The opinion of the court was delivered by: HANNUM
Dr. Czubaroff was graduated from Tufts University in June of 1965, and from Tufts University Medical School in June of 1969. During his last year of medical school, Dr. Czubaroff voluntarily enlisted in the United States Navy pursuant to the Berry Plan. The Berry Plan "is a military program made available to medical students which permits them to join the [Navy Reserve] as commissioned officers and to postpone active duty until medical studies are completed." Nurnberg v. Froehlke, 489 F.2d 843, 845 (2nd Cir. 1973).
Following medical school Dr. Czubaroff (Lt. USN-R) served his medical internship at the Boston City Hospital until June of 1970. Thereafter he began his residency program at the University of Pennsylvania Hospital. On October 4, 1972, Dr. Czubaroff filed a formal application for discharge as a conscientious objector.
The application was processed pursuant to Navy regulations. Accordingly, Dr. Czubaroff was interviewed by a Navy psychiatrist, Dr. Patrick Kamm, a Chaplain designated by the Navy, Charles Bechel, and an investigating officer, LCDR. Jack Kirbey, each of whom filed a report containing a recommendation of acceptance or denial of the application.
These reports were submitted to the Commandant, FOURTH Naval District, who in turn made his own recommendation.
The entire file with reports and recommendations was then forwarded to the Chief of Naval Personnel for final resolution.
On March 7, 1973, Dr. Czubaroff received from the Navy orders to report for active duty at the Philadelphia Naval Hospital on or before July 9, 1973.
On or about May 17, 1973, Dr. Czubaroff was advised by the Chief of Navy Personnel that his application for discharge as a conscientious objector was denied.
To forestall induction to active duty, Dr. Czubaroff filed on May 22, 1973, a petition for writ of habeas corpus. On July 5, 1973, this Court entered a temporary restraining order blocking induction. The Order was continued, pending receipt of the official record, until final disposition.
In the instant case, the Navy determined that Dr. Czubaroff's conscientious objector beliefs crystallized when he was in medical school or earlier, which, in any event, was prior to his enlistment in the United States Navy. On this basis the Navy denied the application for discharge. The authority for this denial is Navy Regulation BUPERSMAN 1860120 which provides that a request for discharge based solely on conscientious objection which existed but was not claimed prior to induction or enlistment shall not be considered. In other words, if one is a bona fide conscientious objector and nevertheless enlists in the Navy, the right to thereafter seek a discharge on conscientious objector grounds is waived. Thus, the Navy's denial, if there is any basis in fact in the record to support it, is inescapable. Moreover, the Navy's denial, if there is any basis in fact to support it, must be upheld.
This Court is mindful that it must not act as a superboard; the weight or substantiality of the evidence is not for our evaluation. Witmer v. United States 348 U.S. 375, 380-381, 99 L. Ed. 428, 75 S. Ct. 392 (1955). Nevertheless, there must be some facts -- hard, provable, reliable facts -- that provide a basis for ...