Applicant, who had been court-martialed for unauthorized
absence, and having exhausted all military administrative remedies,
sought release by habeas corpus in the District Court, claiming
that the improper processing of his application for discharge from
military service should have barred his conviction. A broad and
sweeping stay was denied by the Court of Appeals. Pending
disposition of applicant's appeal on the merits of this case, which
involves the contention that the matter of conscientious objection
is one of First Amendment proportions, a stay is granted directing
that applicant be confined in "open restricted barracks" and not in
the brig where, if his allegation are true, his life may be
18 U.S.C.M.A. 513, 40 C.M.R. 225.
MR. JUSTICE DOUGLAS, Circuit Justice.
Applicant, who has been convicted by the military authorities
for unauthorized absence, brought suit in the District Court for
release by habeas corpus and for other ancillary relief. He
apparently has exhausted all military administrative remedies, the
Court of Military Appeals having denied him any relief.
His conflict with the Navy arose out of his desire to be
discharged as a conscientious objector, a status he claims to have
acquired some five months after his enlistment. Department of
Defense Directive 1300.6, August 21, 1962, revised May 10, 1968,
provides for processing such applications and states that pending
decision on the application and "to the extent practicable," the
applicant "will be employed in duties which involve the minimum
conflict with his asserted beliefs."
According to the allegations, applicant made repeated attempts
for 37 days to file and process his application
Page 396 U. S. 1228
for discharge as a conscientious objector and, if the
allegations are sustained, was unable either to make a filing or
obtain a hearing. He thereupon left his place of duty without
authorization, thereafter surrendering himself. Once again, if his
allegations are believed, he was unable to make a filing or obtain
a hearing on his request for discharge as a conscientious objector.
He thereupon escaped from Navy custody to obtain legal counsel, who
surrendered him to Navy authorities while the conscientious
objector application is pending.
The basic question of law is whether improper processing of an
application for discharge as a conscientious objector is a defense
to court-martial proceedings.
The question will, in time, be decided by the Court of Appeals
or by the Supreme Court, as applicant has appealed from the
dismissal of his petition by the District Court.
The issue tendered in this case -- and in others before the
Supreme Court -- is that the matter of conscientious objection is
of First Amendment dimensions whether based on religion,
philosophy, or one's views of a particular "war" or armed conflict.
Whether that view will obtain, no one as yet knows. But if it does,
the question now tendered will be of great constitutional
I express no views on the merits. But I think a substantial
question is presented. A stay of a broad and sweeping character has
been denied by the Court of Appeals, and I would concur but for one
circumstance. Confinement of applicant to the brig is apparently
contemplated, and, again, if his allegations are believed, sending
him there may endanger his life in view of the cruel regime which
obtains in that prison.
Accordingly, I have decided to grant a stay directing
respondents to confine applicant in the so-called "open restricted
barracks" and restraining them from confining applicant in the
brig, pending disposition of this appeal on the merits.