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September 3, 1970

UNITED STATES ex rel. Cary E. DONHAM, Petitioner,
Stanley R. RESOR, Secretary of the Army, et al., Respondents

Frankel, District Judge.

The opinion of the court was delivered by: FRANKEL

FRANKEL, District Judge.

Petitioner, at the end of his third year at West Point, sought separation from the Corps of Cadets on the ground that he had matured conscientious objections to military service. The Army has denied his application. He sues here for a writ of habeas corpus, claiming that the adverse decision of the military authorities lacked the requisite basis in fact. *fn1"

 The case appears to be the first in which a cadet has claimed the kind of dramatic change in outlook and ambition petitioner asserts. Apart from what this might be thought to symbolize about our world in more general terms, the uniqueness of the problem could have generated some finicky legal questions of both substance and procedure. But all concerned have concurred in adapting existing administrative procedures to petitioner's case, and it has been for the most part undisputed (but see note 2, infra) that substantive doctrines developed mainly in selective service cases are applicable. We proceed to the merits on this basis.


 As his brief observes, petitioner built in three full academic years, a "splendid record at the military academy * * *." He stood in the top fifth of his class. He was a squad leader in his junior year. So far as those in charge of his education and status were informed, he was completing successfully the training for a career as a professional army officer.

 On May 29, 1970, however, he filed his application for discharge as a conscientious objector. In it he stated that his "beliefs concerning war stem from a belief in God and in the New Testament teachings of Christ." Citing the New Testament and other writings, he wrote that he believed himself to have "no right to take the life of any other person * * *." "Yet," he continued, "in the army, one is taught that killing is not only necessary but also acceptable. For example, part of the mission of the infantry is to 'close with and destroy the enemy.'" Quoting from Thoreau, psychiatrist Jerome Frank, and others, he went on to detail his commitment to love and peace and his rejection of war and killing.

 He recounted his steady devotion since early childhood to the activities and doctrines of the Methodist Church. At the same time, he said, "West Point has been a goal of mine for many years" -- for the "prestige," because it "provided a way to serve the country," because, in sum, it "seemed to offer everything worthwhile in an education."

 However, he continued, the reality of West Point was disturbing to him from the outset:

"I was somewhat suprised * * * to learn that I had to undergo training with a bayonet and shout enthusiastically that the spirit of the bayonet was 'To kill, sir!' This was not exactly what I had expected, and it made me somewhat uneasy. However, at the time, actual combat duty was four years away, distant enough to make it seem much less important than the day-to-day struggle of New Cadet Barracks. Also, I decided that I would not be an infantry officer, whose job emphasized the hand-to-hand combat portion of the Army. I believed that I could better serve in a branch not so close to the actual fighting. Finally, the positive aspects to be gained from a West Point education seemed more important that [ sic ] a few words I was required to say. * * * Now I realize that all members of the Army, even those not engaged in actual combat, take part in the killing of others, since to be a member, even in a non-combatant role, is to condone the actions of the entire organization, which I cannot in conscience do."

 Petitioner went on in his application to describe how the doubts "would sometimes return;" how he "pushed [them] to the back of [his] mind;" and how they "did not surface again seriously until the summer between [his] sophomore and junior years." In that summer, almost a year before his filing of the instant application, he "was on the teaching end of the bayonet, training incoming plebes to kill people." Once more he found himself thinking "sombre thoughts," but again he "closed [his] eyes" and went on with his duties as squad leader. He concluded that he would serve in a branch of the army which "did not actually participate in the close combat." By September of that year, he stated, he was "not certain of what [he] believed; [he] only knew that much of Army duty was distasteful to [him]."

 During the fall he continued his readings, his application said. Then, the Vietnam moratorium and "the news of the Mylai incident * * * both had a profound effect on [him]. These, coupled with the news that one of the boys [he] graduated from high school with had been killed in Vietnam, made [him] realize that people really die in wars * * * and [he] began to wonder why." He was now made to "realize coldly" that he was being prepared for war, and that "[after] four years of college, [he] would be able to lead men in combat * * *." He also found himself recoiling from the realization that he was expected to enjoy his career in combat. He says he found himself "frightened" and confused by these ideas. He discussed them with the chaplain. He prayed and thought a great deal. Then, he "concluded that there is no way to reconcile the concept of loving one's neighbor and war." After describing a course of further thought and soul-searching, the application stated, the petitioner concluded that his conscience called upon him "to reject war as a means to any end, and instead to substitute love."

 The remainder of the application, though all of it is relevant, may be more briefly summarized. Petitioner went on to describe the limited degree to which he might believe in the use of force. He amplified his description of the course of his religious thought and beliefs, setting out some poems he had written during the preceding year or so as reflective of the state of his mind. He noted that the application he was now presenting was opposed by his parents, and urged this among other things as a demonstration of the sincerity of his beliefs. As to whether he had ever "given public expression" to the views now stated, he said these views had "been expressed only in private conversations and writings."

 Accompanying the application were letters from petitioner's home-town pastor, a high school teacher and coach, roommates at the Military Academy, instructors at a local college near the Academy, and others. All attested to the petitioner's integrity, honesty and sincerity.

 The Assistant Chaplain of the Academy submitted his views on the application. He stated that he believed Cadet Donham "to be sincere in his ...

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