Application of John Michael Speer v. Commander G. H. Hedrick

419 F.2d 804

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 22, 1969
• Docket: 24540
• Status: Published

Opinions

PER CURIAM:

Petitioner, appellant herein, has appealed from a district court order denying his petition for a Writ of Habeas Corpus.

Petitioner enlisted in the United States Naval Reserve on July 8, 1966, and subsequently enlisted in the United States Navy on October 25, 1966. He completed recruit training on January 26, 1967, and completed a course for hospital corpsmen on May 18, 1967. On June 6, 1967 he completed rifle and pistol training.

On December 31, 1967 petitioner received transfer orders to Vietnam. On May 13, 1968 he failed to report for transfer to Vietnam and was on unauthorized leave until June 25, 1968, when he surrendered to Naval authorities. He was subsequently court martialed and confined, pursuant to sentence, from August 28, to October 16, 1968.

On December 18, 1968 petitioner formally applied for discharge as a conscientious objector. The Conscientious Objector Board in the Navy Bureau of Personnel recommended denial of the application on the basis that petitioner’s beliefs were not based on religious principles. Petitioner’s commanding officer believed him sincere. However, the fact that he had completed instruction in the use of deadly weapons after his beliefs had allegedly formed, and that he sought discharge as a conscientious objector only after having been ordered to a combat zone, tended to offset the opinion of that officer.

At the habeas corpus hearing thereafter, the district judge found that an adequate basis in fact did exist for the Navy’s denial of petitioner’s application.

Assuming, but not deciding, that the nature of petitioner’s restraint gave jurisdiction to the district court to hear the application for a writ of habeas corpus under 28 U.S.C. § 2241, and there being abundant facts in the record to support the finding of the district judge, we therefore affirm.