Time to Exorcise Another Ghost From the Vietnam War: Restructuring the In.Serviee Conscientious Objector Program

• Author: Major William D. Palmer
• Pages: 04

LD war m any form;

ing and beliefs, and

I Introduction

The Department of Defense, through a directive published August 20, 1971, authorized military personnel who develop canseientious objections to military service to apply for discharge or noncombatant duty.2 Nevertheless, this directive regulating m-service conscientious objectors, like any vehicle built in the 1960s and last serviced in 1971, 1s in need of a serious overhaul It contains standards and procedures that were designed to accommodate a military shaped by the draft, not a volunteer force It incorporates judicially created definitions and standards that, instead of interpreting legislative intent, ignored legislative intent. It stands as an unchanged monument to the military and

*Judge Advocate Genrrah Carpi. United States Army. Presently seiigned BQ Command Judge Advocate, Umfed States Disciplmary Barracka. Fort Leavenworth, KS B A , 1980, St John's Umvermty Mh' J D 1983, Univsrsity of Minnehota. LL M , 1993. The Judge Advocate General's School, United Stales Army. Farmer anaiinmenti inelvde Inatruclor and Assorrate ProfessorDspartment of Law. United States Military Academy. 1989-1992, Post Judge Advocate, Sierra Army Depot, CA, 1986.1983, Assistant Staff Judge Ad%ocate. 6th Infantry Divrs~nand Fort Polk. LA, 1984-1986 This article IB baaed on a wntten diaaerfatian that the author submitted to satmfy ~n pan the Mmster of Laws degree requnements for the 41st Judge Advocate Officer Graduate Covrac

1992). DEP'T or D r r ~ r s ~ .

Dia~crirz 13006,

Cozscr~xnous Osmcrons. pars V A (Aug 20, 1971)

'DRP'T OF DEFENSE. D~RECI~VE

1300 6. Covsci~vrioas Om~croas, para VA lAug 20, 1971:

4. PALMER- Consistent with the national policy to recognize the clams of banafide conmentmus objectors in the military SBTYICB, an application for classification as a

   conscientious objector may be approved for any individual.

   (1) Who is conscientiously opposed to participation

   (2) Whose opposition 1s founded an religmus tram

   (31 Whose position is sincere and deeply held 1

   the law relating to the military as those institutions existed in1971: untouched by subsequent changes in the law; unaffected by the massive restructuring of United States armed forces themselves, and unconcerned by the ongomg, fundamental reshaping of United States defense policy

   The purpose of this article is to analyze critically the law of the in-service conscientious objector and suggest changes to the Department of Defense directive that established the In-service conscientious objector program. The article will review the history, development, and present application of the law governing the in-service conscientious objector The article then will analyze the weaknesses of the current law and suggest ways to address those weaknesses, discussing the legal and policy justifications supporting these suggested changes.

   Recent publicity concerning in-service conscientious ObJeetorS and proposed legmlation addressing the issue demonstrate that the analysis in this article 18 not merely an academic exercise The natmn's mobilization and war effort in operations Desert Shield and Desert Storm focused the nation's attention on the military and on military issues that largely had lay dormant for most of the twenty years since the end of United States involvement ~n the war m Vietnam.

   One of the military 1s8ues to generate attention was the controversy over the ~n-service conacientious objector The nation's first large-scale deployment of forces since the Vietnam Wargenerated a surge in applications for eOnSeientiOuB Objector statu by mlhtary personnel.3 Cases of soldiers who refused orders or

   'The Office of the Assibtant Secretary of Defense for Public AEiairs compiled the fallawing statistics ae of January 2 1992

   CO Appltcafrans 'All Seriicesl

   FY 1989 147 ,120 approved1

   FY 1990 214 1152 approved. 48 disapproved 14 returned 01dmcharged before complef~aniFY 1991 401 (221 approved. 141 disapproved. 39 withdrawn or pmdmg final mion)

   Memorandum from Lieutenant Colonel Doug Hart Ofhe of the Assistant Secretary a1 Defenae far Public Affairs to Maor William D Palmer, at 2-3 IJsn 219921 Ion file with author) The number of applications recerved by the Army durmg the lsat five years breaks down ae follows

   CO Applications rAimyl

   FY 1988 86 156 approved. 0 disapproved. 21 retumsd. wrfhdrswn or admaoryl

   FY 1989 90 '66 approved. 5 disapprored. 29 returned. withdrawn or mdnroryl

   Pi 1990 81 164 approved. 12 disapproved. 8 returned)

   FY 1991 271 1131 approved, 96 disapproved, 45 returned OTwithdrawn)

   who refused to deploy overseas citing consmentious objections to service generated national press coverage.' Service personnel denied conscientious objector discharges challenged these decisions in the federal courts.5

   The visibility the conscientious objector issue gained dunng the Gulf War led to criticism of the current Department of Defense policy as being insufficiently protective of soldiers' interest8 This new-found visibility also led to proposed legdatmn in the 102d Congress that would have codified and broadened the protections and rights of the In-service conscientious objectme This legislation would have expanded the bases for claiming conscientious objector status and significantly added to the military's administrative burdens in accommodating and adjudicating conscientious objector claims.

   Nevertheless, the current public debate concerning the proper treatment of the 1x1-service conscientious objector fails to address the most fundamental questions surrounding the issue. What is the role of an in-service conscientious objector program in an all-volunteer force? Is it appropriate that the nation relies on an mserwce conscientious objector program that 16 a product of the Vietnam war era law of conscientious objector exemptiona from the draft? What IS the impact of an in-service conscientious objector policy an the ongoing restructuring of United States military farces and the country's national defense policy?

   FY 1992 105 (80 approved, 14 dmappraved. 11 returned or ",.,h,3.n~n,

   " ....,

   Memorandum from Colonel Duane Lempke, Dep't of the Army. Office of the Deputy Chief of Staff for Personnel, Specid Renew Boards to Major William D. Palmer at 2-4 lFeb 9 19931 10n file wnh the author)

   'Sei Elizabeth Hudson. Army Doctor Conlinuia Hungni SLiik~ Citing Canacunco, He Seeks Diecharge, WAS= POST, Dec. 13, 1990, at A44 ldescribing Army Captain Jeffrey Wigsnss efforts to make himself u~eleaa to the Army afler the Army and a federal court refused to grant h m a conscientmus abjector discharge), Peter Applebome. Epilogue to Gulf War 25 Marines Face Prison. N YTr~es.

   May 1, 1991, at A5 (reportmg the pending court-martial eases mvdvmg Mannsii who refused to deploy with their units and who clsmed they did 80 based on conselentiova abieetmnsl. Rone Sherman. War Is Not Ouri For ''Cos'', TBE NAT'L L J , Aug 5, 1991. at 1 lrelafing the ~ii~~mitaneeiand legal argument) of the Marines comlcted at coun-martial of militam offenses based on then refuasl

   6Mlhtary Canseientlous Objector Act of 1992. H R 5060 102d Cang , 2d Sess (19921

   The article will address these fundamental ~ssuea and conclude that while the In-service conscientious objector program serves an important function, like the 1960s model car designed and built for the needs of Lts time, the m-service conscientiou8 objector program must be overhauled to meet the demands of the vastly different world it faces today

   11. History of the In-Service Conscientious Objector

   The current policy toward in-serme conscientious objectors 1s

   the latest expression of a national tradition to exempt from eompd-sory military ~emcecitizens who. because of their religmus beliefs, conscientiously appose mditary semee The history of the m.8emce consmentious objector, as contrasted mth the conscientiow objector to compelled or conscripted semee, 1s relatively short Nevertheless, even though the in-senice conscientious objector program 1s recent, it shares the hentage of the larger and far older tradition of accommodating conscientious objectors to compulsoly military senwe Renewing the hstory of ths tradition serves two purposes This history demonstrates the development of the nation's policy of accommodating conscientious abjechon to compelled military senice This histoly also demonstrates the limitations Congress consistently sought to impose on any exemption from compulsory military semee based on conscientious objections

   The eolomal period saw mixed responses by the individual colonies to the conscientious objector. Some colonie~ excused objectors from compulsory serv~ce in the militias, while other colonies forced conscientious objectors to choose between fidelity to then rehgmus beliefs and heavy taxes, fines, or even prison Early in the American Revolution the Continental Congress adopted a redutmn reeogmzmg and respecting conscientious objections to compulsory service in the state militias when such objections arose from religious beliefs This resolution, however, also encouraged Conscientious objectors to "eantrrbvte lrberally in this time of national calamity" and to offer whatever service8 they were able to perform, consistent with their religious principles

   .SELECTWE SERVZCE

   SYSTEM, SPECIAL Moioawm ho 11. YOL I, Cozsciraiiovs OQIECT~OV

   29 119508 [hereinafter Youocna~~l ST~PHEY

   Y

   KOHY,

   JAILED

   FOR PEACE

   6 11986,nThe full text of the July 18, 1776 resalution read SI follawsAb there are some peopls Kho from Rehpova Prinmples cannot bear arms in any c u e , this Congress intends no Violence Lo their Conmenees, but earnestly recomrnmda n to them to Confrikuie Liberally, ~n Lhib bme of national calamity, to the reliei of their dlnfreased Brethren sn the several Colonies, and to do all ofher aerwceb to Lhnr appressed eounfry, whleh they can canaintently wth their Relinaus PnnnolesMOYOCRIPH, supra nore 7, at 33-34

   19931 CONSCIENTIOUS OBJECTORS 183

   The Civil War period saw the first examples...