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May 7, 1992

MICHAEL P.W. STONE, etc., et al.


The opinion of the court was delivered by: POLLAK

* This bench opinion, issued on February 18, 1992, has been edited by the writer very slightly to improve intelligibility.


 At the time of filing of the application for habeas corpus, it was contemplated that Dr. Reiser would be required to report at a date earlier than this; however, to permit a careful examination of the case, unpressured by deadlines of time, the Army has cooperated in postponing Dr. Reiser's time of reporting. For that cooperation, I am most grateful.

 The essential chronological background of this case is that Dr. Reiser, as an undergraduate in college, was an ROTC student. Graduating from Washington and Jefferson in 1986, she had conferred upon her, and accepted, the Reserve commission as a second lieutenant that was contemplated as sequential on her completion of college and the attendant ROTC program. The terms of her military obligation were that she owed the Army four years of service.

 The petitioner sought a defendant to attend medical school, and that deferment was granted, and the petitioner has attended Temple University Medical School, completing her work there in 1990. It is my understanding that by undertaking to study medicine, the applicant, while continuing to have an obligation of active duty to the military, reduced that obligation from four years to three years.

 As graduation from medical school approached, in January of 1990, the applicant sought and received a deferment, a further deferment of her active duty obligation, so that she might initiate an internship. The deferment granted was for only one year, a shorter time than the applicant had sought. And, indeed, the applicant was advised that she could count on being called to active duty somewhere after July of 1991. Dr. Reiser went forward with the internship and in the course of the internship made arrangements to initiate, at the close of the internship year, a three-year fellowship in anesthesiology, her chosen specialty. She is in that status at this time.

 In August of 1990, Dr. Reiser advised the Army that she intended to seek classification as a conscientious objector and resultant discharge. Pursuant to AR 600-43, a formal application to that effect was made in November of 1990. In September 1991, the Department of the Army Conscientious Objector Review Board denied Dr. Reiser's application, notwithstanding that the chaplain who had been assigned to interview Dr. Reiser, Colonel Ronald D. Miller, and the investigating officer who had also been assigned to interview Dr. Reiser, Lieutenant Colonel Charles Nester, both concluded that Dr. Reiser's application for classification as a conscientious objector was sincere. Colonel Nester entered a decision as called for by the governing regulations that recommended, "The First Lieutenant Linda D. Reiser, 204-60-1124, be awarded classification as a conscientious objector (1-0), who by reason of conscientious objection sincerely objects to participation of any kind of war in any form."

 The decision, adverse to Dr. Reiser, of the Conscientious Objector Review Board, Department of the Army, which bears the acronym DACORB, is a decision which is subject to judicial review, but to very limited judicial review indeed. The review is on the record made before DACORB, and it is essentially confined to the question whether the decision of the Board is supportable in fact, in light of the factual record made before the Board.

 To say supportable in fact, of course, implies the application to a factual record of certain legal principles. In the case of establishing status as a conscientious objector, the governing legal principles are relatively clear.

 In Shaffer v. Schlesinger, 531 F.2d 124, 127-128 (3d Cir. 1976), the Third Circuit said:

 * * *

To qualify for a discharge from the armed forces as a conscientious objector, an applicant must establish that he is opposed to participation to war in any form; that his opposition to war is rooted in "religious training and beliefs" as defined in Welsh v. United States, 398 U.S. 333, 26 L. Ed. 2d 308, 90 S. Ct. 1792 (1970) and in United States v. Seeger, 380 U.S. 163, 13 L. Ed. 2d 733, 85 S. Ct. 850 (1965); that his beliefs are sincerely held; and that his beliefs did not become fixed until after entry into service."

 The standard of belief referred to by the Court in Shaffer, as explicated in Welsh and Seeger, incorporates what the Supreme Court said in Welsh, discussing its own previous holding in Seeger :

The test might be stated in these words: A sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption comes within the statutory definition. 380 U.S. 163, 176.
The Court made it clear that these sincere and meaningful beliefs that prompt the registrant's objection to all wars need not be confined in either source or content to traditional or parochial concepts of religion. It held that § 6(j) "does not distinguish between externally and internally derived beliefs," id., at 186, and also held that "intensely personal" convictions which some might find "incomprehensible" or "incorrect" come within the meaning of "religious belief" in the Act. Id., at 184-185. What is necessary under Seeger for a registrant's conscientious objector to all war to be "religious" within the meaning of § 6(j) is that this opposition to war stem from the registrant's moral, ethical, or religious beliefs about what is right and wrong, and that these beliefs be held with the strength of traditional religious convictions.

 That language of Justice Black, which was construing the Selective Service Act, has been taken into the standard which, by regulation, the Department of Defense and its constituent service agencies have adopted to test claims, such as that of Dr. Reiser, for release from military service on grounds of conscientious objection.

 The decision of DACORB to deny Dr. Reiser's application for conscientious objector status does not appear to rest in any part on doubt that the views expressed by Dr. Reiser constitute views which are of a moral and ethical weight, and which are, for the purposes of this inquiry, as strong and consequential as religious views of a conventional sort. I make that point, because on argument this morning some attention was given to the question whether, in the view of the chaplain who interviewed Dr. Reiser, he felt her views to be philosophical rather than moral or ethical. The issue as a factual matter evaporated, given that other portions of the chaplain's interview report spoke of Dr. Reiser's views as being moral as well as philosophical; a moral and philosophical opposition to violence. Were the issue of consequence for current purposes, it is my clear view that the governing regulation does not proscribe a tenet because it may be ...

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