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03/31/71 United States of America v. Stanley Resor

March 31, 1971




Tamm, Leventhal and Wilkey, Circuit Judges.


UNITED STATES of America ex rel. Isaac BARR by Missouri



Appellee Isaac Barr obtained a writ of habeas corpus from the United States District Court directing his release from Army service on the ground of conscientious objection. *fn1 The Government seeks reversal, urging error in the District Court's determination that the Army's denial of appellee's request for discharge was without basis in fact. *fn2 For reasons hereinafter stated, we affirm the granting of the writ. I. Factual Background

The factual history of this case is stated in appropriate detail in the opinion of the District Court. *fn3 Accordingly, we limit ourselves here to a recitation of those facts upon which the resolution of this appeal depends.

Appellee Barr sought conscientious objector status from his local Selective Service Board prior to being ordered to report for induction into the Army. His Local Board denied his claim because his SSS Form 150 (Special Form for Conscientious Objector) did not contain "enough information . . . to determine his status." On appeal of this denial to the State Appeal Board, Barr was interviewed, as was then required, by an officer of the Department of Justice who concluded that his professed conscientious objector beliefs were not sincerely held. The officer found that Barr's religious affiliation was "most recent and incomplete" and that Barr "really was objecting to the United States policies in Vietnam more than he was to fighting, as such." He concluded that "the registrant was not sincere in his religious beliefs." Accordingly, the State Appeal Board denied the appeal and directed that Barr's 1-A classification be retained. Barr was then ordered to report for induction, and on 5 September 1968 was inducted into the Army. *fn4

After completing basic and advanced infantry training, Barr, while awaiting shipment to Viet Nam, attempted to submit a claim for discharge from the Army on grounds of conscientious objection. *fn5 The claim was not then processed, *fn6 but, after Barr's arrival in Viet Nam, was submitted to his commanding officer and processed in accordance with AR 635-20. *fn7 In this application, Barr admitted that he had made a claim of conscientious objection to his Selective Service Board which had been denied prior to his induction. However, he submitted that:

My basic training in combat has strengthened my conviction that I cannot participate in war in any form. The surrender of decision to the Army in the area of conscience I can no longer support.

In addition, in explaining his religious training and belief he stated that under his religious beliefs he could not "as a member of the military organization continue service in an organization that has as its responsibilities the killing of others."

Pursuant to AR 635-20 Barr was interviewed by a chaplain, a psychiatrist and "an officer in the grade of O-3, or higher, . . . knowledgeable in policies and procedures relating to conscientious objector matters," all of whom found him to be sincere in claiming conscientious objection based upon religious training and belief. Although not required by the regulation, he was further interviewed by a second chaplain who also found his religious views to be sincerely held. The application was then forwarded through channels to the Department of the Army, approval thereof being recommended by Barr's commanding officer and all intervening commands. The Department of the Army Class I-O Conscientious Objector Review Board, however, denied discharge on the ground that Barr's application was "based solely on conscientious objection claimed and denied by the Selective Service System prior to induction." II. Whether There Was A Basis in Fact for the Denial of Discharge

Paragraph 3 of AR 635-20 provides, inter alia :

3. Policy. a. Consideration will be given to requests for separation based on bona fide conscientious objection to participation in war in any form, when such objection develops subsequent to entry into the active military service.

b. . . . Claims based upon conscientious objection growing out of experiences prior to entering military service, but which did not become fixed until entry into the service, will be considered. Requests for discharge ...

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