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March 25, 1981

Dennis K. MASSER
Commander M. B. CONNOLLY, Commander of the U.S.S. Portland; Rear Admiral Carl A. Brettschneider, Commanding Officer of the Philadelphia Naval Base; and Edward Hidalgo, Secretary of the Navy

The opinion of the court was delivered by: BECHTLE


Presently before the Court are cross motions for summary judgment in this civil action in which petitioner seeks a writ of habeas corpus discharging him from the United States Navy as a conscientious objector. Petitioner filed this action upon the Navy's denial of his application for discharge. For the reasons stated below, the Court finds no basis in fact for the Navy's decision. Accordingly, the writ will be issued.


 Petitioner became a born-again Christian in October of 1973. In April of 1976, he joined the Brethren in Christ Church, whose tenets include opposition to war in any form and opposition to military service. At first, petitioner did not fully accept these particular doctrines and on May 3, 1976, petitioner enlisted in the United States Navy for four years with an agreement to extend the enlistment for two years a total of six years.

 Petitioner first began to see a conflict between his religious beliefs and continued military service while still in basic training. Complaint, Ex. A, at 6. From September of 1976 to January of 1977, while stationed in San Diego, California, petitioner attended church three times a week and had regular fellowship with persons who could not attend church. Complaint, Ex. A, at 9. Also during this period, he met several times with a pastor who taught him that "Christ was the way of peace, and only peace." Complaint, Ex. D, at 3.

 During 1977, while petitioner was serving in the Mediterranean aboard the U.S.S. PORTLAND, he read the Bible daily and joined Bible-study groups two or three times each week. Complaint, Ex. A, at 5. In January of 1979, petitioner became Protestant Lay Leader on the U.S.S. PORTLAND. Complaint, Ex. A, at 5.

 In December of 1977, while in the Mediterranean aboard the U.S.S. PORTLAND, petitioner went to a chaplain for help, explaining that he "could not believe that God wanted us to kill." He asked the chaplain whether there was anything he could do. Complaint, Ex. D, at 3. The chaplain simply replied that one must obey the Government and that there was little to do but await the end of his term of enlistment. It was not until July of 1979 that petitioner first learned there was a procedure by which persons who became conscientious objectors while in the military could seek a discharge. Complaint, Ex. D, at 5. At this time, however, petitioner was still not certain what course of action he should take.

 Meanwhile, in mid-October of 1979, to provide additional income to support himself and his wife, petitioner took a part-time job as a gate guard in a university parking lot, checking parking stickers on cars as they entered the lot. In late-November of 1979, petitioner's employer asked him to carry a hand-gun and patrol the grounds. Petitioner "finally agreed." Complaint, Ex. D, at 7. In early-December, however, an incident occurred in which petitioner thought a fellow guard might have to use his gun. Petitioner then knew he had to quit the job and did so within the week despite his continuing need for additional income. Id.

 By the end of December, 1979, petitioner knew he could not continue to serve in the military and began his application for discharge as a conscientious objector. The application was completed in March of 1980 and consisted of 11 pages of answers to the questions posed in Navy regulations. Complaint, Ex. A. See 32 C.F.R. § 730.18(e)(2). Also attached were 9 letters of support from individuals recommending that the Navy approve petitioner's application.

 Pursuant to Navy regulations, petitioner was interviewed by a chaplain, a psychiatrist and an investigating officer. The chaplain submitted a letter stating that he found the petitioner to be sincere in his opposition to war in any form and, therefore, recommended discharge. Complaint, Ex. E. The psychiatrist found no signs of any mental illness or imbalance and described petitioner as "a sensitive, friendly, sincere young man who has a tendency to worry." Complaint, Ex. F. The investigating officer and petitioner's commanding officer, however, disagreed with the chaplain's recommendation. Since their recommendations are the principal reasons for the Navy's decision to deny petitioner a discharge, the Court will review them in detail.

 The investigating officer first reviewed the facts which he believed required the Navy to deny the discharge. He noted that petitioner enlisted in the Navy two and one-half years after he joined the Brethren in Christ Church, despite having been "counseled many times on the Brethren in Christ Church's doctrinal views regarding military service." The investigating officer also noted that "(it) was not until 2 months prior to the effective date of the 24 month extension of obligated service that (petitioner) submitted his application" and that he had never refused training or schooling. The investigating officer then itemized several additional facts which he believed supported denying the discharge: (1) that on April 20, 1979, petitioner requested assignment to the Mediterranean "to get another view of the Navy and to gain more experience"; (2) that petitioner accepted promotion to Petty Officer Second Class, "thus assuming greater military responsibility"; (3) that petitioner had held the job as a security guard discussed above, in which he had carried a gun; and, (4) that petitioner accepted assignment to the U.S. Atlantic Fleet "SOAP Team" in Norfolk, Virginia. Complaint, Ex. C, at 2. From these facts, the investigating officer concluded that there was "much doubt that (petitioner's) application is "not merely an avoidance of military service." Id. The officer acknowledged that "(petitioner's) demeanor indicated that he is a very religious individual"; nevertheless, "the lack of formal religious training and knowledge of Brethren in Christ doctrine has made it difficult for (petitioner) to convincingly support his application for Conscientious Objector Status." Id. The officer then recommended that the Navy deny petitioner's application for discharge, stating: "The evidence presented during this investigation is too inconsistent to determine if (petitioner's) asserted beliefs are honestly and genuinely held. (Petitioner) has not proven ... that his thinking and living in its totality both past and present are sincere." Id.

 Petitioner's commanding officer reached the same result for the following reasons: "A thorough review of the hearing officers (sic ) report and enclosures thereto, (petitioner's) letter of rebuttal, and numerous conversations with (petitioner) confirm that there are inconsistencies in his pursuit of Conscientious Objector Status and a thorough understanding of all doctrinal statements of his church are misunderstood or misinterpreted." Complaint, Ex. G.

 Upon consideration of all of the facts stated above, the Navy denied the discharge. The letter notifying petitioner of the Navy's decision gave four reasons for the denial:

 (1) The personnel "in the best position to objectively interview" petitioner thereafter mentioning only the commanding officer and the investigating officer did not "believe ...

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