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KOSTER v. SHARP

August 29, 1969

John William KOSTER
v.
Captain George J. SHARP, U.S.N., Commanding Officer Naval Station, Philadelphia, Pennsylvania, John H. Chafee, Secretary of the Navy, Washington, D.C., Melvin Laird, Secretary of Defense, Washington, D.C.



The opinion of the court was delivered by: MASTERSON

 This case raises the issue of whether an enlisted member of the United States Navy may be granted a Writ of Habeas Corpus on the ground that his Naval superiors improperly denied his request for a discharge from military service on the basis of conscientious objection to war.

 Since 1962 the Department of Defense has provided a procedure whereby servicemen who become conscientious objectors after their induction may apply for a discharge on this basis. These procedures are embodied in Department of Defense Directive (hereinafter "D.O.D.") 1300.6, which was issued on August 21, 1962, by the then Secretary of Defense pursuant to authority vested in him by 10 U.S.C. § 133. These regulations were amended effective May 10, 1968, 33 Federal Register No. 9, and have been supplemented by the Bureau of Naval Personnel Instruction (hereinafter "BUPERSINST") 1900.5 (July 18, 1968). According to these regulations, an applicant for a conscientious objector discharge is to provide information of his background and a written statement of the beliefs on which he founds his claim. The applicant is then to submit to a psychiatric examination and interviews by a chaplain and an officer knowledgeable in conscientious objector procedures and policies. The interviewers are to record their findings and recommendations and submit them to the commanding officer who, in turn, makes a recommendation on the basis of the information supplied to him. All of the above findings and recommendations, together with the original application, are then forwarded to the Bureau of Naval Personnel in Washington, D.C., where a "final" determination is made.

 Certain passages in D.O.D. 1300.6 suggest that complete discretion in dealing with in-service conscientious objectors is to be retained by the armed forces. Thus, it is stated that conscientious objectors "will be recognized to the extent practicable and equitable" *fn1" and "[administrative] discharge prior to the completion of an obligated term of service is discretionary with the military Service concerned." *fn2" However, the regulations incorporate by reference statutory standards which govern the determination of whether a conscientious objector discharge should be granted. These standards are the same as those used by the Selective Service System in passing on pre-induction requests for conscientious objector classification. *fn3" Generally, to be entitled to a classification as a conscientious objector, the registrant's objection to military service must be by reason of religious training and belief. *fn4" The term "religious training and belief" does not include essentially political, sociological, or philosophical views, or a merely personal moral code. *fn5" Also, the conscientious objection must be a general belief against participation in war in any form and not merely an objection to participation in a particular war. *fn6"

 I. FACTS

 The petitioner, John William Koster, is now and has been a practicing member of the Roman Catholic faith. Both of his parents are practicing Catholics, and one of his sisters is a nun. Koster attended Catholic parochial and high schools and completed almost two years at Cleveland State University before he decided, in January, 1968, to enlist in the United States Navy. *fn7"

 Koster successfully completed boot camp and was selected as the Honorman of his company. He participated in further Naval training and was then assigned to the U.S.S. Yosemite as a repairman. In October, 1968, he was scheduled to leave this station and begin advanced training at the Navy's Nuclear Power School, which required that he extend his military commitment from 4 to 6 years. Petitioner reported to this school in November, 1968, but did not enter the training program, allegedly because it was at this time that his gradually evolving beliefs of conscientious objection to war had crystallized, and he no longer felt himself capable of remaining a member of the military. *fn8"

 On or about February 7, 1969, Koster submitted his formal application for a conscientious objector discharge pursuant to D.O.D. 1300.6 and BUPERSINST 1900.5. *fn9" Substantively, Koster's views are expressed in the following passage from his application:

 
"My basic beliefs are those of Christ and his ideals. This belief is best expressed by saying that love of God is demonstrated by love of man. The word man - meaning all human beings, regardless of their beliefs, race, creed or nationality. I've found it often harder to live my beliefs than to acquiesce to the pressure of society. All men have their first obligation to their God and their beliefs; and it is from this obligation and love of God that we get the strength to resist society's pressures. It is a result of my desire to please God that I cannot reconcile the idea of taking another human life, nor supporting or belonging to an organization that does so. Being a military man or supporting the military means that I am willing to support killing, or actually kill, and I am not prepared to do that, for it is a contradiction of my beliefs. My love of God drives me to please Him, as it does any religious person, to the best of my capabilities regarding what I believe to be His laws. It was God who created me - not my society - and it will be He who will judge me - not my society - so I must obey what I believe to be His will and law."

 On March 10, 1969, Koster was interviewed by Lt. Douglas A. Faulkner, an officer knowledgeable in conscientious objector policies and procedures as required by D.O.D. 1300.6, VI. B. 4. In a letter submitted to the Bureau of Naval Personnel, pursuant to D.O.D. 1300.6, VI. B. 8. a. and BUPERSINST 1900.5, Lt. Faulkner concluded that Koster was sincere in his pacifist beliefs, but that his beliefs were founded on the "rather simplistic idea that the basis of the Catholic faith is the love of man and the love of God." Nevertheless, Faulkner recommended that since Koster was sincere in his beliefs he should be given non-combatant duties within the Navy.

 On November 15, 1968, and again on January 22, 1969, Koster was interviewed by Father Joseph Gallagher, a Catholic chaplain in the Navy. In his letter submitted to the Bureau of Naval Personnel, pursuant to D.O.D. 1300.6, VI. B. 8. b. and BUPERSINST 1900.5, Father Gallagher expressed the opinion that Koster's beliefs "are not based on any religious conviction, and certainly are not any part of the Catholic faith * * * In his confusion, it appears that he has dropped away, for the present, from his religious motivation, so that his present state seems to be more a confused rationalized inconsistent jumble of feelings and emotions against a reality that he naively finds is unpleasant because people are imperfect and violence is objectionable." *fn10"

 On April 8, 1969, after reviewing the above reports, Captain George F. Sharp, Koster's commanding officer, concluded that Koster was sincere in his stated beliefs, but that these beliefs "are not based on his religion or religious training but rather on his own self-styled philosophy and his over rationalization that the expressed purpose of the armed forces is just for the purpose of indiscriminate killing." However, since Koster was sincere in his beliefs, Captain Sharp recommended that he be assigned to non-combatant duties.

 Apparently disregarding Captain Sharp's and Lt. Faulkner's recommendation that Koster be assigned non-combatant duties, the Navy issued Koster orders to report to its Amphibious Warfare Training School at Little Creek, Virginia, where he was to train ...


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