Lieutenant John A. Strait v. Melvin R. Laird, Secretary of Defense

464 F.2d 205 Lieutenant John A. STRAIT, Petitioner-Appellant, v. Melvin R. LAIRD, Secretary of Defense, et al., Respondents-Appellees. No. 26289. United States Court of Appeals, Ninth Circuit. July 13, 1972. John T. Hansen (argued), San Francisco, Cal., Richard Silver, of Heisler & Stewart, Carmel, Cal., for petitioner-appellant. Richard F. Locke, Asst. U. S. Atty. (argued), James L. Browning, Jr., U. S. Atty., San Francisco, Cal., for respondents-appellees. Before MERRILL and KOELSCH, Circuit Judges, and JAMESON * District Judge. MERRILL, Circuit Judge: 1 By these proceedings in habeas corpus appellant seeks judicial review of an administrative decision of the Department of the Army denying his request for discharge as a conscientious objector. This appeal is taken from judgment of the District Court for the Northern District of California denying, on the merits, the relief sought. A cross-appeal has been taken by appellees from that portion of the District Court's judgment holding that it had jurisdiction in habeas corpus. 2 On June 4, 1971, this court, on rehearing, withdrew its earlier opinion in which we had held that appellant was entitled to discharge. We held on…

(concurring) :

I agree with Judge Merrill that there is no basis in fact for rejecting appellant’s claim as a conscientious objector on the ground of insincerity. It is clear from the record that appellant was a sincere conscientious objector when he applied for discharge on January 20, 1970 and for at least two years prior thereto. This conclusion, however, should not be construed as justifying or condoning appellant’s conduct in accepting the benefits of his reserve commission without disclosing his conscientious objector beliefs until he was called for active duty.

The Board could properly find that the imminence of active duty was the immediate cause of appellant’s application for discharge. 1 This court, as appellee argues, has held in a number of cases that the Board may consider “suddenness of conversion”, particularly after receipt of an order to report for active duty, in determining whether conscientious objector beliefs are sincerely held. 2 These cases, however, were decided prior to Welsh v. United States, 398 U.S. 333 , 90 S.Ct. 1792 , 26 L.Ed.2d 308 (1970) and are distinguishable with respect to the religious test to be applied. In most of them there was…

By these proceedings in habeas corpus appellant seeks judicial review of an administrative decision of the Department of the Army denying his request for discharge as a conscientious objector. This appeal is taken from judgment of the District Court for the Northern District of California denying, on the merits, the relief sought. A cross-appeal has been taken by appellees from that portion of the District Court’s judgment holding that it had jurisdiction in habeas corpus.

On June 4, 1971, this court, on rehearing, withdrew its earlier opinion in *206 which we had held that appellant was entitled to discharge. We held on rehearing that under Schlanger v. Sea-mans, 401 U.S. 487 , 91 S.Ct. 995 , 28 L. Ed.2d 251 (1971), the District Court for the Northern District of California was without habeas corpus jurisdiction. Strait v. Laird, 445 F.2d 843 (9th Cir. 1971). On May 22, 1972, the Supreme Court reversed us, holding that jurisdiction existed and remanded the ease to us for decision on the merits of appellant’s claim. Strait v. Laird, 406 U.S. 341 , 92 S.Ct. 1693 , 32 L.Ed.2d 141 (May 22, 1972). Accordingly we revert to our original opinion on the merits.

Appellant is an officer…