the administrative determination, the Writ should issue because the denial of conscientious objector status to one whose beliefs, although sincere, were not religiously motivated, would constitute a violation of the First and Fifth Amendments.
The government argues that this Court should not now independently review the matter before it but rather should send the case back to the Navy for another determination on the merits. It should be noted that the Navy has already had two opportunities to review petitioner's application - they denied his original request and refused to consider his second amended application. Also, no suggestion has been made that Koster did not follow the proper procedure in applying for his discharge. The implication in the government's request is that if the Navy misapplied the standards in this case, it would be more appropriate for the Navy to rectify the error rather than this Court. While we recognize and seek to foster the comity which exists between the military and the federal courts, we do not think that it is appropriate for a District Court to relinquish its reviewing powers where, as here, the claim is that the regulatory standards being applied to the petitioner are in themselves offensive to the Constitution. Even short of a constitutional attack on the administrative standards, recent decisions provide ample precedent for a federal court to accept jurisdiction at this stage of the proceedings to determine the factual adequacy of the military's administrative determination. Hammond v. Lenfest,
398 F.2d 705 (2d Cir. 1968); Brown v. McNamara, 387 F.2d 150 (3rd Cir. 1967), cert. denied sub nom. Brown v. Clifford, 390 U.S. 1005, 88 S. Ct. 1244, 20 L. Ed. 2d 105 (1968); United States ex rel. Brooks v. Clifford, 409 F.2d 700 (4th Cir. 1969); Crane v. Hedrick, 284 F. Supp. 250 (N.D.Cal.1968); Gann v. Wilson, 289 F. Supp. 191 (N.D.Cal.1968); Cooper v. Barker, 291 F. Supp. 952 (D.Md.1968); Packard v. Rollins, F. No. 2472 (W.D.Mo. April 11, 1969); Benway v. Barnhill, 300 F. Supp. 483 (R.I. June 20, 1969).
The government also contends that the doctrine set out in Orloff v. Willoughby, 345 U.S. 83, 73 S. Ct. 534, 97 L. Ed. 842 (1952), controls our case. In Orloff, the Supreme Court held that the federal courts are powerless to interfere with duty assignments of persons lawfully in the armed services. The government's reliance on this doctrine is misplaced for in the case at bar the question is not whether the petitioner has been improperly assigned to duty but rather whether the petitioner is lawfully or unlawfully detained in the Navy. This is an issue properly cognizable by the civilian federal courts.
III. EXHAUSTION OF REMEDIES
The government argues that Koster's petition to this Court is premature in that he has failed to exhaust remedies that are still available through military channels. While the government recognizes that language in the regulations would appear to make the determination by the Bureau of Naval Personnel "final",
they argue that although the petitioner has exhausted his administrative remedies, as that term is applied to the regulations, he has not exhausted the remedies available in the military process. In effect, the government contends that the petitioner must violate military law, subject himself to a court martial, and there plead his conscientious objection as a defense before a federal court could properly review the administrative determination made by the Navy. In support of this view we are directed to Noyd v. McNamara, 267 F. Supp. 701 (D.Colo.), aff'd, 378 F.2d 538 (10th Cir.), cert. denied, 389 U.S. 1022, 88 S. Ct. 593, 19 L. Ed. 2d 667 (1967), where the District Court refused to review the denial of the conscientious objector claim of an Air Force veteran of eleven years because his selective opposition to the war in Vietnam did not make him a total "pacifist".
We believe that Noyd can be read as simply reaffirming the doctrine set out in Orloff v. Willoughby, supra, that the civilian courts will not review military duty assignments.
Hammond v. Lenfest, supra; Crane v. Hedrick, supra; Packard v. Rollins, supra. Even if Noyd can be read as holding that exhaustion of military remedies would be incomplete if the petitioner has not subjected himself to a court martial, the Courts of Appeal for the Second and Fifth Circuits have subsequently decided to the contrary. Hammond v. Lenfest, supra (2d Cir. 1968); In re Kelly, 401 F.2d 211 (5th Cir. 1968). Additionally, in Brown v. McNamara, 387 F.2d 150 (3rd Cir. 1967) cert. denied sub nom. Brown v. Clifford, 390 U.S. 1005, 88 S. Ct. 1244, 20 L. Ed. 2d 105 (1968), our own Circuit Court of Appeals noted the existence of Noyd without deciding whether exhaustion by court martial was a prerequisite to relief in the civilian courts. Rather, the court considered the merits of the petitioner's contentions and rejected his claim on the ground that the action of the Army was not arbitrary. See also United States ex rel. Weidman v. Sweeney, 117 F. Supp. 739 (E.D.Pa.1953).
We think the better view is that explicitly expressed by the Second and Fifth Circuits, and implicitly by the Third Circuit, for otherwise the only way someone in petitioner's position could raise his constitutional claims of wrongful detention would be by first committing a military crime by disobeying an order and facing the possibility of imprisonment, as well as having to bear the stigma and attendant prejudices that attach to one dishonorably discharged from the armed forces. It should also be noted that the petitioner has no assurance that this route, if desired, would be available to him at all since the military authorities have the sole discretion to convene a court martial.
Furthermore, there is no indication that a court martial would consider the claim of conscientious objection if it were raised as a defense in the court martial proceedings. See Hammond v. Lenfest, supra; Cooper v. Barker, supra, 291 F. Supp. at 960 n. 11. For the above reasons, this Court rejects the assertion that the right to defend against a court martial is a realistic "remedy" available to the petitioner that must be exhausted before review by the civilian courts can be entertained.
IV. THE STANDARD OF "RELIGIOUS TRAINING AND BELIEF"
In the above-cited cases where the federal courts have accepted subject matter jurisdiction to pass on the factual adequacy of the military's administrative determination, the courts have generally adopted the "no basis in fact" standard as the applicable scope of review. Under such a test, the court must determine whether there was any basis in fact for the military's conclusion that at the time of filing the application for a conscientious objector discharge the petitioner would not have been classified as a conscientious objector if he were being considered for induction by the Selective Service System. Such an approach requires the examination of the administrative record to evaluate the strength and source of the petitioner's beliefs.
In this case, there is no question as to the applicant's sincerity. Both his commanding officer and the interviewing officer, who is skilled in these matters, attested to it, and the chaplain made no contrary statements. Further, the chaplain's and interviewing officer's finding that the petitioner's scruples were not based on any religious training and belief expresses the narrowest and most sectarian view of religion which has been held to be impermissible in parallel cases. United States v. Bowles, 131 F.2d 818 (3rd Cir. 1942), aff'd 319 U.S. 33, 63 S. Ct. 912, 87 L. Ed. 1194, rehearing denied, 319 U.S. 785, 63 S. Ct. 1323, 87 L. Ed. 1728 (1943); see also United States v. Seeger, 380 U.S. 163, 85 S. Ct. 850, 13 L. Ed. 2d 733 (1965), and cases following. Accordingly, we hold that the administrative finding that the petitioner is not entitled to discharge because his scruples are not a result of religious training and belief is not supported by any evidence in his record.
More fundamentally, even if there were some support for the administrative finding, we also hold that the standard of "religious training and belief"
is violative of the First Amendment stricture against the establishment of religion and of the Fifth Amendment's guarantee of due process of law. See United States v. Sisson, 297 F. Supp. 902 (1969) (per Wyzanski, J.).
As stated by the Supreme Court in Everson v. Board of Education, 330 U.S. 1, 15, 67 S. Ct. 504, 511, 91 L. Ed. 711 (1947):
"[The] 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. * * *"