The opinion of the court was delivered by: MOTLEY
Harry Applebaum, a physician in the United States Air Force Reserve, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner brought on the instant petition by order to show cause dated November 16, 1972. The petition is granted for the reasons which follow.
Petitioner, a resident of New York, received his appointment as an Air Force Reservist after his order of induction dated March 17, 1971. He was appointed a first lieutenant on June 8, 1971. After several delays, during which time petitioner continued his education, he was scheduled to report to Sheppard AFB, Texas, on May 7, 1972, with eventual assignment to Udorn Airfield, Thailand. After notification of his impending call to active duty, petitioner, by letter dated February 8, 1972, requested the Air Reserve Personnel Center, Denver, Colorado, to furnish him information on the procedures for applying for conscientious objector status. On April 5, 1972, he applied for conscientious objector status and on May 23 he tendered his resignation "by reason of conscientious objection." According to the application, petitioner's ". . . moral abhorrence of violence which is the antithesis of the military philosophy, [had] developed through . . . his recent experience in a ghetto community hospital. (Petitioner's Exhibit A, attached to Hyman affidavit, dated November 15, 1972).
The call to active duty was deferred pending disposition of the conscientious objector application.
Pursuant to the advice furnished him by the Air Reserve Personnel Center, petitioner arranged for interviews with a military chaplain, psychiatrist and an officer at McGuire Air Force Base in New Jersey. 32 C.F.R. §§ 888e.20, 888e.22. Apparently because McGuire did not have a Jewish chaplain on base, petitioner was sent to Fort Dix, New Jersey, for an interview with a chaplain there.
On June 14, 1972, a hearing was conducted at McGuire by Major George Phillips. On June 26, 1972, despite the Chaplain's recommendation that petitioner's application be approved (Respondents' Exhibit 6, attached to affidavit of V. Pamela Davis, Assistant United States Attorney, dated November 30, 1972), on June 26, 1972, Major Phillips recommended disapproval of the application. (Respondents' Exhibit 33). Major Phillips relied on what he believed to be certain inconsistencies in Applebaum's reasoning which purportedly indicated a lack of sincerity.
Petitioner was allowed to examine and comment on the materials to be forwarded from McGuire and his rebuttal, dated July 10, 1972, was sent to the Air Reserve Personnel Center. (Respondents' Exhibit 12). 32 C.F.R. § 888e.26.
On July 31, 1972, Col. Mack E. Schwing, the Staff Judge Advocate, Air Reserve Personnel Center, recommended approval of the application. (Respondents' Exhibit 11). The Air Reserve Personnel Center (similarly recommended approval of the application on August 3, 1972. (Respondents' Exhibit 10).
On September 13, 1972, however, the office of the Surgeon of the Department of the Air Force recommended disapproval. The thrust of the report was that it was inconsistent for Applebaum to object to treating military personnel as a military officer on the ground that he was opposed to violence since as a physician in civilian life he would have to confront those acts of violence which are ". . . unfortunate but . . . inherent in human behavior. . . . Thus, if Lieutenant Applebaum were to abide by his stated objection to violence in all aspects, he would in good conscience be forced to seek another profession." The report further stated, "We can agree that if Lieutenant Applebaum has deep moral feelings about serving in Southeast Asia, then he sould [sic] be utilized in another assignment not in direct support of that conflict. In this regard, if his C. O. application is disapproved, he will be reassigned to a stateside Air Force medical facility where he will be utilized to treat mostly dependent patients." (Respondents' Exhibit 9).
On October 13, 1972, Brig. Gen. Frank O. House, Director of Civil Law, Office of the Judge Advocate General of the Air Force, reported that his office had concluded that Applebaum's application should be denied on the ground that there was ". . . sufficient evidence of record to demonstrate that his application may well result from an expedient effort to avoid active military service," given the timing of the application and what the office believed to be inconsistencies in the application. (Respondents' Exhibit 3). The Secretary of the Air Force adopted this recommendation and declined to classify petitioner as a conscientious objector on October 30, 1972.
Applebaum filed this action on November 15, 1972 and on November 17, respondents were temporarily restrained from requiring petitioner to report to Sheppard Air Force Base pending the decision on the petition for habeas corpus relief.
The basis of the petition is that the denial of Applebaum's application by the Air Force was irrational and unsupported by the record. United States ex rel. Checkman v. Laird, 469 F.2d 773 (2d Cir. 1972).
I. The threshold question is whether this court has jurisdiction under the federal habeas corpus statute, 28 U.S.C. § 2241 et seq.
The statute provides that federal courts may grant the writ "within their respective jurisdictions," 28 U.S.C. § 2241(a), to those "in custody under or by color of the authority of ...