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September 3, 1970

James Harold GORDON, Plaintiff,
Stanley R. RESOR, Individually and as Secretary of the Army, Commanding Officer, Individually and as Commanding Officer of the United States Army Reserve Components Personnel Center, Fort Benjamin Harrison, Indiana, and Commanding Officer, Individually and as Commanding Officer of Walter Reed Army Medical Center, Washington, D.C., Defendants

Croake, District Judge.

The opinion of the court was delivered by: CROAKE


CROAKE, District Judge.

 Plaintiff is a medical doctor specializing in the field of anaerobic bacteria. Upon graduating from Harvard Medical School in June 1969, plaintiff applied for a commission in the United States Army Reserve, and in October 1966 he was commissioned a First Lieutenant pursuant to the "Berry Program," and thereafter, for the succeeding three and one-half years, renewed his contract with the Army on an annual basis. Under the Berry Program, a doctor is granted a deferment so he may complete a residency and subsequently enter the Service as a specialist.

 As so often happens, alas, with such things, there came a time when plaintiff's residency was over and his deferment at an end. By order dated April 24, 1970, he was instructed to report for active duty in the Army Reserves to the Walter Reed Research Center, Washington, D.C., on July 3, 1970. However, on June 22, 1970, eleven days before his said activation date, plaintiff filed a conscientious objector application form, DA Form 2496, requesting discharge from the Army. He directed this application to his then Commanding Officer at the United States Army Reserve Components Personnel Center, Fort Benjamin Harrison, Indiana. Plaintiff indicated in said application and in his papers herein that although his beliefs assertedly qualifying him for conscientious objector status developed around December 1969 nonetheless he did not believe that he qualified as a conscientious objector until he read the decision of the United States Supreme Court in Welsh v. United States, 398 U.S. 333, 90 S. Ct. 1792, 26 L. Ed. 2d 308 (June 15, 1970), and accordingly did not make his application until after reading that case. Mr. Gordon indicated in his conscientious objector application form that he is willing to perform work under the Selective Service civilian work program for conscientious objectors and that he consents to the issuance of an order for such work by his local Selective Service Board.

 The Army, in a letter dated June 26, 1970, made the following response to plaintiff's application of June 22, 1970, for discharge as a conscientious objector:

"2. Your application for discharge based on conscientious objection has been forwarded to the Commanding Officer, Walter Reed Army Institute of Research, Washington, D.C. That command will process your application in accordance with AR 635-20 upon your arrival.
"3. Department of Army Policy provides that applications received after the normal suspense time required to process them will be forwarded for processing under the provisions of AR 635-20 upon arrival at your initial duty station. No provisions exist whereby active duty orders may be revoked due to late submission of a request for classification as a conscientious objector."

 Thus, the Army's position was that due to the lateness of plaintiff's application for conscientious objector status, it would not consider him under the procedures set up by the army regulations for reservists not on active duty, see AR 135-25, but rather would require that he submit to activation and have his application considered under the procedures set up by the army regulations for activated army personnel, see AR 635-20.* The Army based this decision upon an asserted Department of the Army Policy and on its interpretation of the provisions of AR 135-25. Plaintiff's request for postponement of his activation date pending a decision on his application was denied.

 Plaintiff initiated the instant action on June 30, 1970, seeking to have defendants enjoined from ordering him to active duty and ordering them to process his application for discharge. Presented to the undersigned herein is plaintiff's motion, brought on by order to show cause dated July 2, 1970, for a preliminary injunction, pursuant to Rule 65 of the Federal Rules of Civil Procedure, cancelling plaintiff's order to report to Walter Reed Medical Research Center on July 3, 1970, and restraining the defendants from ordering plaintiff to active duty pending the determination of this action. The order to show cause was signed by Judge Lasker of this Court and plaintiff was granted a stay of the order to active duty pending the hearing of this motion. The motion was heard before the undersigned and decision was reserved. Plaintiff's stay was extended pending the determination of the motion.

 This case presents the question on the merits of whether plaintiff under the facts outlined above and as they develop at the trial has a right under the relevant Department of Defense Directives and army regulations to a hearing on his conscientious objector hearing before his entry onto active duty under the procedures set up thereby for reservists not on active duty; or whether, on the other hand, he must first report to his said active duty post, become activated, and then have his conscientious objector claim considered under the procedures provided by the relevant Department of Defense Directives and the army regulations for those on active duty. Presented to the undersigned herein, of course, is not the case on the merits, but rather plaintiff's motion for a preliminary injunction. Thus we must decide whether plaintiff has met his burden of establishing that he has a substantial likelihood of success on the merits of his action and that he will suffer irreparable injury if the preliminary injunction is not granted, and, further, that the overall balance of the equities is with him.

 We are most reluctant to interfere in the workings of the military, especially in matters of internal administration of military affairs. However, it is clear that the law imposes upon us the duty to determine, when the matter is properly raised before us, whether the army has followed its own regulations, as, of course, it must. Smith v. Resor, 406 F.2d 141 (2d Cir. 1969); United States ex rel. Mankiewicz v. Ray, 399 F.2d 900 (2d Cir. 1968); see also Yellin v. United States, 374 U.S. 109, 83 S. Ct. 1828, 10 L. Ed. 2d 778 (1963); Service v. Dulles, 354 U.S. 363, 77 S. Ct. 1152, 1 L. Ed. 2d 1403 (1957); United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S. Ct. 499, 98 L. Ed. 681 (1954). We are also aware that the Congressional policy of honoring conscientious objection of prospective draftees is a long-standing one. See United States v. Seeger, 380 U.S. 163, 85 S. Ct. 850, 13 L. Ed. 2d 733 (1965). It finds its counterpart in the more recent policy of the armed forces that conscientious objectors should be discharged from service or assigned noncombatant duty. The armed forces naturally focus their attention on conscientious objection crystallizing after induction, leaving cases of earlier crystallization to the jurisdiction of the Selective Service System. Ehlert v. United States, 422 F.2d 332 (9th Cir. 1970); Hammond v. Lenfest, 398 F.2d 705 (2d Cir. 1968); United States v. Gearey, 368 F.2d 144, 149-150 (2d Cir. 1966), cert. denied, 389 U.S. 959, 88 S. Ct. 335, 19 L. Ed. 2d 368 (1967); DOD 1300.6, supra.

 As to the question of whether he would sustain irreparable injury if he were not granted a preliminary injunction, plaintiff argues that it would violate his conscience to be forced to submit to active duty and participate in the active army and that this will be the result unless his order to report is further stayed and he is granted a hearing on his application. Mr. Gordon states in his application:

"As a physician, I have always been assured of a non-combatant role in the Armed Forces. Furthermore, my assignment to Walter Reed Army Institute of Research guarantees that I should not have to treat Army personnel with the aim of making them better able to participate in combat. In spite of these considerations, I find myself unable to enter on active duty and remain true to my religious beliefs. By entering on active duty I am giving my support to an organization whose function is in opposition to my fundamental religious beliefs. By giving this consent to killing as a means of implementing policy, I should be untrue to myself and guilty of avoiding the responsibility that derives from my religious conviction. This I cannot do." Plaintiff's DA Form 2496 at 14.

 The determination of the likelihood of irreparable harm is often a most difficult one to make. In some cases denial of a preliminary injunction is tantamount to the denial of the substantive relief sought because by the time of the trial, regardless of the result thereof, the damage will have been done. This is such a case. After considering the facts as hereinabove outlined and the policy of the military, as expressed in DOD 1300.6 and AR 135-25, supra, to respect the sincere beliefs of non-activated reservist ...

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