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KATZ v. COMMANDING OFFICER

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


January 15, 1975

ALAN S. KATZ
v.
COMMANDING OFFICER v. SECRETARY OF THE AIR FORCE

The opinion of the court was delivered by: GORBEY

MEMORANDUM

 GORBEY, D. J.

 The case has been submitted to the court for its determination upon the following agreed statement of facts:

 1. Plaintiff, Alan S. Katz, is a Captain in the United States Air Force Reserves, presently in an inactive status, presently unattached to any Reserve unit, but assigned to the Air Force Reserve Personnel Center, Denver, Colorado.

 2. Plaintiff graduated from Oberlin College in 1964 with a B.A. Degree, and in 1969, he received a M.D. Degree from the Chicago Medical School.

 3. On October 4, 1969, plaintiff voluntarily enlisted in the United States Air Force in the Air Force Medical Early Commissioning Program (Berry Plan). Under this plan, medical doctors may enlist in the Air Force, and receive a deferment during their training period for internship and residency, and they may plan to go into the military service at the end of such training instead of facing the possibility of being drafted as a doctor at any time during this training.

 4. From July 1969 to June 1970, plaintiff served as an intern in internal medicine at Temple University Hospital, Philadelphia, Pennsylvania. From July 1970 until June 1971, plaintiff was a resident in internal medicine at the same hospital, and from July 1971 until June 1973, plaintiff pursued fellowship training in pulmonary diseases at Temple University Hospital and Philadelphia General Hospital. Plaintiff is presently serving as a staff physician in pulmonary diseases at the Philadelphia General Hospital (Hahnemann Medical Services).

 5. On August 24, 1972, plaintiff completed a "Specialty Training and Assignment Preference" form and returned this form to the Air Force Military Personnel Center (see nos. 13 and 14 infra).

 6. On March 29, 1973, plaintiff submitted a written application for a discharge as a conscientious objector pursuant to Air Force Regulation 35-24 (C2), by mailing such request to defendant, Commanding Officer.

 7. Thereafter, plaintiff received instructions from this defendant to complete the processing of such request in accordance with the Regulation by having three interviews. On May 15, 1973, petitioner was interviewed by Lieutenant Commander P. J. Sandler at the United States Naval Hospital, Philadelphia, Pennsylvania. On May 24, 1973, petitioner was interviewed by Lieutenant Commander John D. Griffith at the United States Naval Hospital, Philadelphia, Pennsylvania. On June 21, 1973, petitioner was interviewed by Lieutenant Commander Ruyle at McGuire Air Force Base, New Jersey.

 8. On June 22, 1973, petitioner picked up a copy of LTC Ruyle's recommendation, and on July 3, 1973, sent a response to this recommendation to respondent Commanding Officer in accordance with AF Regulation 35-24 (C2).

 9. On July 7, 1973, plaintiff filed a petition for a writ of habeas corpus, and on the same day moved this court for a temporary restraining order to prevent the defendants from ordering the plaintiff to active duty pending a decision on plaintiff's application for a discharge. An order granting such relief was signed by the Honorable Charles R. Weiner on July 7, 1973, and on July 16, 1973, by agreement of the parties and this court, the restraining order was extended until the Air Force could complete the processing of plaintiff's application for a discharge as a conscientious objector.

 10. On December 3, 1973, respondents denied petitioner's request for a discharge as a conscientious objector with the comment:

 

"You have not satisfied the burden of proof in establishing your entitlement to conscientious objector status because there is substantial evidence to show that your beliefs are not sincerely held but are being used as an expedient to avoid active military service."

 11. Thereafter, plaintiff filed an amended petition for a writ of habeas corpus based upon the denial of his application of a discharge as a conscientious objector.

 12. Counsel for the defendant has previously filed, with this court, the entire record, and this constitutes the record that was before the Air Force Personnel Board and the Secretary of the Air Force when they decided to deny plaintiff's application for a discharge as a conscientious objector. Neither the Air Force Personnel Board nor the Secretary of the Air Force personally met with the plaintiff, and the only facts before them were those contained in this record.

 13. On July 10, 1972, the Air Force Military Personnel Center sent to the plaintiff certain documents (which are attached to the agreed statement of facts and incorporated therein as Exhibit "A"). Included among these documents was a two page form entitled "Specialty Training and Assignment Preference", which was completed by the plaintiff and returned to the Air Force Military Personnel Center on or about August 22, 1972. (A copy of this form is attached to the agreed statement of facts and incorporated therein as Exhibit "B".)

 14. Plaintiff was never advised by the defendants or any other member of the United States Air Force, that the "Specialty Training and Assignment Preference" form, dated August 24, 1972, would be included in the record prior to a decision by the Secretary of the Air Force.

 A careful review of the record is required since the denial of conscientious objector status rests upon the contention of respondents that petitioner's "beliefs are not sincerely held but are being used as an expedient to avoid active military service."

 Certain well established principles of law must be kept in mind in evaluating the exhibits in the record upon which the adverse determination was made. The test for determining conscientious objector status is not whether one is "opposed to all war, 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). Also, if, as here "the issue is the registrant's [petitioner's] good faith belief, then there must be some inference of insincerity or bad faith." Witmer v. United States, 348 U.S. 375, 382, 99 L. Ed. 428, 75 S. Ct. 392 (1955).

 Since the decision of the Secretary of the Air Force is explained in the six page "Legal Review", prepared by the office of the Judge Advocate General, reference will now be made to that portion of the record utilized by the Secretary in reaching his conclusion that the conscientious objector beliefs were not sincerely held.

 On page one, in stating a chronology of events, the "Legal Review" recites that "21 March, 1973 -- ARPC issued Captain Katz's active duty orders, to be effective 4 July, 1973, with a reporting date of 8 July, 1973, assigning him to Tinker Air Force Base, Oklahoma, with TDY in route". The next event: "29 March 1973, Captain Katz made application for discharge based on CO beliefs". The timing of these two events assisted the Secretary in concluding that "The dilatory revelation by Captain Katz to the Air Force of his CO views, under the circumstances described raises a legitimate question as to Captain Katz's sincerity".

 There is nothing in the record to support the conclusion that the receipt of active duty orders preceded the forwarding of his application for a discharge. When reference is made to the pleadings, however, it is alleged in paragraph 8 of the petition for writ of habeas corpus that the orders were received after his application for conscientious objector status was forwarded to respondent. Even if we assume no inaccuracy as respects the two dates, any negative implication that could arise from the timing is negated by documentary evidence. The administrative record indicates that the reference letters were solicited in advance of the date on the active duty orders, 21 March, 1973, for the dates on the letters are as follows: Dr. Theodore Rodman February 5, 1973 Lt. Gerald Babbitt February 27, 1973 Professor Stanley Hopkins March 2, 1973 Stanley Ornstien March 2, 1973 Rabbi Herbert Stern March 3, 1973 Dr. Gilbert Bauman March 5, 1973 Dr. Sukhi Grover March 8, 1973 Rabbi Lewis Bogage March 22, 1973 Dr. Sidney Katz March 25, 1973 Mrs. Sissel Katz March 25, 1973

19750115

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