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February 9, 1973

George H. NURNBERG, Petitioner,
Robert F. FROEHLKE, Secretary of the Army, and Louis J. Prost, Commanding Officer of the United States Army Reserve Components Personnel and Administration Center, St. Louis, Missouri, Respondents

Robert L. Carter, District Judge.

The opinion of the court was delivered by: CARTER


Petitioner applies for a writ of habeas corpus to compel his release from the United States Army as a conscientious objector and also brings on by way of an order to show cause a motion for preliminary injunction staying his call to active duty status which had been scheduled to take place on January 8, 1973. A preliminary injunction was granted pending final determination on the merits. For reasons detailed below, I find that petitioner qualifies for release as a conscientious objector pursuant to AR 135-25 and that the military contrary determination was in error.


 Petitioner, a citizen of the United States and resident of New York, was born in Germany in 1942. His mother was Jewish. Although entitled to classification as an "Aryan" under the nefarious standards then in effect in Nazi Germany, petitioner's father decided to share the fate of his Jewish wife. Both were subjected to persecution. Somehow all three -- parents and petitioner -- survived the hazards faced in Germany and came to this country as displaced persons in 1949 when Dr. Nurnberg was seven years old. Admittedly, the germination of Dr. Nurnberg's conscientious objector beliefs can be traced to this early experience.

 Petitioner attended college and medical school in this country. In 1969 he enrolled in the Berry Plan, a program which places medical students in the Army Reserves and enables them to complete their medical training prior to being called to active duty. Petitioner has now graduated from medical school, completed his hospital residency and is a licensed physician and psychiatrist.

 On October 25, 1971 petitioner applied for discharge from the United States Army Reserves as a conscientious objector. AR 135-25, which is the regulation controlling disposition of petitioner's application, provides in pertinent part:

"5 a. Consideration will be given to requests for discharge by reason of conscientious objection to participation in war, in any form, when such objection develops subsequent to the member's entry into military service, whether such entry was by induction, enlistment or appointment in any component of the Army.
b. Federal courts have held that a claim to exemption from military service under Selective Service laws must be interposed prior to notice of induction, and failure to make timely claim for exemption constitutes waiver of the right to claim. However, claims based upon conscientious objection growing out of experiences prior to entering military service, but which did not become fixed until entry into the service, will be considered.
c. Consideration will not be given for discharge based solely on conscientious objection which --
(1) Existed but was not claimed prior to member's initial entry into military service either by induction or enlistment or appointment in any component of the Army; * * *." (emphasis supplied).

 Pursuant to this regulation petitioner applied for 1-0 classification (conscientiously opposed to participation in war in any form and to both combatant and noncombatant training and service in the armed forces). The requisite forms were completed, and submitted in support of his claims were letters from petitioner's mother, his rabbi, the Medical Director of the Manhattan Poverty Project where petitioner had worked and the Director of Psychiatric Training at St. Vincent's Hospital in New York City.

 On or about February 12, 1972, petitioner was interviewed at Fort Totten, New York by a psychiatrist and a chaplain. The hearing with the investigating officer scheduled for the same day was cancelled, and petitioner was advised that the cancellation was the consequence of a change in regulation.

 On or about June 3, 1972, new interviews took place. The chaplain, Captain Donald N. Martin, concluded that Dr. Nurnberg was sincere in his conscientious objector beliefs and that these convictions were based "on the ethics and morals of the Jewish religion." The psychiatrist, Captain B. I. Feinberg, found that Dr. Nurnberg evidenced "no psychiatric disorder" and that his "current life style is seemingly consistent with his beliefs."

 On June 7, 1972, Dr. Nurnberg was interviewed by Major Thomas J. Reddington, the investigating officer, in the presence of his attorney, counsel for him in this Court. Major Reddington in his report states that petitioner's attorney had taken longhand notes and had "approximately summarized most of the questions and answers." A copy of those longhand notes was attached to the Major's report and was, therefore, a part of the record in the case.

 Major Reddington concluded that, based on analysis of all the evidence before him, Dr. Nurnberg was not "sincere in his beliefs" and that these beliefs had "crystallized prior to [petitioner's] entry into service." He, therefore recommended that petitioner's application be denied.

 All of these documents (the application, letters in support, reports of the chaplain, Captain Martin, of the psychiatrist, Captain Feinberg, of the investigating officer, Major Reddington, together with summarization of the questions and answers at the June 7, 1973 interview, and a rebuttal of Major Reddington's report prepared by petitioner's counsel) constituted the record before the Conscientious Objector Review Board (CORB) when it reviewed the application. In addition, the reviewing authority had before it a letter dated 22 August 1972 from a Captain John L. Locke. In this letter Captain Locke concurred in the views of the investigating officer and recommended disapproval on the grounds that petitioner's claimed beliefs were "based upon expediency and that alleged beliefs apparently existed but were not claimed prior to initial appointment." In addition, Captain Locke added that petitioner's "application was not submitted until no further delay was authorized. There is no record on file of his declination of promotion as promulgated (sic) in his application." It does not appear that Captain Locke's letter had been seen by petitioner prior to its being forwarded to the Review Board.

 On September 27, 1972, the Board, after reviewing the above documents, held that Dr. Nurnberg failed to qualify for 1-0 classification since his conscientious objector beliefs existed but were not claimed prior to petitioner's entry into military service. It based this determination on certain specified statements in petitioner's application and in the supporting letters and on the finding of prior crystallization in Major Reddington's report.


 Court review of a military determination is strictly limited to (1) a determination of whether petitioner's entitlement to substantive and procedural due process has been infringed and (2) ascertainment of whether there exists a basis in fact for the denial of petitioner's application.


 It is alleged that petitioner's rights of substantive and procedural due process have been violated because: (1) the Army failed to set forth the reasons for the denial of the application in its letter to petitioner notifying him that his application had been denied; (2) procedures set forth in AR 15-6 were not followed; and (3) reliance was placed by the Conscientious Objector Review Board upon a report by Captain Locke which petitioner had not been permitted to see or rebut.

 The Letter of Notification

 In the letter dated November 2, 1972, from Lt. Col. Billy LaFever, Office of the Adjutant General, U.S. Army Reserve Components Personnel and Administration Center, petitioner was advised that "[the] facts and documents presented in your behalf have been carefully considered by the Department of the Army Conscientious Objector Review Board convened at this headquarters. Your request for discharge by reason of conscientious objection is hereby disapproved due to the failure to meet the criteria outlined in AR 135-25." While no copy of the Board's decision was enclosed, there is no evidence that petitioner encountered ...

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