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June 27, 1973

UNITED STATES of America ex rel. Alan D. TICE, Petitioner,
Robert C. SEAMANS, Jr., Secretary of the Air Force, et al., Respondents

Gurfein, District Judge.

The opinion of the court was delivered by: GURFEIN

GURFEIN, District Judge.

The petitioner is a physician, currently a resident in internal medicine at Bellevue Hospital and a First Lieutenant in the United States Air Force Medical Reserve. He petitions for a writ of habeas corpus, seeking discharge from the Armed Forces as a conscientious objector. Jurisdiction is alleged under 28 U.S.C. §§ 2241, 2242, 2243 (habeas corpus); 28 U.S.C. §§ 1331, 1332 (federal question); and 28 U.S.C. § 1361 (mandamus). Venue is said to be proper under 28 U.S.C. § 1391. *fn1"

 The petitioner had earlier brought a similar petition which I remanded to the Secretary of the Air Force for further consideration of his decision to deny conscientious objector status to the petitioner in the light of this Circuit's opinion in United States ex rel. Checkman v. Laird, 469 F.2d 773, 778-779 (2 Cir. 1972).

 Instead of reviewing the matter de novo, the Secretary wrote a letter to the Court, under the signature of Jeanne M. Holm, Brigadier General, USAF, Director, Secretary of the Air Force Personnel Council, purporting to inform the Court of the reasons for adhering to the earlier conclusion.

 Accordingly, "[when] there is a requirement of law that reasons be stated by executive officials or administrative agencies responsible for decisions, there is an implicit corollary that the decision must stand or fall on the basis of the reasons stated." Checkman, supra, at 780.

 We must, therefore, analyze the reasons given by the Air Force for the denial of discharge because of conscientious objection. That commands inquiry into the history of the petitioner.

 The facts, as they appear from the record, are as follows: On October 10, 1970, the petitioner applied for a commission under the Berry plan. He received an appointment as a First Lieutenant in the United States Air Force on January 25, 1971. He was then advised that he would be ordered to active duty for two years in either the summer or fall of 1972. At the time of his enlistment the petitioner did not claim a conscientious objector status.

 In July 1971, after having spent three months in Thailand as a medical student studying tropical diseases, the petitioner wrote to the Air Force requesting assignment to Thailand to fulfill his active duty commitment. He repeated this preference in October 1971.

 Subsequently, the petitioner "became aware, through conversation with a physician who had been to Thailand, what my role as a physician would be in the Air Force. I found myself reassessing my beliefs and questioning whether I could reconcile these beliefs with that I now understand to be service in the Air Force." (Tice Affd. 6/1/73, P 5).

 On April 5, 1972, Dr. Tice wrote a letter to the Department of the Air Force, Headquarters, Air Reserve Personnel Center: "This is to advise you that I hereby request discharge from the United States Air Force on grounds of conscientious objection. I, therefore, formally tender my resignation as a 1st Lieutenant in the U.S. Air Force Reserve Medical Corps."

 By return mail, on April 11, 1972, the Air Force outlined the procedures which the petitioner was to follow in pursuing his discharge as a conscientious objector. He was told to furnish proof of his selective service classification and statements from a legal officer, a military chaplain and a military psychiatrist based on personal interviews. He was informed also that a hearing would be conducted by an officer in the grade of Major or higher. See 32 C.F.R. §§ 888e.12-888e.28.

 The psychiatrist "cleared" the petitioner for conscientious objector discharge. The Protestant Chaplain recommended that the request for discharge "be approved." And Major Brown who conducted the hearing submitted findings which concluded, "I recommend that Lt. Tice be granted a discharge as a Conscientious Objector in category 1-O." The Air Force also received six letters on behalf of Tice's application. They were dated from April 19 to May 11, 1972.

 The file was forwarded to the Air Reserve Personnel Center at Denver. On September 11, 1972 the Staff Judge Advocate also recommended approval of the petitioner's application, which was transmitted with the file to Randolph Air Force Base, Texas.

 On September 27, 1972 two things happened. The Command Chaplain's Office also recommended approval, noting that "Lt. Alan D. Tice meets the basic requirements of conscientious objector status. His beliefs against war are deeply and sincerely held, however naively they may have been formed." On the same day, however, the Medical Personnel Procurement Division, Office of the Surgeon General recommended disapproval, stating, "Based on Lieutenant Tice's action during the time he was a participant in the Berry program, one must question the degree of sincerity of his ...

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