Rosengart v. Laird

449 F.2d 523

Opinions

MOORE, Circuit Judge:

Oliver A. Rosengart appeals from an order of the United States District Court for the Southern District of New York entered on November 23, 1970, denying his application for a writ of habeas corpus in a proceeding under 28 U.S.C. § 2241(c) (1) (3) seeking his discharge from the United States Army Reserves as a conscientious objector. A short stay of Rosengart’s obligation to report for active duty was entered by consent at the commencement of this action; thereafter, the district court entered further stays which were continued in effect until its final determination, at which time it dissolved the stay. On December 8, 1970, this court entered a stay pending the outcome of this appeal and ordered an expedited appeal.

The gravamen of this appeal is that there was no factual basis for the Army’s determination that Rosengart was not entitled to a discharge and that the multiple remands to the Army below deprived Rosengart of his rights to due process of law, the denial of which it is argued entitles him to his much-sought-after discharge. We affirm.

FACTS AND ADMINISTRATIVE PROCEDURAL HISTORY

In September 1959, while a freshman at the City College of the City of New York (CCNY), Rosengart enrolled in that college’s ROTC program. Upon the completion of his five-year program in engineering, he was commissioned as a second lieutenant in the United States Army Reserves in June 1964; his active duty date was postponed to a date beyond the completion of his law studies at New York University, which was in June 1967. Shortly after his law school graduation, Rosengart was informed that he was to report for active duty on April 10, 1968.

Beginning in December 1967, Rosen-gart began the first in a series of maneuvers to avoid meeting his active duty obligation.¹ On a routine Army “Statement of Physical Condition for Promotion,” dated December 27, 1967,² Rosen-gart stated ■ that he believed himself “psychologically unfit to serve in the U. S. Army.” This conclusion was grounded on Rosengart’s regular psychotherapy treatment over the previous 21 months, his belief in the necessity of further treatment “for a considerable length of time,” and his therapist’s statement to him that “she believes that I am unfit for military service and will so state in a letter.” Rosengart then requested a psychiatric examination “to determine whether I am fit for military service.” On February 23, 1968, Rosengart reported for a medical examination at the New York City Armed Forces Examining Station, where he filled out the standard “Report of Medical History,”³ which contains the following references of interest: (1) in giving a statement of his “present health in his own words,” Rosengart stated, “My psychological health is not good. I have been in psychotherapy for almost two years”; (2) in response to a question addressed to any school-related difficulties which he may have had, Rosengart stated that he was “a chronic underachiever in school”; ⁴ and (3) in response to a question whether he had ever treated himself for illnesses other than a minor cold, Rosengart stated, “I get an occasional 24 hour stomach virus. [!]” On March 4, 1968, an Army psychiatrist found Rosengart fit for military duty, noting that his history did not reveal “any serious pathology,” that he made a “favorable impression,” and that “in view of his adequate civilian adjustment he should adjust to military life.”⁵

While his request for a medical discharge was still pending, and only very shortly after he had received a new set of active duty orders dated January 22, 1968 confirming his active duty date of April 10, 1968,⁶ Rosengart initiated formal application for a personal hardship deferment. The delay in reporting for active duty was sought because of the great financial, mental and physical hardship to his former German refugee parents, especially to Rosengart’s mother, who was suffering from an increasingly deteriorating case of multiple sclerosis, which his early reporting presumably would have aggravated. Rosengart’s father, it was alleged,⁷ would be unable to pay the soaring medical expenses because of the loss of his principal source of income as a German reparations lawyer. Consequently, it was argued, Rosengart as the only child would be required to contribute some $4,000 to $5,000 per year to the support of his parents, presumably through his continued employment as a well-paid lawyer in a patent law firm for which he was then temporarily working prior to his active duty reporting date. While this application was pending, Rosengart received a further delay.⁸ On May 3, 1968, his application for a deferment was denied.⁹

Undeterred by this rebuff, Rosengart renewed his request for a hardship deferment and submitted additional material in support thereof, including letters from his mother’s doctor, the family rabbi ¹⁰ as well as a letter from Rosengart himself.¹¹ This request also was based on his ability to contribute to the maintenance and support of his failing mother and apparently unemployable father. On June 24, 1968, Rosengart was denied his deferment and ordered to report for active duty on August 6, 1968.¹²

On July 8, 1968, Rosengart applied for a discharge as a conscientious objector (CO) and submitted his completed application dated August 1, 1968. Pursuant to regulation,¹³ Rosengart was interviewed by a psychiatrist, chaplain and a hearing officer, Major Mohr, each of whom recommended that Rosengart be discharged from the Army as a bona fide CO. He also was granted a further delay, pending the determination of his most recent application. On or about January 20, 1969, Rosengart was advised by the Army’s Chief Reserve Personnel Officer at Fort Benjamin Harrison, Indiana, Col. Hoffman, that his request for a discharge was “disapproved” because “[t]he determination has been made that you do not qualify for a conscientious objector classification.” ¹⁴ Because no reasons were given in the January 20 letter, as required by AR 135-25, the Army agreed to reconsider the application after the procedural irregularity issue was raised by Rosengart.

On or about February 27, 1969, Rosen-gart was reinterviewed by the same psychiatrist and chaplain and by a new hearing officer, Capt. Koch. In his findings,¹⁵ Capt. Koch stated the following:

«2. * * * After his commission in June of 1964, Lt. Rosengart realized his objection to war during his attendance at a series of religiously oriented nonsectarian camps devoted to peaceful ideals. Lt. Rosengart appears to have started a career with [a] public service organization and is presently a staff attorney with Mobilization for Youth Legal Services. Lt. Rosengart stated [that] he is willing to perform in any capacity which the Army may direct. “3. Recommend Lt. Rosengart be considered to be a bona fide conscientious objector and that he be discharged * * * in order to permit service in the Conscientious Objectors Work Program.”

By letter dated April 4, 1969, Col. Hoffman advised Rosengart that his “request for discharge by reason of conscientious objection has been disapproved” on the grounds that his application and supporting documentation “indicates [that] your claim as a conscientious objector is based primarily on a personal code, philosophical views and sociological experience.” ¹⁶

Thereupon, on April 17, 1969, Rosen-gart commenced this habeas corpus action.

PROCEEDINGS BELOW

Following argument on the petition, the district court by opinion and order¹⁷ remanded Rosengart’s case to the Army’s Conscientious Objector Review Board (Review Board), directing it to reply to four questions relating to the Review Board’s prior determination of Rosengart’s CO discharge application.¹⁸ The court remanded, although it noted that Rosengart’s “201” file “contains evidence which affirmatively blurs the picture painted by petitioner and casts doubt on the sincerity and genuineness of his claim of beliefs which would debar active duty.” ¹⁹ Objection to the district court’s procedure was made by way of motion for reargument and was denied.

In due course, the Army replied and indicated that with respect to Question 3, note 18, supra, it believed that Rosengart had to show that he had some religious training since joining the Army in order to qualify for a CO discharge.²⁰ The district court in a supplemental opinion ²¹ found that the Army Regulation does not require postserviceentrance religious training, and that the Review Board appeared to have acted contrary to regulation. Rather than dismiss or grant the petition, the district court once again remanded the case to the Army, this time for a de novo hearing and determination on the merits. The Army again came back to court, stating its view that Rosengart was not entitled to a discharge on the ground that his application was based on philosophical views, sociological experiences and a personal moral code.²² The Government moved to dismiss the petition on the ground that such views did not come within the standards for conscientious objection established by the Supreme Court in United States v. Seeger.²³ The district court reserved decision pending the Supreme Court’s decision in United States v. Sisson,²⁴ a case in which a Massachusetts district court had held that a religious-nonreligious distinction in CO cases violated the First Amendment of the Constitution, a contention urged by Rosengart below. Although Sisson was dismissed on procedural grounds, the Supreme Court decided Welsh v. United States.²⁵ Pursuant to the Government’s motion, the district court by order dated July 3, 1970, again remanded the ease to the Review Board for redetermination in the light of the newly announced standards in Welsh.²⁶

A newly comprised Review Board considered Rosengart’s application for a final time, with the benefit of the determinations of the prior Review Boards, the directions of the district court and all of the findings made by the four interviewing officers. Based upon this data and upon all of the information contained in Rosengart’s “201” file, the Review Board unanimously concluded that Rosengart was not entitled to a CO discharge. The Board found that any conscientious objection held by Rosen-gart was based solely on philosophical views and sociological experiences (a curious finding in the light of Welsh) ²⁷ and that Rosengart’s “purported conscientious objective [sic] beliefs are not truly held.”²⁸ The Government again moved to dismiss the petition. The district court found that there was a “substantial basis in the record” for the Board’s denial of Rosengart’s application on the ground of insincerity of belief and accordingly dismissed the habeas corpus petition on November 23, 1970.²⁹

I.

At the outset we note that because this case turns on other grounds, we assume without deciding that Rosengart’s beliefs are religious within the meaning of § 6(j) of the Selective Service Act of 1967,³⁰ as construed by the Supreme Court in Welsh. Moreover, in deciding this case we do not rely on the various proceedings or maneuvers employed by Rosengart in seeking discharge from his originally voluntarily assumed military active duty obligation previous to his application for a CO discharge. Each application, standing alone, appears substantial and not inconsistent with Rosengart’s eleventh hour application. We do rely, however, on the supporting documentation submitted in connection with Rosengart’s earlier applications, but only insofar as they provide indicia of inconsistency with his claimed status as a CO, i. e., as they cast a cloud upon the sincerity of his professed deeply-held beliefs of conscientious objection.³¹

The standard by which we must be guided on this appeal is whether there exists within the four corners of the record affirmative objective evidence constituting a “basis in fact” for the Review Board to conclude as it did that Rosengart’s “purported conscientious objective [sic] beliefs are not truly held.”³² Reliance upon unfounded assumptions or ipse dixit disbelief is not enough.³³ We are also mindful of Judge Smith’s recent well taken observation in United States ex rel. Donham v. Re-sor,³⁴ that great weight ought to be accorded to favorable observations and recommendations of sincerity submitted by officers who have pursuant to regulation, personally interviewed a CO applicant.³⁵

Since the Review Board gave no reasons for its finding of Rosengart’s insincerity of belief, and since the district court spoke only in the most general terms with respect thereto, we have undertaken our own independent search of the record ³⁶ for facts upon which the Army determination should be appraised.³⁷ We have determined from our reading of the record that the Army had available to it a set of inconsistent statements, made by Rosengart within a two-month period in connection with two separate applications, which in all probability was not available to the four officers before whom Rosengart personally appeared at the initial stages of his AR 135-25 processing. This objective evidence, we believe, “substantially blurs the picture painted by [Rosengart] and thus casts doubt on his sincerity,” ³⁸ vitiates the importance of the two hearing officers’ recommendations (and also the purely advisory recommendations of the psychiatrist and chaplain) that Rosengart was sincere in his beliefs and that he, therefore, should be granted a CO discharge, and constitutes a “basis in fact” for upholding the determinations of the Army and the district court below.

The evidence to which we refer consists of arguably self-serving statements made by Rosengart with regard to the significance of his employment as a lawyer. On June 3, 1968, in support of his application for a hardship deferment, Rosengart stated that he had just passed the Patent Office bar examination which, in connection with his remunerative association with a patent law firm, would permit him to contribute greatly to the support of his incurably ill mother and unemployable father. Rosengart stated as follows:

“I recently passed the Patent Office bar examination and after this year I will be able to contribute about $3,-000.00 per year (which sum will grow each year as my income grows) to my family. This money will be desperately needed by my family.” ³⁹

What Rosengart failed to mention, however, was that since May 13, 1968, some three weeks earlier, he had taken a position as a staff attorney with New York’s Mobilization for Youth. This material fact, omitted in the June 3 letter, emerged in Rosengart’s August 1, 1968 CO discharge petition, as further proof of the sincerity of his beliefs in opposing all war. Rosengart stated, in pertinent part, that he was working at a salary

“equal to approximately 60% of the salary which I could be earning in industry or in business law firm. I intend, at enormous sacrifice in earnings [and impliedly to his family’s welfare], to devote my entire career to non-business public service work as a lawyer for poor people. I do not consider this a sacrifice — this is how I wish to live my life.” ⁴⁰

Despite the facts that Rosengart had been a civil rights worker in Mississippi who had been shot at, and that he had come to abhor violence and had accordingly participated in “a series of religiously oriented nonsectarian camps devoted to peaceful ideals,” we believe that the Army was entitled to draw the inference, not successfully rebutted here, that Rosengart as a matter of expedience had tailored his facts to fit the circumstances, to set aside or severely discount the importance of the hearing officers’ recommendations made on the basis of incomplete information, and to deny his discharge application on the ground of insincerity. We so hold without stating whether we would come to the same conclusion reached by the Army Board; that is not our function. The federal courts are not super-Army review boards entrusted with the responsibility and authority to substitute their own judgments as to the weight and sufficiency of the evidence in the record. Indeed, the standard for review is not “substantial objective evidence” or “substantial basis in fact,” but whether the record contains a “basis in fact” to support the Army’s determination.⁴¹ We hold that it does.

II.

Rosengart contends that the procedures employed by the district court in remanding his application to the Army several times denied him due process. The thrust of this argument must be that the Army must in the first and only available instance act in the most punctilious fashion in the consideration and determination of a CO discharge application or face the prospect of losing the services of one of its officers on the smallest procedural technicality. This has never been this court’s policy with regard to the relationship of the courts and the Armed Services, and we do not adopt so stringent a formulation here, which in the last analysis would perform a disservice to all concerned.

With respect to the first remand, we have an indication from the district court that prior to remanding it had available to it evidence already in the record “which affirmatively blurs the picture painted by petitioner and casts doubt on the sincerity and genuineness of his claim of beliefs which would debar active duty.” It is not unreasonable to infer, therefore, that the court in posing certain questions to the Army was acting out of an excess of caution on behalf of all parties, including Rosengart, to ensure that all regulatory procedures had been complied with in the determination of the Rosengart application. The second remand was also unnecessary to decision, but was within the court’s discretion to allow the Army to clear up its apparent misunderstanding with respect to the “requirement” that all CO applicants undergo post-service-entrance religious training. No actual prejudice to Rosengart resulting from this remand is alleged or apparent. Indeed, he had another full opportunity to prove the sincerity of his beliefs in opposition to war. The third remand, also unnecessary to decision, was for the inferable purpose of permitting the Army to reappraise an important but not controlling aspect of Rosengart’s case in the light of changing laws.

In short, the court in the interest of justice accorded both the Army and Rosengart a fair opportunity to have the application considered and decided in compliance with established procedural requirements and existing and changing substantive law, without prejudice to the rights of either side. This was an approach not without precedent.⁴²

The order dismissing the petition is affirmed.

1 . Tins apparently was not the first time Rosengart attempted to avoid military service. Letters from his former roommate, submitted in support of Rosengart’s application for a discharge as a conscientious objector, indicate that he sought to resign from ROTO while still at CCNY.

2 . Exhibits to Govt.Br. (AA) at AA8.

3 . AA9.

4 . Rosengart’s City College transcript reflects that he was an average student with approximately the same number of predominantly B’s and C’s, and approximately the same small number of A’s as D’s. AA14. His high school average upon graduation was 90.8. Id. Rosen-gart is presently a teacher at the NYU Criminal Law Clinic, “hardly a haven for underachievers.” Govt.Br. at 15.

5 . AA11.

6 . AA15.

7 . AA18; AA22.

8 . AA24.

9 . AA25.

10 . AA26.

In his letter dated May 28, 1968, Rabbi Jacob Goldberg stated the following:

“I have known Oliver and his family for many years. I have watched this young man grow into young manhood, and know him to be of excellent moral character, anxious and willing to do his duty for his country but equally anxious and compelled to fulfill his moral obligations toward his mother.”

As will be seen infra, the Army concluded that it was possible that Rosen-gart was anxious to do neither.

11 . AA27.

12 . AA29.

13 . Members of the Armed forces whose beliefs “crystallize” following entrance into military service may request discharge as CO’s therefrom pursuant to Department of Defense Directive 1300.6 (DoD 1300.-6). Appellant’s Appendix (A) at A155 et seq. The specific Army Regulation under which Reserve members apply is AR 135-25. The standards for determining OO exemption — i. e., the bases for beliefs and sincerity with respect thereto — are identical to those of the Selective Service System. The DoD and AR regulations provide for separate examinations before three officers: a psychiatrist, a chaplain and a “hearing officer” of grade 0-3 or higher, the last-mentioned of whom is to be “knowledgeable in policies and procedures relating to conscientious objector matters.” DoD 1300.6, par. VI.B.4; AR 135-25, par. 7.a(3)(c). These regulations emphasize the importance of the hearing officer, in that he is the only one of the three officers in the CO personal examination process required to “enter his recommendation and the reasons therefor into the [“201” personnel] file,” DoD 1300.6, par. VI.B.4 (a) ; AR 135-25, par. 7.a(3) (e), after giving a CO applicant a hearing in support of his application and after making any independent inquiry which he deems appropriate. The application, supporting papers and recommendation are then “forwarded together with any other pertinent information known to the immediate command, to Departmental Headquarters for individual determination of action on the basis of facts and the special circumstances of the case.” DoD 1300.6, par. VI.B.5.

14 . A25.

15 . A32.

16 . A33.

17 . A61-A73.

18 . The questions put to the Army by the district court were as follows :

“1. Did the Conscientious Objector Review Board find that petitioner’s opposition to war is not genuine or sincere on the basis of affirmative evidence in the 201 file going beyond mere disbelief?

“2. Did the Conscientious Objector Review Board find that the interviewers failed to appraise the applicant on the basis of evidentiary data or find that they failed to apply the correct standards to the facts considered?

“3. Did the Conscientious Objector Review Board construe the regulations to require proof that not only liad petitioner’s opposition to war matured after entry into military service but that religious training had occurred after entering military service?

“4. Did the Conscientious Objector Review Board construe the application as one for a discharge from all further obligation and not to perform alternate service wherever he may be directed; [and the Board is to state what treatment should be accorded to petitioner if it should ultimately be held that he should be excused from active duty] ?” A74-A75.

19 . A68.

20 . A92.

21 . A107-A113.

22 . A116-A119.

23 . 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965).

24 . 297 F.Supp. 902 (D.Mass.1969), appeal dismissed, 399 U.S. 267, 90 S.Ct. 2117, 26 L.Ed.2d 608 (June 29, 1970).

25 . 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970).

In Welsh the Supreme Court held that the Selective Service Act’s CO provisions applied to “all those whose consciences, spurred by deeply held moral, ethical, or religious beliefs, would give them no rest or peace if they allowed themselves to become a part of an instrument of war.” 398 U.S. at 344, 90 S.Ct. at 1798. The Court also held that the Act’s CO provision applied to those beliefs which “occupy in the life of that individual [holding the above-recited beliefs] ‘a place parallel to that filled by * * * God’ in traditionally religious persons.” 398 U.S. at 340, 90 S.Ct. at 1796.

26 . A135.

27 . A139.

28 . A140.

29 . A149-A153.

30 . 50 U.S.C. App. § 456(j).

31 . Cf. Witmer v. United States, 348 U.S. 375, 381-382, 75 S.Ct. 392, 99 L.Ed. 428 (1955) ; United States v. Abbott, 425 F.2d 910, 914-916 (8th Cir. 1970) ; Capobianco v. Laird, 424 F.2d 1304, 1306 (2d Cir. 1970).

32 . Cf. United States v. Washington, 392 F.2d 37, 39 (6th Cir. 1968) ; United States v. Corliss, 280 F.2d 808, 814 (2d Cir. 1960), cert. denied, 364 U.S. 884, 81 S.Ct. 167, 5 L.Ed.2d 105 (1960).

33 . United States v. Abbott, 425 F.2d 910, 913 n. 4 (8th Cir. 1970) and cases cited therein.

34 . 436 F.2d 751, 754, (2d Cir. 1971).

35 . See also United States ex rel. Tobias v. Laird, 413 F.2d 936, 937 (4th Cir. 1969) ; United States ex rel. Brooks v. Clifford, 409 F.2d 700, 705 (4th Cir. 1969).

36 . Cf. United States v. St. Clair, 293 F. Supp. 337, 341 (S.D.N.Y.1968).

37 . Rosengart argues that the district court, and the Government on appeal, have improperly relied upon facts not relied upon by the Army for its determination in denying him his CO discharge. See SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947). This contention would be correct only if the Army had relied exclusively upon the sources, as opposed to the sincerity, of Rosengart’s belief, as the basis for its decision. It did not do so, and our decision therefore does not suffer from the infirmity suggested.

38 . Batterton v. United States, 260 F.2d 233, 237 (8th Cir. 1958).

39 . AA28.

40 . A17.

A reading of the second hearing officer’s report leaves little doubt that Capt. Koch’s recommendation of sincere conscientious objection was based substantially on his belief in the substance of the above-quoted statement.

41 . Cf. Kessler v. United States, 406 F.2d 151, 156 (5th Cir. 1969).

42 . See Hammond v. Lenfast, 398 F.2d 705, 718 (2d Cir. 1968) (per curiam on rehearing) (remand to the Navy in the light of changed DoD regulations) ; cf. United States v. Gearey (I), 368 F.2d 144, 151 (2d Cir. 1966) (remand to Local Board to ascertain “precisely what [it] meant”).