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April 20, 1972

Wayne M. LOGEMANN, B661015
Melvin LAIRD, Secretary of Defense, et al.

Huyett, District Judge.

The opinion of the court was delivered by: HUYETT

HUYETT, District Judge.

 Petitioner seeks a writ of habeas corpus ordering his discharge from the Navy as a conscientious objector.

 Wayne M. Logemann, the petitioner, entered active duty in the Navy on February 2, 1970. After being trained as a hospital corpsman, he was stationed at the United States Naval Hospital, Philadelphia, Pa. in September 1970. On February 2, 1971, Logemann refused to report for work at the hospital on the ground that his conscience would no longer permit him to participate in the military. He then spent some time in the brig awaiting Court Martial for failure to report to work. He was released from the brig, however, and his Court Martial was continued when he agreed to cooperate with the Navy for two months while a conscientious objector (C.O.) discharge application was processed. On March 30, 1971, Logemann filed his first application for C.O. discharge. On July 12, 1971, Logemann's Summary Court Martial was completed and he was sentenced to a forfeiture in pay of $95 and reduction in rank to E-1. On August 26, 1971, after interviews with a Navy psychiatrist, chaplain, and field grade officer, Logemann's first C.O. discharge application was disapproved as a "manipulative attempt to obtain a discharge, not motivated by a deeply held moral, ethical, or religious objection to all war."

 On November 10, 1971, Logemann filed a reapplication for a C.O. discharge. This second application was clearly more detailed than the first and rebutted the impression apparently held by the Navy that Logemann had previously sought a psychiatric discharge. On November 11, 1971, Logemann was sent to another Navy psychiatrist, Dr. D. F. Holt, who concluded that there was "no reason to question the sincerity of his application." Nevertheless, the Navy had Logemann interviewed again on November 18, 1971 by Navy Chaplain Donald K. Muchow -- the very same chaplain who interviewed him in connection with his original application. Chaplain Muchow again expressed the feeling that Logemann was manipulative and questioned his sincerity. Thereafter, on December 8, 1971, Logemann's Commanding Officer, Captain L.T. Brown, relying on Navy regulation BUPERSNOTE 1900, § 15(f) of October 8, 1971, returned the reapplication without action on the ground that it was essentially the same as a previous one disapproved by the Chief of Naval Personnel.

 Logemann then informed his superiors that he would refuse to work at the Naval Hospital after the first of the year. When he refused a direct order to report to his job on January 3, 1972, Naval authorities had him arrested and commenced Court Martial proceedings against him. On January 11, 1972, Logemann filed the instant petition for a writ of habeas corpus. Meanwhile, on March 20, 1972, Logemann was found guilty in a Special Court Martial of violating a lawful order to go to work and was sentenced to a bad conduct discharge, confinement at hard labor for four months, and forfeiture of $190 per month for four months.

 Initially, Logemann's petition alleges that the Navy failed to follow its own regulations in considering his reapplication Paragraph 15(f) of BUPERSNOTE 1900 (8 October 1971) provides:

"Commanding officers are authorized to return to an applicant, without action, any second or subsequent application that is based upon essentially the same grounds, or supported by essentially the same evidence, as a previous application disapproved by the Chief of Naval Personnel. This authority does not preclude forwarding such an application if the commanding officer considers that review of the application may be warranted."

 Logemann's reapplication, however, was substantially more elaborate and detailed than his original application. In fact, Logemann's Commanding Officer, Captain Brown, must have had some doubts about the similarity of the two applications because he did not return the reapplication to Logemann immediately. Instead, he sent Logemann to a Navy psychiatrist, Dr. Holt, who found petitioner sincere, and once again to Chaplain Muchow who conceded that differences existed between the first and second applications. Captain Brown then decided to return the reapplication to Logemann without action, apparently on the strength of Chaplain Muchow's conclusion that Logemann was insincere and that the reapplication was basically the same as the original one.

 Captain Brown's action appears to fall somewhere between fully processing the reapplication and returning the reapplication completely without action. Since Captain Brown had sufficient doubt about the reapplication to merit having Logemann interviewed again by a Navy psychiatrist and a Navy chaplain, the applicable Navy regulation, fundamental fairness, and common sense dictate that the reapplication should have been fully processed. A complete processing would have entitled Logemann to a hearing before an investigating officer of the grade of lieutenant commander or above qualified to conduct the interview. BUPERSNOTE 1900, paragraph 10 (8 October 1971). He would also be entitled to be represented by counsel at such hearing, to present a case in his own behalf, and to rebut any adverse material in the record. By giving Logemann less than his full procedural rights, Captain Brown did not properly follow the Navy regulations.

 In addition to the Navy's conduct in processing Logemann's reapplication, the petition also challenges the denial of his original application. It alleges that there was no basis in fact for the denial by the Bureau of Naval Personnel of his original application for C.O. discharge. This, of course, is the only ground on which this Court could set aside the Navy's disposition of petitioner's original application, since the Navy accorded him all his procedural rights with regard to that application. See, e.g. United States ex rel. Armstrong v. Wheeler, 321 F. Supp. 471, 478 (E.D. Pa. 1970). In this respect this Court is sensitive to the fact that it must not act as a superboard and weigh the evidence or judge its substantiality. Witmer v. United States, 348 U.S. 375, 380-381, 75 S. Ct. 392, 99 L. Ed. 428 (1955). Nevertheless, the Navy ". . . is not vested with unbridled and unfettered discretion in evaluating the evidence submitted in support of conscientious objector claims. [citation omitted] . . . [The Navy] is not at liberty merely to disbelieve the claimant. There must be some facts in his application -- hard, provable, reliable facts -- that provide a basis for disbelieving the claimant." Helwick v. Laird, 438 F.2d 959, 963 (5 Cir. 1971). It is within this framework that the file must be reviewed to determine whether any basis in fact existed for the Bureau of Navy Personnel's conclusion that Logemann did not sincerely hold views against participation in war in any form.

 The August 26, 1971, letter from the Chief of Naval Personnel to Logemann disapproving his application and labeling it a "manipulative attempt to obtain a discharge" relied upon the following factors: (a) the fact that Logemann contacted the Draft Information Center in December of 1970 because he was "disgruntled with the Navy and wanted a discharge."; (b) the belief that Logemann sought a C.O. discharge only after an attempt to obtain a psychological discharge failed; and (c) the conclusion of Chaplain Muchow that Logemann's application was insincere and lacked depth of belief.

 Merely because Logemann admittedly wanted a discharge and contacted the Draft Information Center does not demonstrate insincerity. The difficulties of accomplishing an application for a C.O. discharge are considerable and the decision to seek expert advice is understandable. United States ex rel. Greenwood v. Resor, 439 F.2d 1249, 1252 (4 Cir. 1971). In addition, Logemann's admitted desire for a discharge does not indicate insincerity since there is no evidence in the record to indicate that he would engage in falsehood to get out of the service. Helwick v. Laird, supra, 438 F.2d at 964-965.

 The assumption that Logemann sought a C.O. discharge only after an attempt to obtain a psychological discharge failed was simply erroneous as was ...

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