First Lieutenant Stephen H. Lafranchi v. Honorable Robert C. Seamans, Jr., Secretary of the Air Force

536 F.2d 1259, 1976 U.S. App. LEXIS 11752

• Court: Court of Appeals for the First Circuit
• Decided: April 19, 1976
• Docket: 73-1242
• Status: Published

Opinions

OPINION

Before BROWNING, TRASK and GOODWIN, Circuit Judges.

PER CURIAM.

Appellant LaFranchi, a pediatrician, was commissioned a First Lieutenant in the Air Force. He sought to resign his commission because of conscientious objection to war. He was interviewed by an Air Force chaplain, an Air Force psychiatrist, and an investigating officer at Norton Air Force Base, California. All recommended approval of his application. His file was reviewed by the Acting Staff Judge Advocate and the Deputy Director, Directorate of Personnel, at the Air Reserve Personnel Center in Denver. They also recommended approval.

Appellant’s file was then forwarded to the Air Force Military Personnel Center; several officers there advised disapproval. Upon recommendation of the Air Force Personnel Board, the Secretary of the Air Force rejected appellant’s application, stating, “The record fails to substantiate that [appellant’s] views are founded on religious training and belief or that his convictions are sincerely and deeply held.”

The officers recommending disapproval relied on two facts: (1) since appellant was a pediatrician, there was no apparent conflict between his professed views and the duties to which he would be assigned; and (2) his application was filed shortly after he received his active duty orders.

The two facts relied upon were insufficient. Appellant expressed opposition to any form of military service. As he said in concluding the statement of his views in his application, “I strongly feel that my beliefs and objectives as a person and as a physician are in direct contradiction to the beliefs and objectives of the military and therefore, I cannot in good conscience serve the military.” The fact that appellant’s assignment would not involve him directly in combat operations is irrelevant to appellant’s professed conscientious objection to any form of military service under the governing test. See, e. g., Gillette v. United States, 401 U.S. 437, 91 S.Ct. 828, 28 L.Ed.2d 168 (1971); Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970); Witmer v. United States, 348 U.S. 375, 75 S.Ct. 392, 99 L.Ed. 428 (1955). It was therefore improper to deny appellant a discharge on that ground. The timing of appellant’s application, while relevant, will not alone sustain the result. This court has repeatedly held that late crystallization of conscientious objector beliefs, standing alone, is not a sufficient ground for denying a discharge. Sanger v. Seamans, 507 F.2d 814, 817 (9th Cir. 1974); Richmond v. Larson, 476 F.2d 1038, 1042 (9th Cir. 1973); Strait v. Laird, 464 F.2d 205, 207-08 (9th Cir. 1972).

Each officer who personally interviewed appellant recommended approval of his application. We have often noted the advantage such interviewing officers have in evaluating the sincerity of a professed conscientious objector. Nee Strait v. Laird, supra, 464 F.2d at 207; Rastin v. Laird, 445 F.2d 645, 649 (9th Cir. 1971). Since there are no “indications that the officers may have overlooked salient facts,” their recommendations were entitled to “serious consideration.” Sanger v. Seamans, supra, 507 F.2d at 817.

Since appellant made out a prima facie case in support of his application, and no basis in fact for denying the application was stated by the Secretary or clearly revealed by the record, the order denying the petition for habeas corpus must be reversed.