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EPSTEIN v. COMMANDING OFFICER
June 14, 1971
William EPSTEIN, Private, U.S. Army Reserve,
COMMANDING OFFICER, Armed Forces Training and Entrance Station and Commanding Officer, First U.S. Army, USAR Control Group, Ft. Geo. G. Meade, Md. and The Honorable Stanley Resor, Sec. of the Army
Troutman, District Judge.
The opinion of the court was delivered by: TROUTMAN
TROUTMAN, District Judge.
In this combined habeas corpus and mandamus proceeding, petitioner seeks to review his call to active duty in the United States Army. He was called to active duty for a period of two years in an enlisted grade as a result of his disenrollment from ROTC for willful violation of his ROTC contract. Petitioner's basic claim is that he was denied due process of law in that the military personnel processing his case at various stages of the proceedings failed to assist him in processing a request for a conscientious objector discharge as was required by Army regulations. The facts, as far as they can be determined from the documents submitted by counsel, are summarized as follows:
On September 25, 1967, petitioner enlisted for a six-year commitment, in the United States Army Reserve as a part of the advanced ROTC program at Penn State University. He was assigned to the United States Army instructor group at Penn State under the command of Colonel Arthur A. Gottlieb, Professor of Military Science (PMS). While at Penn State, petitioner pursued his normal course of ROTC study. He had one academic deficiency, but at his request was permitted to continue in the program. Petitioner's summer camp training originally scheduled for the summer of 1968 was delayed until 1969 to allow him to accept a summer employment internship related to journalism, his chosen field of study. Prior to summer camp, petitioner received notification that he had been assigned to the infantry branch of the Service. Thereafter, he tried unsuccessfully both in May and June 1969, to get a change of branch assignment. Sometime in the latter part of June, 1969, prior to the date scheduled for summer camp, petitioner went to his PMS Colonel Gottlieb and in certain conversations with him sought to be released from ROTC, from summer camp and from the Reserves.
This effort was also unsuccessful and petitioner reported to summer camp as scheduled, on June 21, 1969. He attended and participated in his training program until he voluntarily and without permission withdrew from camp on July 25, 1969. Prior to his withdrawal, petitioner sent the following letter dated July 23, 1969, to the Commanding Officer of the summer camp:
"Request release from 1969 Advanced ROTC camp for the following reasons: For sometime I have realized that certain personal convictions would prevent me from accepting without reservation an officer's commission in the U.S. Army. Although my convictions have been known previously to my Professor of Military Science (Col. Arthur Gottlieb, the Pennsylvania State University), I attended camp in the hope that I might avoid 'quitting' the ROTC Program. I was seeking, in other words, a mutual termination of my contract with the U.S. Army.
At this time it appears that I have exhausted all available channels in seeking such a termination. I therefore find it necessary to state that I am leaving camp because it is highly unlikely that I will accept a commission at the end of this training.
Penna. State University ROTC Cadet."
Petitioner's request to leave camp was disapproved by the Camp Commander as not being in the best interests of the United States Government and, as previously noted, petitioner withdrew from camp without permission. After his withdrawal, petitioner was notified by letter dated July 31, 1969, that disenrollment proceedings would be instituted against him for willful evasion of his ROTC advanced course contract. On September 17, 1969, a board of four officers was convened in accordance with Army regulations
to determine whether petitioner willfully violated the terms of his ROTC contract and if so what action should be taken. Petitioner appeared without counsel by his own choice. There he stated that he did not want to give the impression that his actions were spontaneous, but rather that he had arrived at his decisions after a great deal of self-examination. The following coloquy appears in the summary of the proceedings:
"Ques. What was your initial choice of branches for commission?
Ans. AG, Signal Corps and Artillery.
Ques. Would you accept a commission in another branch of service other than Inf. which you received?
Ans. No, not without reservations.
Ques. What are these reservations?
Ans. Do not feel the war in RVN is justified. Duty in any branch of the service which directly deals with this war violates my principles.
Ques. If there were no war would you accept a commission?
Ques. Do you have reservations about service in the military?
Ans. I am disturbed and undecided about this same question which I have been trying to answer ...
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