Lipton v. Peters

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 12, 2000
• Docket: 00-50200
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-50200 Summary Calendar

DENNIS LIPTON,

Petitioner-Appellant,

versus F. WHITTEN PETERS, Acting Secretary of the U.S.. Air Force; MARGIE L. HUMPHREY, Colonel, Commander, HQARPC,

Respondents-Appellees.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. SA-99-CV-235-EP -------------------- November 30, 2000

Before GARWOOD, DAVIS and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Dennis Lipton appeals following the district court’s denial

of his 28 U.S.C. § 2241 habeas petition challenging the Air

Force’s denial of his discharge application based upon him being a conscientious objector. Lipton argues that, although the

Secretary of the Air Force concluded that the primary reason for

the application was Lipton’s disappointment over not obtaining a

residency in pathology as he had requested, the Secretary did not

determine whether Lipton’s application was also substantially

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 00-50200 -2-

motivated by his opposition-to-participation-in-war beliefs.

Lipton also argues that, if the Secretary’s decision found that

Lipton’s conscientious-objection beliefs were not sincere, there

was no basis in fact supporting that finding.

Our review of the Air Force’s denial of a conscientious-

objector discharge is extremely narrow. DeWalt v. Commanding

Officer, Fort Benning, GA., 476 F.2d 440, 442 (5th Cir. 1973).

Such a denial must be sustained if this court can discern any

basis in fact for it. Silverthorne v. Laird, 460 F.2d 1175, 1179

(5th Cir. 1972).

Our review of the Secretary’s decision reveals that the

Secretary determined that Lipton’s professed objection-to-

participation-in-war beliefs were not sincere. Lipton’s argument

that the Secretary failed to determine whether Lipton’s discharge

application was substantially motivated by qualified beliefs and

his attempt to apply the holding in Pitcher v. Laird, 421 F.2d

1272, 1278-80 (1978), to his case are without merit. A review of

the record reveals that there is a basis in fact supporting the

Secretary’s determination that Lipton’s professed beliefs were

not sincere. See Hopkins v. Schlesinger, 515 F.2d 1224, 1228

(5th Cir. 1975); Silverthorne v. Laird, 460 F.2d 1175, 1179 (5th

Cir. 1972). The dismissal of Lipton’s § 2241 petition is

AFFIRMED.