Guy James Morrison, Petitioner-appellee, v. Lt. General Stanley R. Larsen et al., Respondents-appellants, 446 F.2d 250 (9th Cir. 1971)

Guy James Morrison, serving in the United States Army, filed for discharge as a conscientious objector under the provisions of Army Regulation 635-20.¹  His application was ultimately denied by the Conscientious Objector Review Board [CORB] and by the Adjutant General. Morrison filed a petition for writ of habeas corpus in the district court on the ground that the Army had wrongfully denied him discharge. The district court granted the writ and ordered Morrison's discharge. We reverse and remand.

A. Factual Background.

The earliest manifestations of Morrison's conscientious objector beliefs were during a personal appearance before his selective service board in April of 1968. At that time, Morrison was appearing personally to assert his right to a I-S [student] deferment. At this hearing, he offered the board a written statement of his "political and moral attitudes." The contents of this proferred statement could certainly be considered an expression of conscientious objection to war.²  The board ruled, however, that it would not consider the statement because it was irrelevant to Morrison's I-S deferment request. Morrison retained the statement and made no further attempt to submit the material to the board prior to receiving his induction order.

After receiving his induction notice, Morrison completed and returned a C.O. Form 150 to his local board. After various proceedings within the Selective Service System, Morrison was again ordered to report and submitted to induction into the Army on June 16, 1969.

After six months of basic combat training, advanced infantry training and the Vietnam Training Course, Morrison filed for discharge from the Army as a conscientious objector under AR 635-20. Following numerous intermediate interviews, the CORB denied Morrison's application for discharge on the ground that he had requested and been denied C.O. status by the Selective Service System, and that he had "provided no convincing evidence of a change in his beliefs." The decision of the CORB is ordinarily considered final, but in this instance, at the United States Attorney's request, the Adjutant General conducted a de novo review of all prior proceedings. The Adjutant General determined that "Morrison's professed views were fixed prior to his induction" and, therefore, "cannot be approved under the provisions of AR 635-20."

Morrison's petition for writ of habeas corpus stated that his "beliefs have crystalized [sic] and matured since his induction into the Armed Forces and his application for discharge is thereby substantially different than the application submitted to the Selective Service System." The petition concluded with the allegation that the Army wrongfully denied Morrison's application for C.O. status under AR 635-20. The district court found that Morrison's C.O. beliefs crystallized after he received his induction order, and that his C.O. request had not been considered on its merits by the Selective Service System [i.e. there had been no reopening of his classification].³  The court held that "AR 635-20 and the crystallization requirements therein should only be applied to deny a forum to persons whose claims have been heard and denied on the merits by the Selective Service System or to those who, knowing of their claims, can be said to have waived them." The court then concluded that Morrison "be discharged from the custody of the United States Army * * *" and granted the writ of habeas corpus.

B. The Issues.

We note at the outset that our examination here is limited to alleged errors in the Army proceedings. Morrison's habeas corpus does not complain of errors by the Selective Service System, and does not name the System or any of its personnel as defendants to this action.

Our review of military determinations is said to be "the narrowest known to the law." Negre v. Larsen, (9 Cir. 1969) 418 F.2d 908, affirmed sub nom. Gillette v. United States, 401 U.S. 437, 91 S. Ct. 828, 28 L. Ed. 2d 168. We are limited to a determination of whether there is a basis in fact in the record for the military determination. Estep v. United States, 327 U.S. 114, 66 S. Ct. 423, 90 L. Ed. 567 (1945). Speer v. Hedrick, (9 Cir. 1969) 419 F.2d 804.

1. "Late Crystallization" and AR 635-20.

The district court found that CORB erred by denying Morrison's C.O. claim on the ground that it previously had been presented to and denied on its merits by the Selective Service System. The court determined that Morrison's claim had not been considered on its merits by the Selective Service System because of the limitations imposed by 32 C.F.R. § 1625.2 on reopening classifications after the issuance of an induction order. Thus, the court found that the bases and beliefs for conscientious objection expressed in Morrison's Form 150 were of the "late crystallization" genre.

The district court also held that the Adjutant General's denial of Morrison's claim on review of CORB's determination was improper. The Adjutant General denied Morrison's claim because it was founded upon bases and beliefs that became fixed prior to induction. The court ruled that, because a "late crystallization" claim was involved, the Adjutant General's interpretation of AR 635-20 resulted in the denial of any forum to consider the beliefs asserted in Morrison's Form 150 on their merits.⁴ 

Upon examination of the record, we cannot sustain the district court's finding that Morrison's Form 150 claim was one of "late crystallization." The evidence clearly indicates that the bases and beliefs expressed in Morrison's Form 150 had crystallized prior to the issuance of his induction order.⁵  Therefore, this case represents a "late filing" of C. O. beliefs and not a "late crystallization."

In discussing "late filing", this court has stated that: "If the registrant has formed conscientious objection beliefs before the order of induction, and has ample time to notify the Board to this effect and has failed to do so, he is not entitled to have his classification reopened." United States v. Kanner, (9 Cir. 1969) 416 F.2d 522, 525. Because Morrison's claim did not involve a "late crystallization" of beliefs, the Army could properly find that Morrison waived his right to assert a C.O. claim based solely upon those bases and beliefs (expressed in his Form 150 and the material submitted in April 1968) that existed and could have been asserted in the Selective Service System prior to the issuance of his induction order.

Morrison has not been denied a forum for the consideration of his claim. He could have tested the proceedings before the Selective Service Board either by refusing induction and raising the question in a criminal appeal or by submitting pro forma to induction and immediately seeking relief by habeas corpus. Instead he voluntarily submitted to induction and six months training, and then, when ordered to combat duty, raised his claim before the military by habeas corpus, asserting error in the military's determination.

2. "New" Claims and AR 635-20.

Morrison's petition declared that his C.O. beliefs "crystalized [sic] and matured since his induction into the Armed Forces and his application for discharge is thereby substantially different than the application submitted to the Selective Service System." It is, of course, possible that the bases and beliefs supporting a C.O. claim will change significantly over a period of time as the result of reading, dialogue with others, continued introspection, and the influence of life's experiences. For example, a C.O. claim that was correctly diagnosed as insincere during selective service proceedings may subsequently become sincere as the result of traumatizing experiences in the military. Also, a registrant may have thoughts and views that have not crystallized. But once sincerely held views have crystallized, he is a conscientious objector. Further experience may strengthen or weaken these beliefs. There should be no half-and-half standard. The Selective Service Boards, the courts, and the miliary in various situations, have the obligation to determine whether at a certain time, views and beliefs of a C.O. nature have crystallized or become fixed.

Recognizing this evolutionary characteristic of C.O. beliefs, AR 635-20 provides that the Army will consider "claims based on conscientious objection growing out of experiences prior to entering military service, but which did not become fixed until entry into the service * * *" [Emphasis added]. The regulation also provides that it will not consider those claims that are based solely on beliefs that existed prior to induction. In light of Ehlert v. United States, (1971) 402 U.S. 99, 91 S. Ct. 1319, 28 L. Ed. 2d 625, we assume that this regulation is presently being interpreted to provide consideration for claims that did not become fixed until after the issuance of an induction order.⁶  Thus, it is only those C.O. claims that are based solely upon pre-induction order beliefs that will not be considered by the army.

Morrison's application for discharge contained assertions that his beliefs and the bases for his beliefs changed after his induction into the Army and are not the same as those presented to the Selective Service System. In conclusion he stated:

"Finally, how have my views changed since coming into the army? I would say that the change has been both quantitative, in the sense that my commitment to the sanctity of life has deepened, and quisitative, in the sense that I have done a good deal of research and reflection on the theory and practice of non-violence as a means of resolving conflict, since for one who feels as I do, non-violent methods are the only acceptable ones." [Appendix to appellant's brief, p. 117].

Thus, he asserts that his C.O. claim is not based solely upon pre-induction order beliefs. The CORB found that "Morrison has provided no convincing evidence of a change in his belief." The district court, however, did not reach the issue because of its disposition of the case on other grounds.

The district court erred in finding that Morrison's views expressed to the Army were of the "late crystallization" type and in overruling the decision of CORB that Morrison had "presented no convincing evidence of a change in his beliefs," and the decision of the Adjutant General that "Morrison's professed views were fixed prior to his induction." This was the precise issue presented by Morrison's petition for Habeas Corpus. The Army's finding that Morrison's views had not changed and were fixed prior to induction must not be disturbed if there is a basis in fact to support it. Speer v. Hedrick, supra, Negre v. Larsen, supra, Estep v. United States, supra.

If Morrison was asserting before the Army a "new claim," it must be founded upon bases and beliefs that were previously unmatured or unfixed before the induction order. A mere strengthening of prior C.O. beliefs is not sufficient. If he was a bona fide C.O. prior to his induction, then no "new basis" for that claim after induction has any bearing on the problem.

3. Court's Order of Discharge.

The district court ruled that Morrison's application for discharge stated a prima facie claim to C.O. status, that the Army improperly denied that claim, and, therefore, that Morrison must be discharged from the custody of the Army. The Government asserts that the court should not have summarily ordered a discharge, but should have remanded Morrison and his claim for further proceedings within the Army. We conclude that the Government's position is correct.

Stating a prima facie case of conscientious objection does not automatically entitle a serviceman to discharge. If the Army has erred in interpreting the crystallization requirements of its own regulations, then the matter should be returned to the appropriate military board for further consideration. We view the proper form of relief in such circumstances as that stated by this court in Zemke v. Larsen, (9 Cir. 1970) 434 F.2d 1281, 1283, towit: " [T]he district court [shall] allow the Department of the Army a reasonable time for reconsideration of appellant's application by the Conscientious Objector Review Board and for further action thereon by the Adjutant General; failing which appellant is entitled to his release."

The case is reversed and remanded to the district court for further proceedings not inconsistent with this opinion.