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VIOLI v. REESE

May 31, 1972

Dominic R. VIOLI, Plaintiff,
v.
Captain Walter H. REESE, Commanding Officer, Naval Air Facility, Warminster, Pennsylvania, et al., Respondents


Higginbotham, District Judge.


The opinion of the court was delivered by: HIGGINBOTHAM

HIGGINBOTHAM, District Judge.

 I

 Introduction

 The jurisdiction of this Court is predicated upon Title 28, United States Code, Section 2241, as amended, (1968). Petitioner, a seaman on active duty in the United States Navy, has alleged that the procedure employed by the Navy in processing his in-service request for discharge as a conscientious objector was violative of his Fifth Amendment right of due process of law. Petitioner also asserts that the decision of Bureau of Naval Personnel, on his application for discharge as a conscientious objector has "no basis in fact".

 Respondents, on the other hand, contend that there was a "basis in fact" for the Board's refusal to grant petitioner a discharge as a conscientious objector. Respondents also assert that the procedure employed by the Navy was correct and in accordance with the then applicable regulations.

 II. BACKGROUND

 Petitioner enlisted in the United States Navy on June 24, 1969. *fn1" Thereafter, on July 22, 1970, petitioner submitted a request for discharge from the Navy as a conscientious objector. Petitioner's application was submitted to his Commanding Officer, respondent Captain Reese, in accordance with the applicable Department of Defense and Navy regulations. At the time his application was submitted, petitioner was stationed at the Naval Air facility, located at Warminster, Pennsylvania. *fn2" Petitioner, as was his right, waived his right to a hearing before Captain Reese, his Commanding Officer. Thereafter, in accordance with Department of Defense directives (1300.6 (1968)) petitioner was interviewed by a Chaplain, his Commanding Officer, and examined by medical and psychiatric doctors. The report of the Chaplain, the medical doctors, and Commander Reese's recommendation was forwarded to the Bureau of Naval Personnel for their final determination of petitioner's request.

 Captain Reese, the Commanding Officer recommended that petitioner's request be granted. Captain Reese's report along with petitioner's "case file" was then forwarded to the Chief of Naval Personnel on July 31, 1970.

 On October 12, 1970, the Chief of Naval Personnel, after convening a board of review, denied petitioner's request. The basis of that denial was:

 
"2. Your request for discharge as a conscientious objector was considered by an appointed board in the Bureau of Naval Personnel. The board doubted the credibility of your claim of conscientious objection and recommended disapproval of your request. Reports of three separate psychiatric interviews indicate dissatisfaction with the Navy. The report of an interview held on 7 May 1970 states that you had conflict with authority and manipulated multiple transfers within the hospital and that some evidence of manipulation was noticed during the interview. The report of another interview conducted on 21 May 1970 indicated that you joined the Navy because you were angry with your parents and 'half drunk.' During the third psychiatric interview you are reported to have said, 'I made up the story of drug abuse to get out of the Navy,' when discussing an earlier medical referral for alleged drug abuse. In view of the above, your request is considered to be another manipulative attempt to be discharged and is not considered to be based on a credible claim of conscientious objection.
 
3. Accordingly, the recommendation of the board is concurred in and your application for discharge as a conscientious objector is consequently disapproved."

 It is apparent from the above statement that the Board premised its decision to deny on the basis of the adverse statements contained in the psychiatric reports, which were a part of petitioner's "case file".

 In attacking the board's refusal of his request petitioner asserts two primary grounds; both challenge the procedure employed by the Navy in processing his request. Petitioner's first contention is that the procedure employed lacked the "elementary requirements of due process", that is, the Navy did not afford petitioner access to the contents of his "case file" before it was forwarded to the Chief of Naval Personnel. Secondly, petitioner argues that he was denied due process of law because the Navy failed to follow its own regulations. *fn4"

 Respondents, on the other hand, vigorously assert that the procedure followed by the Navy was correct, and that there was a "basis in fact" for their refusal to grant petitioner's request. They rely, inter alia, on Estep v. United States, 327 U.S. 114, 66 S. Ct. 423, 90 L. Ed. 567 (1946), as authority for their position. The Estep, "any basis in fact" standard of judicial review in military matters is, of course, controlling on the substantive merits of petitioner's claim. However, the Supreme Court in Estep noted:

 
The decisions of local boards made in conformity with the regulations are final even though they may be erroneous. p. 122, ...

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