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WARREN v. LAIRD

August 11, 1972

Alexander WARREN, Petitioner,
v.
Melvin R. LAIRD, as Secretary of Defense, et al., Respondents


Cooper, District Judge.


The opinion of the court was delivered by: COOPER

COOPER, District Judge.

Petitioner moves for a preliminary injunction and a writ of habeas corpus releasing him from the custody of respondents. *fn1" Motion granted. *fn2" Arlen v. Laird, 345 F. Supp. 181 (S.D.N.Y. 1972).

 I Facts

 Petitioner is a Second Lieutenant in the United States Army Reserve (Reserves) not currently assigned to a particular reserve unit and awaiting orders to report for active duty.

 Petitioner was a member of the Reserve Officers Training Corps (R.O.T.C.) for four (4) years while pursuing undergraduate studies at the University of Pittsburgh. Orders to active duty were deferred until petitioner completed his graduate studies at Columbia University. While in attendance there, petitioner submitted an application to resign his commission; this request was denied by the Army on March 19, 1970.

 On June 17, 1970, petitioner filed an application for discharge from the Reserves as a conscientious objector relying on provisions of Army Regulation (AR) 135-25. Petitioner was not given the required interviews by the Army's own designees, the chaplain, the psychiatrist and the hearing officer, until October 29, 1970.

 The application and accompanying interview reports were then forwarded to his nominal commanding officer, United States Army Reserve Components Personnel Center, located at Fort Benjamin Harrison, Indiana, the centralized headquarters to which all Inactive Reserve Officers are assigned for administrative purposes. Despite numerous requests for information, petitioner was not informed of the recommendations of the interviewing officers until April, 1971 when he was given only a copy of the report of the hearing officer. It stated that petitioner's sincerely held religious beliefs made him a conscientious objector to participation in war in any form and recommended he be discharged from the Army for the convenience of the Government. (see Hearing Officer's Report, p. 7.)

 Referring to petitioner's opinions on war and peace the Chaplain found, and so stated in a signed written statement: "These opinions, nevertheless seem to be rooted in serious thought and conviction."

 As to the Psychiatrist, we find that in a signed written statement dated November 23, 1970, he reported:

 
"He presents as a sincere sounding young man with no evidence of psychiatric illness or disease . . . The individual is mentally responsible. He is able with respect to a particular act to distinguish right from wrong according to the standards of his current society and to adhere to the right. He has the mental capacity to understand the nature of board proceedings and to cooperate in his own defense."

 Nonetheless, petitioner's immediate commander recommended disapproval of his application. On May 25, 1971 petitioner's application for discharge was disapproved by the Department of the Army Conscientious Objector Review Board (CORB) without any further interview of petitioner. On May 13, 1971, the Convening Authority approved the recommendation of CORB. On June 2, 1971, petitioner was ordered to report for active duty commencing June 15, 1971.

 II Jurisdiction

 This Court has jurisdiction to determine the within claims. Strait v. Laird, 406 U.S. 341, 92 S. Ct. ...


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