Lumbard, Moore and Smith, Circuit Judges. Lumbard, Circuit Judge (dissenting).
Oliver A. Rosengart appeals from an order of the United States District Court for the Southern District of New York entered on November 23, 1970, denying his application for a writ of habeas corpus in a proceeding under 28 U.S.C. § 2241(c) (1) (3) seeking his discharge from the United States Army Reserves as a conscientious objector. A short stay of Rosengart's obligation to report for active duty was entered by consent at the commencement of this action; thereafter, the district court entered further stays which were continued in effect until its final determination, at which time it dissolved the stay. On December 8, 1970, this court entered a stay pending the outcome of this appeal and ordered an expedited appeal.
The gravamen of this appeal is that there was no factual basis for the Army's determination that Rosengart was not entitled to a discharge and that the multiple remands to the Army below deprived Rosengart of his rights to due process of law, the denial of which it is argued entitles him to his much-sought-after discharge. We affirm.
FACTS AND ADMINISTRATIVE PROCEDURAL HISTORY
In September 1959, while a freshman at the City College of the City of New York (CCNY), Rosengart enrolled in that college's ROTC program. Upon the completion of his five-year program in engineering, he was commissioned as a second lieutenant in the United States Army Reserves in June 1964; his active duty date was postponed to a date beyond the completion of his law studies at New York University, which was in June 1967. Shortly after his law school graduation, Rosengart was informed that he was to report for active duty on April 10, 1968.
Beginning in December 1967, Rosengart began the first in a series of maneuvers to avoid meeting his active duty obligation.*fn1 On a routine Army "Statement of Physical Condition for Promotion," dated December 27, 1967,*fn2 Rosengart stated that he believed himself "psychologically unfit to serve in the U.S. Army." This conclusion was grounded on Rosengart's regular psychotherapy treatment over the previous 21 months, his belief in the necessity of further treatment "for a considerable length of time," and his therapist's statement to him that "she believes that I am unfit for military service and will so state in a letter." Rosengart then requested a psychiatric examination "to determine whether I am fit for military service." On February 23, 1968, Rosengart reported for a medical examination at the New York City Armed Forces Examining Station, where he filled out the standard "Report of Medical History,"*fn3 which contains the following references of interest: (1) in giving a statement of his "present health in his own words," Rosengart stated, "My psychological health is not good. I have been in psychotherapy for almost two years"; (2) in response to a question addressed to any school-related difficulties which he may have had, Rosengart stated that he was "a chronic underachiever in school";*fn4 and (3) in response to a question whether he had ever treated himself for illnesses other than a minor cold, Rosengart stated, "I get an occasional 24 hour stomach virus. [!]" On March 4, 1968, an Army psychiatrist found Rosengart fit for military duty, noting that his history did not reveal "any serious pathology," that he made a "favorable impression," and that "in view of his adequate civilian adjustment he should adjust to military life."*fn5
While his request for a medical discharge was still pending, and only very shortly after he had received a new set of active duty orders dated January 22, 1968 confirming his active duty date of April 10, 1968,*fn6 Rosengart initiated formal application for a personal hardship deferment. The delay in reporting for active duty was sought because of the great financial, mental and physical hardship to his former German refugee parents, especially to Rosengart's mother, who was suffering from an increasingly deteriorating case of multiple sclerosis, which his early reporting presumably would have aggravated. Rosengart's father, it was alleged,*fn7 would be unable to pay the soaring medical expenses because of the loss of his principal source of income as a German reparations lawyer. Consequently, it was argued, Rosengart as the only child would be required to contribute some $4,000 to $5,000 per year to the support of his parents, presumably through his continued employment as a well-paid lawyer in a patent law firm for which he was then temporarily working prior to his active duty reporting date. While this application was pending, Rosengart received a further delay.*fn8 On May 3, 1968, his application for a deferment was denied.*fn9
Undeterred by this rebuff, Rosengart renewed his request for a hardship deferment and submitted additional material in support thereof, including letters from his mother's doctor, the family rabbi*fn10 as well as a letter from Rosengart himself.*fn11 This request also was based on his ability to contribute to the maintenance and support of his failing mother and apparently unemployable father. On June 24, 1968, Rosengart was denied his deferment and ordered to report for active duty on August 6, 1968.*fn12
On July 8, 1968, Rosengart applied for a discharge as a conscientious objector (CO) and submitted his completed application dated August 1, 1968. Pursuant to regulation,*fn13 Rosengart was interviewed by a psychiatrist, chaplain and a hearing officer, Major Mohr, each of whom recommended that Rosengart be discharged from the Army as a bona fide CO. He also was granted a further delay, pending the determination of his most recent application. On or about January 20, 1969, Rosengart was advised by the Army's Chief Reserve Personnel Officer at Fort Benjamin Harrison, Indiana, Col. Hoffman, that his request for a discharge was "disapproved" because "the determination has been made that you do not qualify for a conscientious objector classification."*fn14 Because no reasons were given in the January 20 letter, as required by AR 135-25, the Army agreed to reconsider the application after the procedural irregularity issue was raised by Rosengart.
On or about February 27, 1969, Rosengart was reinterviewed by the same psychiatrist and chaplain and by a new hearing officer, Capt. Koch. In his findings,*fn15 Capt. Koch stated the following:
"2. * * * After his commission in June of 1964, Lt. Rosengart realized his objection to war during his attendance at a series of religiously oriented nonsectarian camps devoted to peaceful ideals. Lt. Rosengart appears to have started a career with [a] public service organization and is presently a staff attorney with Mobilization for Youth Legal Services. Lt. Rosengart stated [that] he is willing to perform in any capacity which the Army may direct.
"3. Recommend Lt. Rosengart be considered to be a bona fide conscientious objector and that he be discharged * * * in order to permit service in the Conscientious Objectors Work Program."
By letter dated April 4, 1969, Col. Hoffman advised Rosengart that his "request for discharge by reason of conscientious objection has been disapproved" on the grounds that his application and supporting documentation "indicates [that] your claim as a conscientious objector is based primarily on a personal code, philosophical views and sociological experience."*fn16
Thereupon, on April 17, 1969, Rosengart commenced this habeas corpus action.
Following argument on the petition, the district court by opinion and order*fn17 remanded Rosengart's case to the Army's Conscientious Objector Review Board (Review Board), directing it to reply to four questions relating to the Review Board's prior determination of Rosengart's CO discharge application.*fn18 The court remanded, although it noted that Rosengart's "201" file "contains evidence which affirmatively blurs the picture painted by petitioner and casts doubt on the sincerity and genuineness of his claim of beliefs which would debar active duty."*fn19 Objection to the district court's procedure was made by way of motion for reargument and was denied.
In due course, the Army replied and indicated that with respect to Question 3, note 18, supra, it believed that Rosengart had to show that he had some religious training since joining the Army in order to qualify for a CO discharge.*fn20 The district court in a supplemental opinion*fn21 found that the Army Regulation does not require postservice entrance religious training, and that the Review Board appeared to have acted contrary to regulation. Rather than dismiss or grant the petition, the district court once again remanded the case to the Army, this time for a de novo hearing and determination on the merits. The Army again came back to court, stating its view that Rosengart was not entitled to a discharge on the ground that his application was based on philosophical views, sociological experiences and a personal moral code.*fn22 The Government moved to dismiss the petition on the ground that such views did not come within the standards for conscientious objection established by the Supreme Court in United States v. Seeger.*fn23 The district court reserved decision pending the Supreme Court's decision in United States v. Sisson,*fn24 a case in which a Massachusetts district court had held that a religious-nonreligious distinction in CO cases violated the First Amendment of the Constitution, a contention urged by Rosengart below. Although Sisson was dismissed on procedural grounds, the Supreme Court decided Welsh v. United States.*fn25 Pursuant to the Government's motion, the district court by order dated July 3, 1970, again remanded the case to the Review Board for redetermination in the light of the newly announced standards in Welsh.*fn26
A newly comprised Review Board considered Rosengart's application for a final time, with the benefit of the determinations of the prior Review Boards, the directions of the district court and all of the findings made by the four interviewing officers. Based upon this data and upon all of the information contained in Rosengart's "201" file, the Review Board unanimously concluded that Rosengart was not entitled to a CO discharge. The Board found that any conscientious objection held by Rosengart was based solely on philosophical views and sociological experiences (a curious finding in the light of Welsh)*fn27 and that Rosengart's "purported conscientious objective [sic] beliefs are not truly held."*fn28 The Government again moved to dismiss the petition. The district court found that there was a "substantial basis in the record" for the Board's denial of Rosengart's application on the ground of insincerity of belief and accordingly dismissed the habeas corpus petition on November 23, 1970.*fn29
At the outset we note that because this case turns on other grounds, we assume without deciding that Rosengart's beliefs are religious within the meaning of § 6(j) of the Selective Service Act of 1967,*fn30 as construed by the Supreme Court in Welsh. Moreover, in deciding this case we do not rely on the various proceedings or maneuvers employed by Rosengart in seeking discharge from his originally voluntarily assumed military active duty obligation previous to his application for a CO discharge. Each application, standing alone, appears substantial and not inconsistent with Rosengart's eleventh hour application. We do rely, however, on the supporting documentation submitted in connection with Rosengart's earlier applications, but only insofar as they provide indicia of inconsistency with his claimed status as a CO, i. e., as they cast a cloud upon the sincerity of his professed deeply held beliefs of conscientious objection.*fn31
The standard by which we must be guided on this appeal is whether there exists within the four corners of the record affirmative objective evidence constituting a "basis in fact" for the Review Board to conclude as it did that Rosengart's "purported conscientious objective [sic] beliefs are not truly held."*fn32 Reliance upon unfounded assumptions or ipse dixit disbelief is not enough.*fn33 We are also mindful of Judge Smith's recent well taken observation in United States ex rel. Donham v. Resor,*fn34 that great weight ought to be accorded to favorable observations and recommendations of sincerity submitted by officers who have pursuant to regulation, personally interviewed a CO applicant.*fn35
Since the Review Board gave no reasons for its finding of Rosengart's insincerity of belief, and since the district court spoke only in the most general terms with respect thereto, we have undertaken our own independent search of the record*fn36 for facts upon which the Army determination should be appraised.*fn37 We have determined from our reading of the record that the Army had available to it a set of inconsistent statements, made by Rosengart within a two-month period in connection with two separate applications, which in all probability was not available to the four officers before whom Rosengart personally appeared at the initial stages of his AR 135-25 processing. This objective evidence, we believe, "substantially blurs the picture painted by [Rosengart] and thus casts doubt on his sincerity,"*fn38 vitiates the importance of the two hearing officers' recommendations (and also the purely advisory recommendations of the psychiatrist and chaplain) that Rosengart was sincere in his beliefs and that he, therefore, should be granted a CO discharge, and constitutes a "basis in fact" for upholding the determinations of the Army and the district court below.
The evidence to which we refer consists of arguably self-serving statements made by Rosengart with regard to the significance of his employment as a lawyer. On June 3, 1968, in support of his application for a hardship deferment, Rosengart stated that he had just passed the Patent Office bar examination which, in connection with his remunerative association with a patent law firm, would permit him to contribute greatly to the support of his incurably ill mother and unemployable father. Rosengart stated as follows:
"I recently passed the Patent Office bar examination and after this year I will be able to contribute about $3,000.00 per year (which sum will grow each year as my income grows) to my family. This money will be desperately needed by my family."*fn39
What Rosengart failed to mention, however, was that since May 13, 1968, some three weeks earlier, he had taken a position as a staff attorney with New York's Mobilization for Youth. This material fact, omitted in the June 3 letter, emerged in Rosengart's August 1, 1968 CO discharge petition, as further proof of the sincerity of his beliefs in opposing all war. Rosengart stated, in pertinent part, that he was working at a salary
"equal to approximately 60% of the salary which I could be earning in industry or in business law firm. I intend, at enormous sacrifice in earnings [and impliedly to his family's welfare], to devote my entire career to non-business public service work as a lawyer for poor people. I do not consider this a sacrifice--this is how I wish to live my life."*fn40
Despite the facts that Rosengart had been a civil rights worker in Mississippi who had been shot at, and that he had come to abhor violence and had accordingly participated in "a series of religiously oriented nonsectarian camps devoted to peaceful ideals," we believe that the Army was entitled to draw the inference, not successfully rebutted here, that Rosengart as a matter of expedience had tailored his facts to fit the circumstances, to set aside or severely discount the importance of the hearing officers' recommendations made on the basis of incomplete information, and to deny his discharge application on the ground of insincerity. We so hold without stating whether we would come to the same conclusion reached by the Army Board; that is not our function. The federal courts are not super-Army review boards entrusted with the responsibility and authority to substitute their own judgments as to the weight and sufficiency of the ...