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
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