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August 26, 1968

Petition of Aaron BARR For a Writ of Habeas Corpus
Robert W. WEISE, Adjutant General, Department of the Army, U.S. Army Administration Center, St. Louis, Missouri; Stanley R. Resor, Secretary of the Army, Pentagon, Washington, D.C.; Macon A. Hipp, Colonel, Commanding Officer, Fort McClellen, Anniston, Alabama

Tenney, District Judge.

The opinion of the court was delivered by: TENNEY

MEMORANDUM (August 26, 1968)

TENNEY, District Judge.

 Petitioner, pursuant to 28 U.S.C. § 2241, seeks a writ of habeas corpus to restrain his alleged unlawful detention by the United States Army, and to obtain judicial review of the denial by the Department of the Army (hereinafter referred to as "the Army") of his application for discharge based on his status as a full-time student of the ministry in the Church of Scientology.

 The facts indicate that in May, 1965, petitioner enlisted in the Army National Guard. Upon completion of six months' active duty, he was assigned to the Army Reserve. In the fall of 1967, petitioner became a member of the Founding Church of Scientology, located in the City of New York, and in November of that year enrolled as a full-time student of the ministry in the Academy of Scientology, the Church's affiliated divinity school. On November 29, 1967, petitioner, pursuant to Department of the Army Circular No. 135-10, paragraph 17(b)(2), *fn1" filed an application for discharge, attached to which was a supporting statement from the Reverend H. Thomas, President of the New York Church of Scientology, attesting to the fact that petitioner was a full-time student pursuing satisfactorily a course of study which would qualify him as a regular or duly ordained minister of religion. In addition, Reverend Thomas stated that the Church of Scientology of New York is a duly recognized religious corporation pursuant to the Religious Corporations Law of New York. *fn2"

 On February 13, 1968, the Army denied petitioner's application. Subsequently, petitioner again requested a discharge, alleging that he was a full-time divinity student. Attached to this second application was a letter from the Reverend Ronald F. Shafran, Acting Chaplain and Director of Ministerial Training, stating that petitioner was a full-time divinity student whose steady progress and "good ethical record" would make him eligible for ordination as a minister of religion of Scientology upon completion of his studies.

 In response to this application, the Army informed petitioner that while the regulations provide for the discharge of individuals pursuing satisfactorily a full-time course of instruction leading to their ordination, it was the opinion of the Army that petitioner's application did not satisfy the requirements of this provision in that "the Scientology Center is not listed in the Educational Directory published by the Department of Health, Education and Welfare, or currently recognized by that department * * *."

 Thereafter, petitioner, pursuant to 10 U.S.C. § 673(a), was ordered to report for active duty commencing June 26, 1968. This reporting date was postponed pending the consideration of petitioner's third application which, on July 24, 1968, was similarly denied. By order to show cause, dated July 26, 1968, petitioner then commenced the within proceedings.

 Although petitioner herein is not presently under physical confinement, he, being subject to the orders and supervision of the Army, is "in custody" within the meaning of 28 U.S.C. § 2241. Hammond v. Lenfest, 398 F.2d 705 (2d Cir., June 10, 1968).

 The applicable scope of review in the instant case is limited to the determination of whether there is any basis in fact for the Army's denial of petitioner's application. United States v. Seeger, 380 U.S. 163, 185, 85 S. Ct. 850, 13 L. Ed. 2d 733 (1965); Hammond v. Lenfest, supra; *fn3" United States v. Corliss, 280 F.2d 808, 810-811 (2d Cir.), cert. denied, 364 U.S. 884, 81 S. Ct. 167, 5 L. Ed. 2d 105 (1960). *fn4"

 Department of the Army Circular No. 135-10 requires that an application for discharge from theological or divinity students be properly substantiated by the appropriate authority of the institution. There is no requirement either in the regulations or in any statute that the institution concerned be "approved", "recognized", or "listed". Respondent argues that while the requirement of attendance at a "recognized" theological or divinity school with regard to deferments and exemptions from the military service *fn5" does not apply to those already in the Armed Services, nevertheless, the Secretary of the Army may, in the exercise of the power granted him under 10 U.S.C. § 3811(b), follow a similar policy toward discharges. The fallacy of the respondent's argument is apparent. The Court of Appeals in Hammond v. Lenfest, supra, clearly stated that "a validly promulgated regulation binds the government as much as the individuals subject to the regulation." Since neither its own regulations nor the Universal Military Training and Service Act requires that the theological or divinity school in question be "recognized", there was no basis in fact for the Army's denial of petitioner's application.

 Even assuming, arguendo, that the requirement that the institution be "recognized" were applicable in this instance, using the Department of Health, Education and Welfare's "Education Directory" *fn6" as the sole criteria for making the discharge determination would have been a totally arbitrary application of that standard. The "Education Directory" is a publication which lists those institutions of higher education in the United States which are legally authorized to offer and are offering at least a two-year program of college-level studies in residence, have submitted the information required for listing, and have met other specified criteria. *fn7" By denying petitioner's application solely on the basis of the exclusion of the Academy of Scientology from the "approved list", an exclusion that may have resulted from the school's failure to submit the required information, rather than from academic deficiency, the Army capriciously neglected to consider either the standards set by the Academy of Scientology or the established character of the Church of Scientology of New York. See United States ex rel. Rubin v. Magruder, 55 F. Supp. 947, 955 (D.R.I.1944).

 As noted herein, the Church of Scientology of New York is a duly recognized religious corporation under the laws of the State of New York. It has been in existence since November 15, 1955. The membership of the Church of Scientology throughout the United States has grown to between 75,000 and 100,000 parishioners. It is estimated that there are approximately 500,000 members in the various Churches of Scientology throughout the world. The duties and functions of its ministers are similar to those of the clergy of other religious denominations. Their ministers hold services every Sunday, officiate at funerals, christenings and weddings, counsel their parishioners, and conduct confessionals. The Church has three ministers duly licensed by the State of New York as well as other ministers licensed by other states. There are some 50 full-time students in the Academy of Scientology who devote approximately 35 to 40 hours per week to their training. Their course of study includes instruction in the basic tenets of their Church and its system of ethics, and on the methods of counseling parishioners as to their personal, spiritual and ethical affairs. In order to qualify as a minister, students must pass oral and written examinations.

 Although respondent questions the motives and good faith behind petitioner's enrollment as a full-time divinity student, that issue is irrelevent to the instant petition in that the Army's determination was based solely on the fact that the Academy of Scientology had not been listed in the "Educational Directory" published by the Department of Health, Education and Welfare nor then recognized by that Department.

 Inasmuch as petitioner complied in all respects with the applicable Army regulations, and since the Army's determination was arbitrarily reached, this Court directs that petitioner's application for a writ of habeas corpus be granted and ...

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