for the CORB's actions. United States v. Purvis, 403 F.2d 555, 563 (2d Cir. 1968); United States v. Mantoine (71 Cr. 662, S.D.N.Y., Jan. 5, 1972).
E. Board's determination of insincerity
1. The CORB's finding of insincerity was not accompanied by any reasons, as required by DoD 1300.6 and AR 135-25. That alone precludes affirmance of its decision on grounds of insincerity, on the record as it stands. United States v. Lenhard, supra; Paszel v. Laird, supra. See Joseph v. United States, supra.
2. In an effort to reconstruct a basisin-fact from the record, the Government and the court below referred to Major Weiss's statement that in his opinion "applicant changes his moral values to meet the situation," Government brief at 6. The District Court referred to a similar statement made by Col. Ruff. Manifestly, the requirement of a CORB statement of reasons cannot be satisfied by a reference to officers' reports unless those reports contain a statement of reasons; and here the officers' reports gave no reasons for what are otherwise bare conclusory statements. The statement of reasons-by the CORB, or by these officers-cannot consist, simpliciter, of a mere rejection of a prima facie presentation of conscientious objection without reference to evidence in the record. Kessler v. United States, 406 F.2d 151, 156 (5th Cir. 1969). See Dickinson v. United States, 346 U.S. 389, 74 S.Ct. 152, 98 L.Ed. 132 (1953). We revert to the admonition in United States v. Corliss, supra, against "mere ipse dixits."
3. The Government also claims that support for the CORB's insincerity finding is provided by the Statement of Capt. Charles Schauss, one of Checkman's ROTC instructors, and by the timing of his application for discharge.
Captain Schauss's Statement
Capt. Schauss's Statement, reproduced in the margin, is an account of a conversation he had with Checkman in mid-December 1970. This was not alluded to by either the CORB or the Hearing Officer. None of the statements of appellant Checkman related in this document contradict his characterization of his beliefs as morally derived and his opposition to war as not selective. Checkman's statement that his military obligations made it difficult to obtain employment with a law firm simply records a fact of life, at that time, for many young men with pending military obligations. As to Checkman's statement that he had enrolled in ROTC in order to be deferred through law school, this is patently consistent with his account of his gradual, post-ROTC enrollment crystallization of view.
Furthermore, we cannot blind ourselves to the reality that a generous dollop of self-interest motivates many applicants for ROTC-perhaps a desire to delay the date of military service, perhaps a quest for a better berth in which to serve-and such candid remarks cannot fairly be taken as reflecting a kind of underlying character deficiency, especially when no such reference or inference was expressed by the Board.
We turn to Capt. Schauss's recounting that Checkman said that he did not want to undertake military service because to do so would interfere with his law career.
We need not consider whether Capt. Schauss's Statement might have formed the basis for an adverse recommendation by a CORB which expressly referred to the Statement and furnished an analysis revealing its significance and pertinence to the inferences drawn. Whatever concepts of deference to the executive might be applicable in such a case, in the case at hand all we have is a reference by counsel (not the CORB) to Capt. Schauss's Statement; and we cannot be confident that this is what the CORB had in mind as its reason for denial of the claims.
Timing of Application
The District Court, citing Dix, noted that "the Board could properly consider the lateness in filing the application." We agree. In Dix this court said, 449 F.2d at 318:
Moreover, Dix's application was not filed until after he had been ordered to Vietnam. Such belatedness was properly considered in assessing Dix's sincerity. United States v. Gearey, 379 F.2d 915, 919 (2d Cir.), cert. denied, 389 U.S. 959 [88 S.Ct. 335, 19 L.Ed.2d 368] (1967).
But the difficulty is that in this case-unlike Dix or Geary-we have no indication in the record that lateness was "considered" by the Board and relied on in rejecting appellant's claim. We have already set forth in some detail the basis of the Board's memorandum, and there is not a word about lateness. We do not require, and we do not purport to require, that the CORB set forth meticulous findings with the same care and polish as a district court. But the CORB does have the benefit of a hearing conducted by, and a recommendation made by, a hearing officer "knowledgeable in policies and procedures relating to conscientious objector matters," United States ex rel. Donham v. Resor, supra, 436 F.2d at 754. We must have enough indication of the reasons for adverse determination to discern the substance of the decision under review, and determine-without any weighing of evidence or facts-that it does not depart from the applicable rules of law.
As Donham makes clear, the issue of timing is not a simple one-especially in the context of a claim of evolving views-and will rarely if ever serve as a sole basis for denying a CO claim. Donham also stresses that while there is no requirement of technicalities, there is a requirement of adherence to a "policy of reasonable common sense fairness."
These considerations, in the context of a regulation requiring that reasons be stated, simply do not permit us to sustain a CORB decision on the conjecture that it could have been based, or at least materially supported, by the timing factor, when the objective record is barren of any reference whatever to that factor. Of course the official or board is not required, or even expected, to discuss every item of fact or opinion included in the record; but the reasons required by rule and regulation must at least embrace the major points underlying the decision, and identify the reaction resulting in the adverse decision.
F. Relationship of Requirements of Basis in Fact and Reasons
The requirement that the CORB determination have a "basis in fact" in objective evidence is one that is satisfied whether or not that basis is set forth in the formal opinion of the CORB, so long as it appears in the record. But the "basis in fact" doctrine must be taken together with the separate legal requirement of reasons. The result is that the material to be found in the record-which under the basis in fact doctrine need not be as comprehensive as "substantial evidence," though it cannot be a mere "scintilla"-need not be identified by the CORB but must relate to the "reasons" stated by the CORB. Otherwise there is the plain danger of a judicial decision on grounds not taken by the CORB, a danger highlighted by the Solicitor General's memorandum in Rosengart.
The regulation's requirement that the CORB state its "reasons" is a requirement of "logical reasons," as Judge Lumbard noted in his dissenting opinion in Rosengart v. laird, supra, 449 F.2d at 537 and n. 11. This is a meaningful requirement, and one that cannot meaningfully be satisfied by a bare recitation by the CORB of the ultimate statutory criteria-which in the case of conscientious objection require (a) opposition to all war that is (b) ethically or morally derived and (c) sincerely held. In the last analysis, what is comprehended by "reasons" is itself governed by a rule of reason, but it is essentially a requirement that the salient facts be identified. It does not necessarily require an analysis or even reference to the individual items in the record underlying the determination-though ordinarily the "reasons" of the CORB will include some reference to e. g., affidavits, or reports of interview, etc., that have led the CORB to its conclusion-and individual items of "objective" evidence in the record will be available to show that the CORB's determination has a "basis in fact" even though not referred to by the CORB.
We conclude that the order dismissing appellant's petition for habeas corpus relief cannot be affirmed. While an applicant with an in-service claim of conscientious objection is not entitled to a letter-perfect proceeding, he must be accorded a consideration that is fair and in accordance with requirements of law.
The record reveals patent and prominent errors and confusions, on the part of the CORB, that preclude any judicial judgment that the board accorded such consideration to appellant's claim.
If we were confronted only with the inadequacies of the findings on sincerity, where the Government claims that factors and evidence in the record were taken into account but there may have been only an error of omission in the failure to identify these in the reasons required by law, we might give consideration to an order that permitted amplification at a remand hearing by the CORB members, along the lines suggested in United States v. Gearey, 368 F.2d 144, 151 (2d Cir. 1966) and United States v. Deere, 428 F.2d 1119 (2d Cir. 1970).
But there is no binding requirement that such a procedure be followed when the circumstances of the case indicate that there is no substantial possibility of an acceptable reconstruction of the basis for the classification decision by means of the testimony of the decisionmaking officials. United States v. Jakobson, 325 F.2d 409, 417 (2d Cir. 1963), aff'd sub nom., United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965).
Here there are errors of commission-not debatable or technical inadequacies, but palpable misunderstandings and confusions-pervading the findings of expediency and selective opposition. The general requirement that a court concerned with the validity of an executive determination appraise whether the invalid reasons have not infected the entire decision must be given at least modest scope in the difficult area of conscientious objection cases.
In the case before us, where the CORB decision stands without sufficiently clear legal support, we conclude that sound exercise of the appellate function, see 28 U.S.C. Sec. 2106, requires that we remand the case to the District Court with instructions to grant appellant's petition four weeks hence (with discretion to extend the time), unless within that time the Government arranges for a new CORB consideration and processing on a basis that is shorn of the errors identified above.
Reversed and remanded.