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CZUBAROFF v. SCHLESINGER SECY. OF DEFENSE OF THE U

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


November 7, 1974

VALENTINE BORIS CZUBAROFF
v.
JAMES R. SCHLESINGER, Secretary of Defense of the United States and JOHN W. WARNER Secretary of the United States Navy and CAPTAIN GEORGE E. CRUFT Commanding Officer UNITED STATES NAVAL HOSPITAL Philadelphia, Pennsylvania

The opinion of the court was delivered by: HANNUM

OPINION AND ORDER

 OPINION AND ORDER

 HANNUM, Judge.

 Petitioner, Dr. Valentine B. Czubaroff, seeks a writ of habeas corpus to compel his release from the United States Navy as a conscientious objector. *fn1"

 FACTS

 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. *fn2" 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. *fn3" These reports were submitted to the Commandant, FOURTH Naval District, who in turn made his own recommendation. *fn4" 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.

 SCOPE OF REVIEW

 Our review of military determinations made by an official or review board is limited to "whether there is a basis in fact in the record for the military determination." Estep v. United States 327 U.S. 114, *fn5" , 90 L. Ed. 567, 66 S. Ct. 423 (1945).

 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 the Navy's determination. Helwick v. Laird 438 F.2d 959, 963, (5th Cir. 1971).

 ISSUE

 In view of the foregoing, the issue before the Court is whether there is a basis in fact in the record for the Navy's determination that Dr. Czubaroff's conscientious objector beliefs crystallized prior to his enlistment in the United States Navy?

 DISCUSSION

 We acknowledge at the outset the great difficulty faced by the Navy in determining when an individual's views on a serious subject crystallize. A determination which must be deducted from an admittedly "imprecise psychological process." Goodwin v. Laird 317 F. Supp. 863, 866. (N.D. Calif. 1970).

 Nevertheless, we begin our review of the Bureau of Naval Personnel's denial of Dr. Czubaroff's application for discharge as a conscientious objector to see if there is any basis in fact in the record for the denial.

 The Bureau of Navy Personnel assigned three reasons for the denial: *fn6" (1) the recommendation of the Commandant, FOURTH Naval District that the application be denied; (2) the recommendation of the investigating officer that the application be denied; (3) Dr. Czubaroff's application for discharge.

 The recommendation by the Commandant, FOURTH Naval District is insufficient on its face since it is not supported by reference to any facts in the record at all. At best it is based on an impression of the application; an impression which clearly fails to satisfy the basis in fact requirement; and which, therefore, cannot be a basis on which to deny the application.

 The recommendation by the investigating officer LCDR Kirbey, concluded that Dr. Czubaroff's "views crystallized some time ago." However, earlier in the same report Kirbey stated: "It appears that Lt. Czubaroff's internship and psychiatry residency were the formative years when the views, more or less, crystallized regarding the position he takes as a conscientious objector." This latter observation is mutually exclusive with Kirbey's conclusion that Dr. Czubaroff's conscientious objector beliefs crystallized ante-enlistment. In fact, a fair reading of this latter observation would more properly indicate that Dr. Czubaroff's beliefs had crystallized after his enlistment. From this inherent contradiction in Kirbey's report, we conclude that it can provide no factual basis whatsoever for the Navy's decision to deny Dr. Czubaroff's application for discharge.

 The final reason assigned by the Navy for denial of the application is based on the Navy's analysis of the application itself. *fn7" The Chief of Naval Personnel concluded that "by your own admission at three or more points in your application . . . your alleged beliefs existed while you were in medical school or earlier and before you applied for the Berry Plan . . ." The Chief of Naval Personnel's report supports this conclusion by specific reference to four passages in Dr. Czubaroff's application. Because of their significance, we quote each in its entirety:

 

"Of course, I had learned at home, and had always felt that (sic) horror and opposition to physical violence and war, but it took my immediate confrontation with human suffering on the hospital wards, and my potential involvement in an actual war situation for my views on the opposition to war to crystallize.

 

Finally, when my medical school graduation was imminent, I, as did most of my friends, applied for a Berry Plan deferment, in the hope of putting off military service in Vietnam for another four years. This action, in a way, gave me another four years before I had to seriously confront the conflicts I felt between my own personal beliefs and values and those of the military institution.

 

As I began to think seriously about these issues, I found that my long standing opposition to war extended to a strong repugnance for the whole idea of a military organization.

 

My beliefs were not fully crystallized until my college and medical years."

 Before examining these passages to determine whether any or all provide a basis in fact for the Navy's denial, we note the inherent problems in "lifting" quotations from a lengthy discourse. Because the military board must assign reasons for their decision, this technique is to some extent necessary. Therefore, in fairness to both sides, we shall examine the quotations individually and contextually.

 The first quotation reveals that Dr. Czubaroff always felt some opposition to war and this opposition crystallized with his confrontation with human suffering in the hospital wards and his potential involvement in a war situation.

 It is well-settled that the test for determining conscientious objector status is not whether one is "opposed to all wars, but whether [one] is opposed . . . to participation in war." Sicurella v. United States, 348 U.S. 385, 390, 99 L. Ed. 436, 75 S. Ct. 403 (1955). (original emphasis). It follows therefrom that since opposition to war cannot prove conscientious objector status, neither can the crystallization of that opposition provide a factual basis for the Navy's denial. Thus we conclude that the first quotation provides no basis in fact on which to deny Dr. Czubaroff's application for discharge.

 The second quotation appears to be an admission by Dr. Czubaroff that he applied for the Berry Plan without seriously considering the consequences. It may be naive and insincere of a well-educated man to make a decision of this significance without reflection, but maturity and sincerity are not here at issue. The issue is whether this statement provides a basis in fact for a finding that Dr. Czubaroff's conscientious objector beliefs crystallized prior to enlistment. Clearly it cannot. The words themselves refute such a conclusion. In fact, the converse is more properly deducted: that Dr. Czubaroff did not resolve the "conflict" in his mind until after enlistment. A reading of the entire application supports this conclusion. Neither then can the second quotation provide a basis for the Navy's denial.

 The third quotation finally links Dr. Czubaroff's opposition to war and his "inability" to participate in a military organization. The question is, of course, when did he begin "to think seriously about these issues." The preceding sentence provides the answer: "Once this four year grace period was assured, and once the academic pressures of medical school diminished, I was able to devote more time . . . to learning about . . . war . . . and about the military organization. . . . "

 Thus, there is no doubt but that, according to the above statement, Dr. Czubaroff began to think seriously about these issues only after his enlistment. Therefore, this quotation, examined in context, provides no basis in fact for the denial.

 The final quotation recites that Dr. Czubaroff's "beliefs" crystallized in his college and medical years. Apart from what is meant by "medical years," serious question arises as to what is meant by the word "beliefs." An examination of the word "beliefs" in context shows that it refers back, in the preceding sentence, to the word "humanism." *fn8" To conclude therefrom that Dr. Czubaroff was a conscientious objector prior to enlistment simply because he was a humanist in college offends both logic and common sense. At any rate, it is not a conclusion which is based on the hard, provable, reliable facts that is required. Thus, careful not to substitute our judgment on the weight of the evidence for that of the military board, Witmer v. United States, 348 U.S. 375, 380-381, 99 L. Ed. 428, 75 S. Ct. 392 (1955), we conclude that this quotation provides no evidence, no basis in fact, for the Navy's denial of the application.

 For all of the foregoing reasons we conclude that this report by the Chief of Naval Personnel contains no basis in fact on which to deny Dr. Czubaroff's application for discharge. *fn9" We are mindful that if there is any objective evidence, even though not predominant or substantial, the finding of the Navy must be sustained. United States ex rel. Donham v. Resor, 436 F.2d 751 (2nd Cir. 1971). In this regard, we have examined the entire administrative record and we find no basis in fact for the Navy's denial of Dr. Czubaroff's application for discharge as a conscientious objector.

 Whether Dr. Czubaroff's conscientious objector beliefs are long-standing or short-lived, sincere or dubious, must be drawn from the record. Whether they are valid or vain is not before us. *fn10"

 Thus, for the foregoing reasons Dr. Czubaroff's petition for a writ of habeas corpus is granted.

 ORDER

 AND NOW, this 7th day of November, 1974, it is ORDERED that Dr. Czubaroff's petition for habeas corpus is GRANTED. The effective date of this ORDER is stayed for thirty (30) days to permit Respondents to appeal if so minded. Petitioner will be discharged at that time or whenever non-appeal is formally indicated, whichever date is earlier.

 John B. Hannum

 J.


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