Cohen v. Laird

439 F.2d 866

Opinions

BOREMAN, Circuit Judge:

I

The members of this panel are in agreement that there was a basis in fact for denial of the applications for discharge of Cohen, Gaydos and Medina-Figueroa as conscientious objectors. Upon a review of the record, the briefs and oral arguments of counsel, we affirm the denial of relief as to these appellants named above upon the opinion of the district court, as reported in Cohen v. Laird, 315 F.Supp. 1265 (D. S.C. 1970).

II

As to Pomales-Rivera (hereafter Pom-ales), there is a divergence of opinion among members of the panel; hence, some discussion and explanation of the majority view follows.

Pomales filed three applications for conscientious objector ' classification prior to this application for discharge as a conscientious objector, the denial of which is the subject of this appeal. His initial application was disapproved by his commanding officer, by the interviewing chaplain and by the hearing officer. The chaplain found that, although Pomales was then sincere, his expressions of belief were shallow and appeared to be made as an expedient means of avoiding active combat in Vietnam. The chaplain found that his beliefs had no depth and were based on statements taken out of context, which statements the chaplain thought must have been provided by someone else since Pomales did not seem to fully understand the statements made in his own application.

In his final application, Pomales referred to “glaring inequalities” in wealth and power, and condemned the American policy of expending $60 million a year (obviously referring to the cost of conducting the Vietnam war) while letting “the rest of the word [world] fester in its nurseries.” He stated that he felt that it is better to conduct “constructive wars” such as “wars against poverty” than “destructive and genocide war” (again, obviously referring to the Vietnam war). He quoted extensively from Father D rimas’ vehement condemnation of the Vietnam war and his demand that the United States withdraw from Vietnam and make “massive restitution” to the Vietnamese people. Pomales subsequently told the chaplain that he had simply copied statements of what he termed the Catholic Church’s “new declarations” from the “Catholic Messenger,” which quotations comprised much of his final application.

We agree with the district court that there was clearly a basis in fact for the denial of Pomales’ application for discharge as a conscientious objector. While Pomales briefly and vaguely referred to “all Christian postulates” and quoted a long passage from the New Testament, most of his application is a political diatribe condemning America’s participation in the Vietnam war; there appears to be little if any religious basis for his conscientious objector claim. While the Supreme Court in Welsh v. United States, 398 U. S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970), expanded the definition of “religious training and belief” to include deeply rooted and sincere moral or ethical bases, the Court specifically stated that those whose beliefs are not deeply held and those whose objection to war rests solely upon considerations of policy, pragmatism, or expediency do not qualify as conscientious objectors. 398 U.S. 342-343, 90 S.Ct. 1792.

Pomales would seem to fall directly within both categories of persons found by the Supreme Court in Welsh as failing to qualify as conscientious objectors. First, his beliefs do not appear to be deeply held. We agree with the district court that his application consists largely of reproductions of statements of others rather than evidencing deeply held personal “religious” beliefs against participation in war in any form; such reproductions are insufficient to qualify one as a conscientious objector. See United States v. Brown, 423 F.2d 751, 754 (3 Cir. 1970). Second, his claim seems based more upon expediency than upon sincerity. Army officials interviewing him thought that his claim was made to avoid his impending transfer to Vietnam instead of indicating a sincere conscientious objection to war. While a student, Pomales participated in ROTC for two years; he proceeded through both basic and advanced infantry training. Only when directly confronted with prospective service in Vietnam did he file an application for classification as a conscientious objector. While we recognize that such timing alone would not bar a sincere, deeply held conscientious objector claim if such belief crystallized due to the immediate prospect of combat duty in Vietnam, United States ex rel. Tobias v. Laird, 413 F.2d 936, 939 (4 Cir. 1969), we do not think it amiss for Army officials and the district court to consider the timing of the assertion of a claim of conscientious objection in evaluating its sincerity, especially where, as here, the claim appears to be more a collection of the thoughts of others rather than a statement of the applicant’s personal beliefs.

Accordingly, we approve and affirm the finding of the district court of a basis in fact for the denial of the application of Pomales for discharge as a conscientious objector.

Affirmed.