Appeal from an order of the United States District Court for the Southern District of New York, Hon. Sylvester J. Ryan, Judge, denying petition for writ of habeas corpus on ground that there was basis in fact for Air Force's denial of conscientious objector status. Reversed and remanded with instructions to issue the writ.
Lumbard, Mansfield and Mulligan, Circuit Judges.
The petitioner-appellant, Martin E. Ferrand, is a doctor of medicine and a Captain in the United States Air Force Reserve. His undergraduate work was at Spring Hill College, a Jesuit institution, in Mobile, Alabama, where he enrolled for a time in the Reserve Officer Training Corps (ROTC). He then attended Louisiana State University Graduate School for one year before entering its Medical School, from which he graduated in 1967. In November, 1967, he received a Commission as a First Lieutenant in United States Air Force Reserve pursuant to the Berry Plan. The Plan permitted Ferrand both exemption from the draft and postponement of active military duty until his medical studies were completed. Thus he was able to serve as a resident in psychiatry at Mt. Sinai Hospital from 1968 to 1970, and as a resident in child psychiatry from 1970 to 1972.
Ferrand, who had been promoted to Captain on June 3, 1970, was advised by the Air Force in September, 1971 that he would be called to active duty in 1972. In October, 1971, he wrote to the Air Force requesting information permitting him to apply for the status of conscientious objector. On December 2, 1971, Ferrand tendered his resignation by reason of conscientious objection and, on December 10, 1971, he made formal application for C.O. status. As will be more fully developed hereafter, Ferrand proceeded through the appropriate administrative channels until ultimately, on April 17, 1972, the Secretary of the Air Force declined to classify him as a conscientious objector within the meaning of A.F.R. 35-24, 32 C.F.R. § 888e. On August 11, 1972, a petition for a writ of habeas corpus, as well as a motion for a preliminary injunction staying petitioner's orders, was filed in the United States District Court, Southern District of New York. The matter was argued on October 12, 1972 before Hon. Sylvester J. Ryan, who rendered his decision on October 17, 1972, upholding the denial of the petitioner's application for discharge as a conscientious objector. This appeal followed from the order entered in the Southern District Court on April 10, 1973.
In his decision below, Judge Ryan found that Ferrand's application for discharge as a conscientious objector after a deferment of four years put his sincerity in issue, and, further, that his approval of a police force for the protection of society created a basis in fact for the denial of the application.
The regulation which provides for the discharge of in-service conscientious objectors who are members of the Air Force is A.F.R. 35-24, 32 C.F.R. § 888e, which, in the pertinent section 2(a), requires that the applicant establish that he has "[a] firm, fixed, and sincere objection to participation in war in any form or the bearing of arms by reason of religious training and belief."
Ferrand's application for discharge sets forth in considerable detail his conscientious objection to war based, initially at least, upon his Roman Catholic educational background, but eventually upon his own individual religious and ethical tenets. He asserted that his conscientious objector beliefs did not finally crystallize until he was faced with the reality of active service. While he recognized that as a psychiatrist he would probably not be put in the position of having to kill a fellow human being, he stated that he could not in conscience treat a soldier attempting to carry out goals which he considered to be morally wrong. His application was supported by letters from his mother, his cousin who is a Roman Catholic priest, two doctors who are personal friends, as well as a psychiatrist, all of whom attested to the sincerity of his convictions as a conscientious objector to war.
Pursuant to regulation, Ferrand was interviewed by a Chaplain, Lt. H. I. Ratcliffe, Jr., of the Naval Hospital at St. Albans, New York. The purpose of the interview was to determine his sincerity and the depth of his convictions. Chaplain Ratcliffe concluded:
Overall, I feel that Dr. Ferrand is quite sincere in his convictions and that he is indeed a conscientious objector to war and service in any organization that participates in the same.
He also considered that Ferrand would be an excellent candidate for alternate service in a public child care agency. Although Ferrand preferred to remain in the New York area, he expressed willingness to serve any place in the country, which the chaplain believed to be indicative of his integrity.
Ferrand was also interviewed by Lt. Col. J. Derascavage, who was the investigating officer. His findings were that Ferrand was opposed to all wars, and that he did not believe there was such a thing as a just war, particularly in the nuclear age. He stated that Ferrand's "behavior and comments during the entire interview reflected deep sincerity in his beliefs that war and killing cannot be justified." Based on Ferrand's written statement and the personal interview, Col. Derascavage
highly recommended that his application for conscientious objector be approved. His replies to all questions reflected profound sincerity in his beliefs that war or killing cannot be justified, and I am convinced that it would be an injustice to ...