Albert v. Frisby v. General Stanley Larsen

486 F.2d 244

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 28, 1973
• Docket: 71-2771
• Status: Published

Opinions

OPINION

Before MERRILL and CARTER, Circuit Judges, and EAST, District Judge.

*

PER CURIAM:

The petitioner-appellee Frisby was inducted into the Army on June 8, 1970. He became conscientiously opposed to personal armed combat and applied for reassignment to non-combatant duties under (AR) 600-200. To support the application Frisby presented his statements and documentary evidence communicating and expostulating his religious belief in existence of and the Deity’s establishment and sanctification of all life. The Army officials found Fris-by’s religious beliefs to be “sincerely and deeply” held, speedily approved and reassigned him to training as a medical corpsman on November 25 following.

After some days of exposure to the reassignment duties and his readings of Army field manuals, Frisby concluded that he as a medical corpsman in combat would be involved not as a humanitarian helping the sick and wounded generally, but on the contrary he would be actively assisting the combat operations under order to favor “those patients who can be returned to immediate duty, rather than those more seriously injured.”

Frisby thereupon applied for discharge under (AR) 635-20 on the following December 14th. A hearing officer found Frisby to be “insincere” in his beliefs as asserted, and extended, and the Conscientious Objector Review Board (CORB) on April 12, 1971, accepted the hearing officer’s finding and rationale in denying the application for the reason that Frisby lacked the “depth of conviction to qualify for discharge.”

The hearing officer’s finding of “insincerity” of religious beliefs was based upon essentially the same evidence and is completely at variance with the Army officials’ findings and conclusions in granting the status of conscientious objector to Frisby only a few weeks before and cannot stand.

The extension of Frisby’s religious beliefs in opposition to personal combat duties to include the duties as a medical corpsman, involves a personalized reading of the Army field manuals and understanding of the duties required, and is a recognized permissible concept. United States v. Newton, 435 F.2d 671 (9th Cir. 1970).

Frisby’s statements and documentary evidence before the hearing officer presented a prima facie showing of his personalized rational extension of his religious belief. The record before the hearing officer and CORB is devoid of any evidence in opposition to Frisby’s statement and documentary evidence in support of the prima facie case. The hearing officer’s appraisal of Frisby’s presentation and appearance which caused him to disbelieve Frisby has no factual foundation in the record. The timing, or brief lapse of time between Frisby’s two applications is not viable or probative evidence in and of itself to support any inference adverse to Fris-by’s “sincerely and deeply” held religious beliefs. Newton, supra, at 674.

We conclude that the hearing officer’s findings of insincerity are not supported by any evidence and were arbitrarily made and further that CORB’s denial of Frisby’s application for discharge was unlawful and invalid. Newton, supra. The District Court’s order granting writ of habeas corpus entered on August 4, 1971, 330 F.Supp. 545, is affirmed.

Honorable William G. East, Senior United States District Judge for the District of Oregon, sitting by designation.