James J. Howe, Jr., Appellee-petitioner, v. Melvin R. Laird, Secretary of Defense, et al., Appellants-respondents, 456 F.2d 233 (5th Cir. 1972)

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U.S. Court of Appeals for the Fifth Circuit - 456 F.2d 233 (5th Cir. 1972) March 9, 1972

William S. Sessions, U. S. Atty., Charles B. Tennison, San Antonio, Tex., for appellants-respondents.

Leonard J. Schwartz, Patrick D. Burke, San Antonio, Tex., Rigely, Schwartz, Fagan & Burke, Inc., San Antonio, Tex., for appellee-petitioner.

Before BELL, DYER and CLARK, Circuit Judges.


The district court concluded that there was no basis in fact for the denial by the Army of conscientious objector status to appellee. We agree. Helwick v. Laird, 5 Cir., 1971, 438 F.2d 959; Kessler v. United States, 5 Cir., 1969, 406 F.2d 151.

The finding of the district court that appellee's statement in support of his application for discharge, if sincere, made out a prima facie case, is not disputed. The Army was of the view that appellee lacked the depth of conviction required to qualify for discharge as a conscientious objector. This result rested on the disbelief of appellee by the Army officials who interviewed him. We are unable to find any ". . . affirmative evidence to support the rejection . . ." nor is there anything in the record which ". . substantially blurs the picture painted by [appellee] and thus casts doubt on his sincerity . . ." Kessler v. United States, supra, 406 F.2d at 156.



Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casulaty Co. of New York et al., 5 Cir. 1970, 431 F.2d 409