Appellate Law

CA1: Army loses conscientious objector case from Copt Doc

By S. COTUS

Hanna v. Secretary of the Army, No. 07-1090.  This is a petition of an Army Doctor that was denied conscientious objector status.  The petitioner sought habeas relief.  The District Court granted it.  The First finds agrees because the Department of the Army Conscientious Objector Review Board ("DACORB")?s decision was without basis in fact.

If you love America, you will keep reading!!!

Let's look at the facts. 

1. The doctor argued administratively that as a Christian (i.e. a member of the Coptic Orthodox Church ("COC")), she would be committing a crime against god and Jesus and stuff to participating in the killing;
2. There is evidence of her long participation in the COC, but she did waiver a bit in college.
3. After seeing some non-religious documentaries on war, she became convinced that war was a "complete separation from god."
4. She submitting letters from priests and professors in her residency program
5. The Army appears to have noted that a) it needs anesthesiologists; b) the COC is not really a pacifist church; but c) she is sane but opportunistic (even though she offered to repay the Army for her training)

Anyway, by the time it got to a Investigating Officer, there was a dispute about what the COC really believes and its traditions.  The Investigating Officer sided with the petitioner, and disagreed with an Army chaplain.  (Must have been an interesting opinion because it explained the difference between abortion and war, and explained how someone can have no problem treating police officers and gang members but still have a moral objection to treating soldiers in the field of battle.)  The government seems to have claimed that it was entitled to an adverse inference because she hired an attorney (who was a West Point grad and had been on active duty) that had experience in Conscientious Objector matters (the Investigating Officer shot that down). 

The hearing officer's conclusions were concurred with up the chain of command.  But the DACORB put a stop to it.  It concluded that although her statements were logical, they lacked passion and sincerity, her timing was too convenient.  Just so you know, on the board: 1) the lawyer voted to approve it; and 2) the priest voted to disapprove her application.

It argues first that the timing of her application casts doubt on her sincerity and that her explanations for the change in her beliefs were inconsistent.   The First disagrees with the board, and notes that the Army "blotted out" the findings of sincerity by the Investigating Officer.

Second, it argues that her beliefs were not gained through rigorous training, study or contemplation.  See 32 C.F.R. § 75.5(c)(2)(ii). But the First says that the regulation doesn't say that rigorous training is the only way one can come by religious beliefs, and "The fact that non-religious documentaries contributed to Hanna's view that there is a conflict between her religious faith
and her military service does not mean that her beliefs are purely ethical or moral or that they lack religious grounding."

Procedurally, the First denies a remand, saying that the Army only raised it before the First.  Boudin dissents, saying that there could be bad precedent.  A commentator (below) has some interesting points.  Boston Globe reports here.

Full post as published by Appellate Law and Practice on January 09, 2008 (boomark / email).