RIVES, Circuit Judge:
Pitcher appeals from a denial of his petition for writ of habeas corpus in the district court. Pursuant to a United States Army Regulation,
Pitcher filed an application for discharge, claiming that he had become a conscientious objector after entering the military service. The Secretary of the Army denied the request for discharge on the ground that Pitcher’s claim was based on a personal moral code and not upon religious beliefs. The district court in denying his petition for habeas corpus found that there was basis in fact for the Army’s denial of his application for discharge. We reserve and remand with directions that Pitcher’s request for habeas corpus relief be granted.
Private First Class Pitcher voluntarily enlisted in the U. S. Army under a contract of service dated February 19, 1968. Although he had considered an I-A-0 classification (noncombatant military service) on philosophical grounds, Pitcher thinking he could keep a clear conscience entered the medical corps.
At
no time prior to enlistment did he raise the question of conscientious objection.
On April 2, 1969, Pitcher submitted a written request for discharge from the Army under the provisions of Army Regulation 635-20.
Pitcher stated in his application that after joining the Army he had a “new, moving experience”
which was based on religion and a belief in God. As a result of this “experience,” his thoughts crystallized into conscientious objection to military service in any form. In describing the source of his newly-founded beliefs, Pitcher explained that for the previous six months he had been attending and working in the Church of the Holy Spirit, an Episcopal Church Mission in downtown San Antonio, Texas. During this period and after a great deal of prayer and meditation, “I realized that I could not in any manner support the use of violence against my brother whom I am commanded, as a Christian, to love.” In describing the depth of his conviction, Pitcher stated: “It was not until recently that I made a decision to become a conscientious objector and because the finalizing of this decision came only recently, I have not had time to demonstrate my beliefs in an open manner. Until this time, I have been a compliant with serious doubts about my military commitment.”
As provided by Regulation 635-20, Pitcher was interviewed by a medical officer, an Army chaplain, and an officer of the grade of 0-3 or higher. The medical officer, Major Martin S. Posner, found that Pitcher had no psychiatric disorder or mental defects. The Army chaplain, Major Howard W. Marsh, thought Pitcher to be sincere in his conscientious objection beliefs and found that his objection to military service on religious grounds was only recently formed.
Pitcher was also interviewed by a field grade officer, Lt. Colonel Denis F. Sheils, who found:
“From this interview and evaluation of the material in PFC Pitcher’s request it is difficult to determine the sincerity of his actions but it does appear that his conscientious objections are philosophical views or personal moral codes that he has developed since his association from September 1968 with the Church of the Holy Spirit which supports a coffee house as part of the church mission. It does not seem logical to me that PFC Pitcher, being the son of a United Methodist minister and an active member of the United Methodist Church which supports conscientious objectors, would not have applied for a conscientious objector’s draft clas
sification before he enlisted. The fact that he enlisted rather than waiting to be drafted indicates that he felt he could serve in the armed forces. It also seems illogical that his religious convictions could have been so radically changed in the few months after his association with the Holy Spirit Church to the extent that he now cannot serve in a non-combatant status.”
The various commanding officers in the chain of command recommended disapproval of Pitcher’s request, and on May 19, 1969, by order of the Secretary of the Army, Pitcher’s application for discharge was denied with the comment : “Evidence indicates that applicant’s claim is based on a personal moral code and not upon religious beliefs.”
On June 11, 1969, the district court denied Pitcher’s petition for habeas corpus. The court, although of the opinion that Pitcher had not exhausted his administrative remedies, assumed jurisdiction and found that there was basis in fact for the Army’s denial of Pitcher’s request. Pitcher’s motion for stay pending appeal was denied by this Court. Pitcher v. Laird, 415 F.2d 743 (5th Cir. 1969).
Exhaustion of Administrative Remedies
In its order denying habeas corpus relief, the district court stated that Pitcher had not exhausted his administrative remedies. The court, however, assumed jurisdiction and denied relief on the merits. The government initially argued as one of its grounds for affirmance that Pitcher had not exhausted his administrative remedies,
i. e.,
that he did not appeal the denial of his application for discharge to the Board for Correction of Military Records. Therefore, the government contended, the district court did not have jurisdiction over Pitcher’s petition.
Because of a change in Department of Justice policy, the government no longer contends that Pitcher’s failure to appeal the denial of his request to the Board for Correction of Military Records constitutes a failure to exhaust administrative remedies.
Realizing, however', that neither party can waive jurisdictional defects,
we find that the district court had proper jurisdiction over Pitcher’s petition for habeas corpus.
We agree with the Fourth and Second Circuits that where neither court-martial nor military justice procedures are pending, an unsuccessful applicant for post-induction conscientious objector discharge does not have to appeal to the Board for Correction of Military Records in order to exhaust his available administrative remedies. United States ex rel. Brooks v. Clifford, 409 F.2d 700, 706-707 (4th Cir. 1969); Hammond v. Lenfest, 398 F.2d 705, 713 (2d Cir. 1968); United States ex rel. Healy v. Beatty, 300 F.Supp. 843, 845-846 (S.D.Ga.1969); Gann v. Wilson, 289 F.Supp. 191 (N.D.Cal.1968); Crane v. Hedrick, 284 F.Supp. 250, 253 (N.D.Cal.1968).
But see
Craycroft v. Ferrall, 408 F.2d 587 (9th Cir. 1969); Noyd v. McNamara, 378 F.2d 538 (10th Cir. 1967).
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RIVES, Circuit Judge:
Pitcher appeals from a denial of his petition for writ of habeas corpus in the district court. Pursuant to a United States Army Regulation,
Pitcher filed an application for discharge, claiming that he had become a conscientious objector after entering the military service. The Secretary of the Army denied the request for discharge on the ground that Pitcher’s claim was based on a personal moral code and not upon religious beliefs. The district court in denying his petition for habeas corpus found that there was basis in fact for the Army’s denial of his application for discharge. We reserve and remand with directions that Pitcher’s request for habeas corpus relief be granted.
Private First Class Pitcher voluntarily enlisted in the U. S. Army under a contract of service dated February 19, 1968. Although he had considered an I-A-0 classification (noncombatant military service) on philosophical grounds, Pitcher thinking he could keep a clear conscience entered the medical corps.
At
no time prior to enlistment did he raise the question of conscientious objection.
On April 2, 1969, Pitcher submitted a written request for discharge from the Army under the provisions of Army Regulation 635-20.
Pitcher stated in his application that after joining the Army he had a “new, moving experience”
which was based on religion and a belief in God. As a result of this “experience,” his thoughts crystallized into conscientious objection to military service in any form. In describing the source of his newly-founded beliefs, Pitcher explained that for the previous six months he had been attending and working in the Church of the Holy Spirit, an Episcopal Church Mission in downtown San Antonio, Texas. During this period and after a great deal of prayer and meditation, “I realized that I could not in any manner support the use of violence against my brother whom I am commanded, as a Christian, to love.” In describing the depth of his conviction, Pitcher stated: “It was not until recently that I made a decision to become a conscientious objector and because the finalizing of this decision came only recently, I have not had time to demonstrate my beliefs in an open manner. Until this time, I have been a compliant with serious doubts about my military commitment.”
As provided by Regulation 635-20, Pitcher was interviewed by a medical officer, an Army chaplain, and an officer of the grade of 0-3 or higher. The medical officer, Major Martin S. Posner, found that Pitcher had no psychiatric disorder or mental defects. The Army chaplain, Major Howard W. Marsh, thought Pitcher to be sincere in his conscientious objection beliefs and found that his objection to military service on religious grounds was only recently formed.
Pitcher was also interviewed by a field grade officer, Lt. Colonel Denis F. Sheils, who found:
“From this interview and evaluation of the material in PFC Pitcher’s request it is difficult to determine the sincerity of his actions but it does appear that his conscientious objections are philosophical views or personal moral codes that he has developed since his association from September 1968 with the Church of the Holy Spirit which supports a coffee house as part of the church mission. It does not seem logical to me that PFC Pitcher, being the son of a United Methodist minister and an active member of the United Methodist Church which supports conscientious objectors, would not have applied for a conscientious objector’s draft clas
sification before he enlisted. The fact that he enlisted rather than waiting to be drafted indicates that he felt he could serve in the armed forces. It also seems illogical that his religious convictions could have been so radically changed in the few months after his association with the Holy Spirit Church to the extent that he now cannot serve in a non-combatant status.”
The various commanding officers in the chain of command recommended disapproval of Pitcher’s request, and on May 19, 1969, by order of the Secretary of the Army, Pitcher’s application for discharge was denied with the comment : “Evidence indicates that applicant’s claim is based on a personal moral code and not upon religious beliefs.”
On June 11, 1969, the district court denied Pitcher’s petition for habeas corpus. The court, although of the opinion that Pitcher had not exhausted his administrative remedies, assumed jurisdiction and found that there was basis in fact for the Army’s denial of Pitcher’s request. Pitcher’s motion for stay pending appeal was denied by this Court. Pitcher v. Laird, 415 F.2d 743 (5th Cir. 1969).
Exhaustion of Administrative Remedies
In its order denying habeas corpus relief, the district court stated that Pitcher had not exhausted his administrative remedies. The court, however, assumed jurisdiction and denied relief on the merits. The government initially argued as one of its grounds for affirmance that Pitcher had not exhausted his administrative remedies,
i. e.,
that he did not appeal the denial of his application for discharge to the Board for Correction of Military Records. Therefore, the government contended, the district court did not have jurisdiction over Pitcher’s petition.
Because of a change in Department of Justice policy, the government no longer contends that Pitcher’s failure to appeal the denial of his request to the Board for Correction of Military Records constitutes a failure to exhaust administrative remedies.
Realizing, however', that neither party can waive jurisdictional defects,
we find that the district court had proper jurisdiction over Pitcher’s petition for habeas corpus.
We agree with the Fourth and Second Circuits that where neither court-martial nor military justice procedures are pending, an unsuccessful applicant for post-induction conscientious objector discharge does not have to appeal to the Board for Correction of Military Records in order to exhaust his available administrative remedies. United States ex rel. Brooks v. Clifford, 409 F.2d 700, 706-707 (4th Cir. 1969); Hammond v. Lenfest, 398 F.2d 705, 713 (2d Cir. 1968); United States ex rel. Healy v. Beatty, 300 F.Supp. 843, 845-846 (S.D.Ga.1969); Gann v. Wilson, 289 F.Supp. 191 (N.D.Cal.1968); Crane v. Hedrick, 284 F.Supp. 250, 253 (N.D.Cal.1968).
But see
Craycroft v. Ferrall, 408 F.2d 587 (9th Cir. 1969); Noyd v. McNamara, 378 F.2d 538 (10th Cir. 1967).
As noted above, this Court denied Pitcher’s Motion for Stay Pending Appeal. In denying the motion, the Court commented on Pitcher’s exhaustion of administrative remedies:
“Without prematurely evaluating the merits of petitioner’s ease, the likelihood that petitioner will prevail is somewhat lessened by the narrow range afforded this Court in reviewing military habeas corpus matters. See Burns v. Wilson, 346 U.S. 137, 142, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953); Gorko v. Commanding Officer, 314 F.2d 858, 859 (10th Cir. 1963). Furthermore, respondent urges that petitioner has failed to exhaust his Military Administrative remedies by failing to petition the Board for Correction of Military Records. The District Court was also of this opinion. We note, without prejudice to petitioner’s future arguments, that respondents’ contentions have at least an appearance of correctness. See McCurdy v. Zuckert, 359 F.2d 491 (1966).”
Pitcher v. Laird, 415 F.2d 743, 745 (5th Cir. 1969).
McCurdy v. Zuckert, 359 F.2d 491 (5th Cir. 1966), is distinguishable from this case.
McCurdy
involved a general discharge for unfitness by a Board of Officers. The district court, although denying McCurdy’s request for a temporary injunction, retained jurisdiction until McCurdy had an opportunity to have his case reviewed by the Air Force Board for Correction of Military Records. This Court, holding that the district court lacked jurisdiction, noted that under 10 U.S.C.A. § 1553 (supp.) McCurdy could have a full hearing to review his discharge.
In this ease Pitcher, an unsuccessful applicant for conscientious objection discharge, fully complied with the procedure for conscientious objection discharge set forth in Department of Defense Directive 1300.6 and Army Regulation 635-20.
In the limited factual situation of this case — where court-martial or military justice procedures are not pending — we hold that Pitcher had exhausted all available administrative remedies.
Basis in Fact
The district court found that there was basis in fact for the Army’s denial of Pitcher’s request for discharge. Pitcher’s request for discharge can only be understood in the context of the general procedures adopted by the military for dealing with conscientious objectors. Until 1962, the Department of Defense had no procedures permitting the discharge of military personnel for reason of conscientious objection. But, in 1962, pursuant to 10 U.S.C.A. § 133,
see
Hammond v. Lenfest, 398 F.2d 705, 708 (2d Cir. 1968), the Secretary of Defense issued Department of Defense Directive (DOD) No. 1300.6, which established a policy permitting discharge for valid conscientious objection claims.
The Army’s criteria for examining conscientious objection claims is enunciated in DOD 1300.6 Y:
“Section 6(j) of Title I of the MSS Act (reference (c)) provides an exemption from combatant training and service in the Armed Forces of the United States for any person ‘who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form.’ The same subsection further provides that ‘ “re
ligious training and belief” does not include essentially political, sociological, or philosophical views or a merely personal moral code.’ ”
As the applicable standards in determining the validity of such claims, the Directive, DOD 1300.6 IV 3. b., further provides:
“Since it is in the national interest to judge all claims of conscientious objection by the same standards, whether made before or after entering military service, Selective Service System standards used in determining 1-0 or 1-A-O classification of draft registrants prior to induction shall apply to servicemen who claim conscientious objection after entering military service.”
In accordance with this Directive the Army promulgated its own implementing regulations, Army Regulation 635-20.
Pursuant to the provisions of Regulation 635-20, Pitcher was interviewed by an Army chaplain, a field grade officer and a medical officer. The Chaplain, Major Howard W. Marsh, thought Pitcher to be sincere in his conscientious objection beliefs and also found that Pitcher’s objection to military service on religious grounds was only recently formed. The field grade officer, Lt. Colonel Denis F. Sheils, found “difficult to determine the sincerity” of Pitcher’s application but stated that his conscientious objections were philosophical views or personal moral codes that he had developed since his association with the Church of the Holy Spirit. On May 19, 1969, by order of the Secretary of the Army, Pitcher’s application for discharge was denied with the comment: “Evidence indicates that applicant’s claim is based on a personal moral code and not upon religious beliefs.”
Before proceeding to our discussion of the conscientious objection claim, we point out the narrow range afforded this Court in reviewing military habeas corpus matters. United States ex rel. Brooks v. Clifford,
supra
409 F.2d at 705; Hammond v. Lenfest,
supra,
398 F.2d at 710;
see
Burns v. Wilson, 346 U.S. 137, 142, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953); Orloff v. Willoughby, 345 U.S. 83, 93-94, 73 S.Ct. 534, 97 L.Ed. 842 (1953). “Judicial hesitancy when faced with matters touching on military affairs is hardly surprising in view of the doctrine of separation of powers and the responsibility for national defense which the Constitution * * * places upon the Congress and the President". Moreover, the ever-present and urgent need for discipline in the armed services would alone explain the relative freedom of the military from judicial supervision.” Hammond v. Len-fest,
supra.
Our reluctance to review discretionary military orders, however, does not imply that any action by the Army is beyond the reach of this Court. We do not have to determine whether the Army
must
provide regulations for discharge of conscientious objectors in light of the congressional policy to exempt those persons conscientiously opposed to participation in war by reason of religious training and belief. Once regulations have been provided, however, the Army cannot apply them in an arbitrary or capricious manner. United States ex rel. Brooks v. Clifford,
supra,
409 F.2d at 706; Smith v. Resor, 406 F.2d 141, 145 (2d Cir. 1969); Hammond v. Lenfest,
supra,
398 F.2d at 715.
Although Pitcher initially raised his conscientious objection claim after enlistment into the armed forces, our scope of review is identical to review of conscientious objection claims presented to local draft boards prior to induction: whether there is any basis in fact for the finding that an individual has not presented a valid conscientious objection claim.
Thus, we must de
termine whether or not there was any basis in fact for the Army’s denial of Pitcher’s discharge request on the ground that his conscientious objection claim was based on a personal moral code and not upon religious beliefs.
From Pitcher’s written request for discharge under Regulation 635-20, it is clear that his conscientious objection beliefs are based substantially on religious training and belief.
Pitcher was reared in a Christian home and depended principally upon his father, a Methodist minister, for his religious training.
After enlistment in the Army, he attended, participated in the activities, and
worked at the Church of the Holy Spirit, an Episcopal Church Mission in downtown San Antonio. Because of his involvement in these activities, Pitcher developed his conscientious objection beliefs.
“Due to my relationship with the Church of the Holy Spirit I have come to a better understanding of God and the life as exemplified through Christ he wants me to lead. Because of this understanding I have decided to give my life to the service of God without compromise. Having arrived at this decision I realized that my defense was nothing but God. If I had truly given my life to him and attempted to follow his commandments he would be faithful in my defense as explained in Revelation 13:9. Since that time I have lived with the growing realization that no matter what my job is in the military I was still a member of a military organization, whose operational principles involve the taking of lives and the destruction of property, and I was a Christian who believed that killing was against the principles of God as taught by Christ. I discovered that the medical corps was designed to save lives, not for the sake of saving lives, but, rather to support the taking of lives as exemplified in the corps motto, ‘To conserve the fighting strength.’
“Upon the basis of a great deal of prayer and meditation, I realized that I could not in any manner support the use of violence against my brother whom I am commanded, as a Christian, to love.”
In denying his request for discharge, the Army concluded that Pitcher’s beliefs were based on a personal moral code and not upon religious beliefs. However, in the preceding paragraph, we noted that Pitcher’s conscientious objection beliefs were founded substantially on his religious training and beliefs. “Before a conscientious objector classification may be denied on the ground that the applicant’s beliefs are based upon ‘political, sociological or philosophical views or on a merely personal moral code,’ those factors must be the sole basis of his claim for the classification.” United States v. White, 421 F.2d 487 (5th Cir. 1969); United States ex rel. Brooks v. Clifford,
supra,
409 F.2d at 708; Fleming v. United States, 344 F.2d 912, 915 (10th Cir. 1965);
see
United States v. Seeger, 380 U.S. 163, 186, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965). As expressed by the Fourth Circuit in Brooks:
“ * * * We find it unnecessary to attempt any clearer definition or to examine the record to determine the presence or absence of support for the
conclusion, because we are satisfied that even if petitioner was motivated in part by a personal moral code, he is still entitled to the exemption because of the unquestioned finding that he was also substantially motivated by views derived from religious training and belief.
“In United States v. Seeger,
supra,
the Court discussed the situation of registrants whose beliefs are based on a ‘merely personal moral code.’ In dealing with this exception to the exemption, the Court noted that it had construed the statutory definition of a conscientious objector broadly and ‘it follows that any exception to it must be interpreted narrowly.’ Significantly, the Court continued, ‘[t]he use by Congress of the words “merely personal” seems to us to restrict the exception to a moral code which is not only personal but
which is the sole basis for the registrant’s belief
and is in no way related to a Supreme Being.’ 380 U.S., at 186, 85 S.Ct. at 864 [emphasis supplied]. Thus, we read
Seeger
as holding that a disqualifying ‘merely personal code’ is one which, unlike that of petitioner, constitutes the sole basis for his beliefs.”
409 F.2d at 708
Since the
sole
basis of Pitcher’s conscientious objection claim is not a personal moral code, his request for discharge cannot be denied on grounds that his beliefs are based upon philosophical views or a personal moral code. All of the evidence establishes that his claim is sincere and is substantially founded on religious training and beliefs. Therefore, there is no basis in fact for the Army’s denial of Pitcher’s request for discharge. On remand the district court is to issue a writ of habeas corpus directing that Pitcher be released and discharged from the United States Army.
Reversed and remanded.