They Step to a Different Drummer: A Critical Analysis of the Current Department of Defense Position Vis-A-Vis In-Service Conscientious Objectors
| Author | By Major David M. Brahms |
| Pages | 01 |
In this article, the autho? examines the legal atatw, of the soldier developing religious M. philosqihioal beliefs antithetical to continued actice military seruiee. The CVI- rent Department of Defense policy tward and procedures for processing the indwidml iwsemice cmoientious objector's reptiest for discharge are analyzed. The oathor concludes that the interests of neither the objector no? the seruices are adeqmtely protected by ourrent DOD polzoy and suggests improved procedures to remedu the SitutioliL.
If B man doea not keep pace with hi8 comp~nions, perhaps it is
Let him step to the mule whieh he hears, however measured or because he hems a different drummer.far BWBY.I
I. IXTRODCCTION
The long dormant problem of the in-service conscientious objector has of late been thrust to the forefront as a concomitant of the increased opposition to the war in Vietnam. The actions of the military in this regard have come under the scrutiny of the news media 8s well as the federal courts. No longer can the military hope to treat such problems as purely internal matters, to cloak its actions behind a curtain of military privilege os judicial non-reviewability.. The note of the "distant drummer" is being heard by the public at large.
The in-service objector finds a significant segment of the civilian community ssmpathetic to his cause, even to the paint of their
'This article WBQ adapted from B thesin presented to The Judge Advocate General's School, US Army, Chsrlatteaville, Virginla, while the author Was a member of the Seventeeth Advanced Course. The opinions and can. clusianJ presented herein are those of the avthor and do not neceriarily reprerent the views of The Judge Advocate General's School 07 any other governmental agency.
"USMC: Deputy Staff Judge Advocate, 1st Marine Aircraft Wing (Viet. "am), Fleet Post Ofice, Sa" Francisco 96602; A.B., 1969, LL.B., 1862. Hsr-yard University; member of the Supreme Judxial Court of Masaaehurettn and the US
Court of llhtaiy Appeals.
offering him Sanctuary in their houses of Myriad agencies exist to provide funds and competent legal counsel to aid his defense efforts. His plight has become newsworthy.
The federal courts have recently shown a penchant to invade the military "sanctuary" established by the Supreme Court in Orloff \'. Wi1loughby.l KO longer will they out of hand deny a habeas corpus petition of an aggrieved in-service objector on the erounds that internal military administrative procedures are unreviewable." The issue has been clearly joined: the battle lines hare been drawn. Will the military services hear and understand the drummer and respond effectively to his measured beat before the inexorable pressures of adverse publicity or judicial pronouncement force them to do so-perhaps with modes of action Ill-suited to their needs?
It is hoped that this article will aid in furthering that end. It will seek to rxamine in depth the current administrative scheme established by the Department of Defense with regard to in-service conscientious objectors." This scheme was designed to handle the delicate task of rationalizing the traditional rights of the individual to profess and practice his beliefs and the need of the armed services to preserve a disciplined, effective fighting force.
The area of in-service conscientious objection subsumes two different categories of persons. The first are those who profess beliefs which are totally antithetical to any continued participation in military activities of any type. This group corresponds to the Selective Serrice class 1-0.' They generally are seeking to termi-nate their military status through discharge. The second category comprises those service members who object only to par'tlcipation in combat or activities directly related thereto. This group corresponds to Selective Service Class I-A-0.' They ordinarily desire iob reassirnment to "on-combatant Dositions rather than dls-
~ 'See The Warhingtan Post, Oet. 1, 1868. B A, st 8, eai. 1'34; U.S. 83 (1913). "[Jludges m e not given the task ai running the Army. The reeponsibility . . . rests "pan the President of the United Stetes and hx subordinates. The mliitary eonstirntea a apeeiallzed eommunlty mr-erned by B Separate discipline from that of the civilian. Orderly gaiernment requires that che iudiciary be BQ scrupvloua not to interfere with legitimate army inrereits as the Army must be sccrupuioun not to intervene ~n iudieial matters." Id. at 98-94,
~ d B ~ ~ e ~ d ~ ~ ~ ~ , = ~ 9 ~ ~ ~
X.D. Cal 19681.
' 'Dep't of Defense Directive So. 1300.6 (10 Yay 1968) [hereafter cited as DOD Dii. 1300.61.
'32 C.F.R.
5 1622.14 (1868). '32 C.F.R.
5 1622 11 (1868). 2
Lez;t,c;;f;,
;;&;z;ip;$,d2;o
COXSCIEHTIOUS OBJECTORS
charge. This article will focus its attention onlv on the problems relating to the former group. It is with this group that the serious conflicts arise. It is here that the confrontation takes place, that is: (1) there is a collision of the services' need to maintain troop strength and the objector's desire for discharge; (2) the moral issue of possible avoidance of a military obligation arises: (3) the strongly held beliefs of the objector and the rigid disciplinary rules of the military society clash. Unlike the case of the service member who objects only to combatant service, the problems engendered by the total objector cannot be solved by re-course to remedies indigenous to the services, such as job reassignment.
It is my intent that the critical analysis which follows achieve two primary goals: (1) a recognition of the possible defects and anomalies present in the current administrative scheme; (2) concern within the armed forces far constructive revision thereof to attain a rational, effectire administrative process for balancing the important interests involved. If such action is not taken, it is inevitable that these processes will be redesigned by an unsym-pathetic outslde agency.
The initial question which will be examined is whether eanscientious abjection is a mere privilege or a right of constitutional dimension. Is the recognition of conscientious objector status by the military services constitutionally required, or is it merely a Kratuitaus re8ponse ta policy considerations? The Department of Defense has bottomed its procedures far handling in-service conscientious objector claims on DOD Directive 1300.6, which states that conacientious objection is B mere privilege. The validity af this premise will be considered in light of constitutional history and recent decisions of the United States Supreme Court defining Lhe scope of the first amendment's protection of the right to free-dom of religion. The specific administrative procedures established by the aforementioned directive will then be examined to determine whether they comport with minimal standards of administrative due process and afford the claimant his right to equal protection of the laws. This examination will be made in light of the procedures being used to handle both the pre-service conscientious objector and the service member being processed far other tms of administrative discharges.
11. COSSCIEKTIOUS OBJECTION: A COSSTITUTIOSAL RIGHT OR MERE PRIVILEGE?
-
HISTORICAL .I.VALYSIS
A traditional starting point far the discussion of constitutional questions has been to examhe tlieir historical background. Such an approach has merit here in that it will better enable the reader to appreciate the cuirent legal position of the in-selvice objector. It will also provide a background that will permit an ill-formed judgment as ta whether conscientious objection IS a mere privilege rezulting from an exercise of congressional grace or is a constitutional right.of this mea have tended to focus on the conaideratian and apparent rejection by the First Congress of James Madison's constitutional amendment. This amendment, intended to be included ab a part of the proposed Bill of Rights. exempted conscientious objectors from active military service." A conclusion which may be drawr. therefrom is that conscientious objection may not be brought within the ambit of the first amendment's language, since the First Congress's actions with regard to this area clearly evince a judgment that mch IS not a right of constitutional magnitude." When viewed againat the hirtarical background of the conscientious objector amendment and the political realities of the times, however, this conclusion becomes suspect; and one sees strong evdence that the founding fathers indeed intended to include conscientious objectors under the aegis of the Eill of Rights protections
Previous historical analyces
1. Commentious Obiaction Prlor to 1189.lladison'e amendment w.s a reflection of a long standing tradition of respect for and accommodation of the beliefs of religioudy oriented conscientious objectors. Perhaps the most important manifestation of this concern may be seen in the following resalution of the Continental Congress
That k t be recommended to the inhabitants of 811 the United English Calaniei in North America that a11 able bodled effective men
__- onsnenfious Otjceloi Provision~ A V i e ~ m the Light of
106 r.
PA.
cited 8s ASUALSI r I A Y T ~ S
~
OF THE U N ~ D
L. RE\. 806, 803-13 (1958).
OF THE COXDRESS
STATES 434 (18311 [hereafter
Conkhn, nrpra note P at 263-64; Ruasell. Bupra note 8 at 436-38Freeman. Bwro note 8 at 213.
CONSCIENTIOUS OBJECTORS
between mrteen and fifty years af age in each colony, immediately form themselvea into regular companies of militia . . . .
As is clear from the text of this resolution, it was promulgated in a time of great national crisis as the Revolutionary War was imminent. In spite of the crisis and the great need for troops occasioned thereby, respect is urged far freedom of conscience of those religiously opposed to bearing arms.
It is not surprising that the Congress should show solicitude towards such persons. Mast of the individual colonies had previously given formal...
To continue reading
Request your trial