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KATZ v. COMMANDING OFFICER

January 15, 1975

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



The opinion of the court was delivered by: GORBEY

 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 ...

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