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July 8, 1971

Judson BROWN
Melvin LAIRD, Secretary of Defense, et al.

Vanartsdalen, District Judge.

The opinion of the court was delivered by: VANARTSDALEN

VANARTSDALEN, District Judge.

 The petitioner, Judson Brown, filed a petition for a writ of habeas corpus, seeking (1) discharge from the Army Reserves; and (2) an injunction against an order directing him to report for active duty training.

 For several months prior to January, 1970, petitioner made strenuous efforts to enlist in a specialized reserve unit, the 416th Civil Affairs Company, U.S.A.R.C., 1020 Sandy Street, Norristown, Pennsylvania 19401. He was finally accepted and on January 25, 1970, he was enlisted in that unit. Approximately two months later, on March 31, 1970, petitioner sought a discharge as a conscientious objector. The application was forwarded to the Department of the Army, Fort Benjamin Harrison, Indianapolis, Indiana 46249. On May 8, 1971, petitioner was notified that his application for discharge was "disapproved." The present petition was filed on May 25, 1971 together with a motion for both a temporary restraining order and a preliminary injunction seeking to prevent the Army from directing petitioner to report for active duty training.

 The hearing on the motion for a temporary restraining order was held on May 27, 1971. As of that date, petitioner had not been ordered to report for active duty training, and the preliminary relief sought was denied as being premature. Thereafter, petitioner was directed to report for active duty training at Fort Jackson, South Carolina, by June 3, 1971. A renewed application for a temporary restraining order was made and hearing was fixed for June 2, 1971. Solely because the full service record file relating to petitioner's application for discharge was not then available in court, and because irreparable harm would be caused if petitioner was improperly required to report for active duty training outside of this District, a temporary restraining order was entered, and hearing fixed for June 14, 1971.

 At the hearing on June 14th the government presented in evidence the entire file concerning petitioner's application for discharge. Petitioner offered no evidence although afforded an opportunity so to do. Instead, petitioner's counsel argued extensively his contention that the record was deficient in that it failed to disclose any basis in fact for the rejection of petitioner's application.

 During the June 14th hearing, petitioner's counsel made what would appear to be an oral application that the Court require the government to produce Lieutenant Colonel Seely (applicant's unit commander), and Major Leedom (the hearing officer) for cross-examination concerning the reasons why they found applicant to be insincere. Alternatively, petitioner's counsel requested these officers be produced for deposition. Petitioner had made no attempt to subpoena those officers as witnesses, nor had he made formal application that they be produced at the hearing. Aside from these technical deficiencies in petitioner's motion, this Court's review is limited to the record itself; and, therefore, interrogation of either of the members of the conscientious objector review board, or any other persons whose reports, recommendations and opinions are required by Army Regulations to be included in the file and considered by the Board would be impermissible. In Clay v. United States, 397 F.2d 901, 915 (5th Cir. 1968), reversed on other grounds, 403 U.S. 698, 91 S. Ct. 2068, 29 L. Ed. 2d 810 (1971), the court stated that "It would have been grossly improper [for the district court] to place the members of the Presidential Appeal Board and the Texas Appeal Board on the witness stand to determine from them what their reasons were for the selective service classification which they gave to appellant * * *." The district court was deemed to have acted properly by quashing the subpoenas issued for the board members. I find no logical distinction between that case and the present situation.

 In selective service classification cases the scope of review is limited to a review of the record to ascertain if there was "a basis in fact" for the board's determination. Witmer v. United States, 348 U.S. 375, 75 S. Ct. 392, 99 L. Ed. 428 (1955); Dickinson v. United States, 346 U.S. 389, 74 S. Ct. 152, 98 L. Ed. 132 (1953); Estep v. United States, 327 U.S. 114, 66 S. Ct. 423, 90 L. Ed. 567 (1946). The same tests are to be applied when a member of the Armed Forces seeks discharge as a conscientious objector by a writ of habeas corpus. Gillette v. United States, 401 U.S. 437, 91 S. Ct. 828, 28 L. Ed. 2d 168 (decided March 8, 1971); United States v. Freeman, 388 F.2d 246 (7th Cir. 1967); Ex Parte Stanziale, 138 F.2d 312 (3rd Cir. 1943), cert. denied, Stanziale v. Paullin, 320 U.S. 797, 64 S. Ct. 267, 88 L. Ed. 481 (1943).

 The "basis in fact" test forbids the Court from sitting as a super draft board and reviewing and re-weighing the evidence, or rejudging its substantiality. Witmer v. United States, 348 U.S. 375, 380-381, 75 S. Ct. 392, 99 L. Ed. 428 (1955); Landau v. Allen, 424 F.2d 668, 671 (6th Cir. 1970); United States v. Griffin, 324 F. Supp. 545 (E.D. Pa. 1971).

 If a prima facie case has been made out, "[the] task of the courts * * * is to search the record for some affirmative evidence to support the local board's overt or implicit finding that [applicant] has not painted a complete or accurate picture of his activities." Dickinson v. United States, supra, 346 U.S. at p. 396, 74 S. Ct. at p. 157. The Dickinson case stated that the court is not bound by the traditional rules of evidence and that the entire file may be reviewed for the purpose of ascertaining if there is some affirmative evidence to support the board's finding. Id.

 The Court in United States v. Broyles, 423 F.2d 1299 (4th Cir. 1970), adopted the more restrictive rule that in selective service cases where a prima facie case of conscientious objection is stated, the board must "state its basis of decision and the reasons therefor, i.e., whether it has found the registrant incredible, or insincere, or of bad faith, and why." Id. at 1304. This requirement was adopted by the Third Circuit in Scott v. Commanding Officer, 431 F.2d 1132, 1137 (1970).

 The record in this case clearly indicates that the board unanimously determined that the applicant did not qualify as a conscientious objector. The board found the following grounds for rejecting the application:

 1. The applicant's alleged conscientious objector beliefs are not sincerely held.

 2. The applicant's beliefs "are not grounded in religious training and belief (to include strongly held moral and ethical convictions)." The phrase in parenthesis was apparently inserted in recognition of the test for conscientious objector status, as laid down in United States v. Seeger, 380 U.S. 163, 85 S. Ct. 850, 13 L. Ed. 2d 733 (1965) and clarified in Welsh v. United States, 398 U.S. 333, 90 S. Ct. 1792, 26 L. Ed. 2d 308 (1970), which defines "religious belief" to include situations where the opposition to war stems from the registrant's moral, ethical or religious ...

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