Private David H. O'Brien v. Stanley Resor, Secretary of the Army, Washington, D. C.

423 F.2d 594, 1970 U.S. App. LEXIS 10252
CourtCourt of Appeals for the Fourth Circuit
DecidedMarch 18, 1970
Docket13538_1
StatusPublished
Cited by8 cases

This text of 423 F.2d 594 (Private David H. O'Brien v. Stanley Resor, Secretary of the Army, Washington, D. C.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Private David H. O'Brien v. Stanley Resor, Secretary of the Army, Washington, D. C., 423 F.2d 594, 1970 U.S. App. LEXIS 10252 (4th Cir. 1970).

Opinions

WINTER, Circuit Judge:

Believing that his claim for classification as a conscientious objector has been illegally denied him, David H. O’Brien, nevertheless, obeyed the order of his local board to report for induction, was inducted into the United States Army and has been serving as a private. He then sought release by applying for a writ of habeas corpus from the district court. Relief was refused because the district court found a basis in fact for denying the classification because of O’Brien’s failure to assert it for four and one-half years after his initial registration and I-A classification and because of O’Brien’s obtention of other classifications deferring military service during that period. The district court, in denying relief, did not discuss O’Brien’s claim that he was denied procedural due process of law resulting from the failure of the local board and the state board of appeals to make findings with respect to his claim, although it concluded generally that O’Brien’s constitutional rights had not been violated. O’Brien has appealed. We reverse the order of the district court and remand the ease with directions to issue the writ.

I

O’Brien’s selective service history as found by the district court and as reflected in his selective service file is as follows: O’Brien registered with the draft board on September 5, 1960. He returned his first selective service system questionnaire on February 1, 1963, at which time he left blank the series of questions relating to a possible claim for conscientious objector status. He was classified I-A on February 18, 1963, and was ordered to report for a physical examination on January 17, 1964. O’Brien then applied for enlistment in the United States Army Reserve and was found on January 17, 1964, to be qualified. However, the following month he was refused admission in the reserve unit on the basis of a physical disability.

On March 16, 1964, O’Brien was classified I-Y by his local draft board on the basis of a knee injury, and maintained that classification until June 20, 1966. On the latter date he was again classified I-A, after he had undergone an additional medical examination and orthopedic consultation at a naval hospital.

[596]*596O’Brien sought reconsideration of his I-A classification on June 23, 1966, on the ground that he was a college student. Initially the local board refused to classify him as a student because the documents in his file indicated that he was only a part time student and not eligible for deferment, but after an order to report for induction, which issued September 19, 1966, certificates showing O’Brien’s enrollment as a full time student were supplied to the board, and the order to report for induction was can-celled. O’Brien was then classified as I-S(C) and maintained that classification until shortly after he completed his junior college studies.

O’Brien was again classified I-A on July 17, 1967. He appeared before his local board on August 14, 1967, and expressed his desire to continue in school until the end of the semester and his desire that he retain his student deferment. The board denied the request on the grounds that he had reached his twenty-fourth birthday and was no longer eligible for the student deferment. O’Brien then indicated that he would like to appeal this classification and the board sent him formal notice of a I-A classification and the forms for filing an appeal. O’Brien did not pursue this course and, on September 10, 1967, he informed the board that he was conscientiously opposed to participation in the military and war in any form, and requested SSS Form 150, applicable to conscientious objectors. On September 29, 1967, he returned the form with eight supporting letters. He appeared before the Board on October 23, 1967, and, after receiving the information which he submitted and discussing the matter with him, the board continued his I-A classification. The only record of the board’s action in this regard is the entry in his selective service folder of the minute, which reads, “Registrant appeared before local board relative to his claim on SSS Form 150. Board reviewed information submitted and continued I-A based on his personal appearance.” The local board granted O’Brien a second interview on November 14, 1967, and a minute was entered for that date that the board decided that O’Brien “did not qualify for I-A-0 and registrant was advised of action that information presented did not warrant the reopening of his case.” O’Brien exercised his right of review by the state appeal board, which unanimously rejected his claim. Nothing in O’Brien’s selective service file records the basis of the state appeal board’s decision. An order to report issued on February 15, 1968, and O’Brien was inducted on March 11, 1968.

II

We consider first whether O’Brien made a prima facie case establishing that he was a conscientious objector as defined by 50 U.S.C.A. App. § 456 (j). From our examination of his written claim to that status, the detailed information in the SSS Form 150 which he signed and the supporting data, we conclude that a prima facie case was made.

O’Brien established that his father was an adherent of the Roman Catholic Church and his mother a Methodist. He claimed that he believed in a Supreme Being and that his conscientious objection to participation in war in any form and to participation in noncombatant training and service in the armed forces stemmed from his religious belief, i. e., “[m]y life and actions are answerable only to God, and not to man. I believe God’s most precious gift to man is life; no man has the right to destroy life or the authority to command another individual to destroy life.” In response to the inquiry of the source of his belief, he stated that his religious training was primarily acquired from his parents and his home environment. From these sources he was taught “to love God and to serve God and our fellowman,” and, in addition, he was taught the commandments “ ‘Love thy neighbor’ and ‘Thou shalt not kill.’ ” He added, “[t]he teachings of the church reinforced my parents’ teachings.”

[597]*597While O’Brien acknowledges that he was not a formal member of any church and that he relied upon his “personal conscience, convictions, and belief in God for guidance,” he named a priest of the Protestant Episcopal church as the person to whom he would go if he needed consultation. This priest wrote one of the letters in support of his claim, and from the letter it appears that he had talked at great length to O'Brien about O’Brien’s claimed conscientious objection to the military service. He affirmed that O’Brien was unquestionably a conscientious objector, as well as a person who believed in a Supreme Being, and lived his life “morally responsible to this belief.” It was the priest’s conclusion that O’Brien’s beliefs were based on moral, theological and psychological foundations.

The form further disclosed that O'Brien had been a student in public schools in Baltimore, Maryland, Boca Raton, Florida, Delray Beach, Florida, Suffolk, Virginia, and again in Baltimore, Maryland, from 1947 to 1967, and that he had also held various jobs as a mechanic’s helper, grocery clerk and salesman for a seed company. In the course of his life, he had been a member of the cub scouts, a church choir and a church club.

O’Brien expressed his conviction that he did not believe in the use of force except to the extent of defending his own person or the persons of those attacked by others, and even then he would employ force only to the extent of repelling the attack but not to harm the attacker.

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Bluebook (online)
423 F.2d 594, 1970 U.S. App. LEXIS 10252, Counsel Stack Legal Research, https://law.counselstack.com/opinion/private-david-h-obrien-v-stanley-resor-secretary-of-the-army-ca4-1970.