Gene Cubbison, Usn, Plaintiff-appellant, v. Hon. Melvin Laird, Secretary of Defense, et al., Defendants-appellees, 464 F.2d 1393 (9th Cir. 1972)

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U.S. Court of Appeals for the Ninth Circuit - 464 F.2d 1393 (9th Cir. 1972)

Ninth Circuit.

Sept. 11, 1972.

On appeal from the United States District Court for the Southern District of California; Gordon Thompson, Jr., Judge.

Michael Pancer (argued), Alex Landon, of Pancer & Stephens, La Jolla, Cal., Milton J. Silverman, of Silverman, Gusky & Barry, San Diego, Cal., for plaintiff-appellant.

John Neece, Asst. U. S. Atty. (argued), Frederick B. Holoboff, Robert H. Filsinger, Asst. U. S. Attys., Harry D. Steward, U. S. Atty., San Diego, Cal., for defendants-appellees.

Before MERRILL and ELY, Circuit Judges, and LUCAS,*  District Judge.


In our judgment this case on its facts is not distinguishable from Tressan v. Laird, 454 F.2d 761 (9th Cir. 1972); Miller v. Chafee, 462 F.2d 335 (9th Cir. 1972); and Strait v. Laird, 464 F.2d 205 (9th Cir. 1972), and, as in these cases, the record here provides no basis in fact for the determination of the Chief of Naval Personnel that appellant was not sincere in his avowed beliefs.

We conclude that appellant is entitled to his discharge and to the writ in aid thereof.



Honorable Malcolm M. Lucas, United States District Judge for the Central District of California, sitting by designation